Reforming the Supreme Court Appointment Process, 2004-2014: A Ten Year Democratic Audit

Abstract

This paper analyzes the Supreme Court appointment process over the 10 year period from 2004 through the end of 2013. It conducts a democratic audit of the Supreme Court appointment process and not an evaluation of the judges appointed through this process.

The paper has six parts. Part I is an introduction. Part II presents a short history of the Supreme Court appointments process between 2004 and 2013. Part III introduces the concept of a democratic audit and identifies the drivers of change to the appointments process. It argues that prior to 1992 proposed reforms to the Supreme Court amendment process were motivated by concerns about federalism: incorporating a role for the provinces in the appointment process. However, after the failure of the Charlottetown Accord (1992), the motivation changed to concerns about the "democratic deficit" so that reforming the Supreme Court appointment process became part of a democratic reform agenda proposed first by the opposition Reform Party, then by Liberal leader Paul Martin both in his leadership campaign and during his tenure as Prime Minister and finally by the Conservative Party led by Prime Minister Stephen Harper. This part also addresses an issue that did not factor into the reforms: any perceived deficiency in the quality of past appointments or concerns about the legitimacy of the Supreme Court itself. Since 1992, the key factors that were articulated as the basis for changing the appointment process have been (1) transparency; (2) accountability: and (3) public knowledge about the Supreme Court and its judges. These are the factors that I use for evaluation through this democratic audit.

In Part IV, I conduct the democratic audit and find that the reforms have largely failed to deliver on the promised transparency and accountability. Conversely, I also conclude that the reforms have been very successful in serving a public education function about the Supreme Court and the work that Supreme Court judges do. Part V offers my recommendations for "reforming the reforms" in order to achieve the goals of transparency and accountability in the appointment process. I argue that the government should publish a detailed protocol to be styled Guide to Appointment of Supreme Court Justices which would set out the qualifications, consultation to be followed, procedure for evaluation, etc. I propose a revamped advisory committee which would operate in a more open and transparent fashion and produce a report on their work. The public hearings of nominees should continue, but only if the Minister of Justice also appears to answer questions about the process and about why the nominee was selected. Finally, the paper ends with a brief conclusion in Part VI.

Keywords: Supreme Court, Judges, Appointment, Executive, Judiciary