Ottawa’s best-kept secret?

In early September, when Stephen Harper nominated Tom Cromwell to fill a vacancy on the Supreme Court of Canada, he brought the first part of a promised and formal selection process to a sudden and premature end. Cromwell was still supposed to be publicly interviewed by a parliamentary committee before his appointment was confirmed, but the Nova Scotia judge was left twisting in the wind while an election was fought and Parliament prorogued. Then, without any public interview, Harper made his choice final, burying this important announcement the same day he announced a long list of Senate appointments. The whole process took almost four months, ignored procedures that Harper himself had earlier approved, involved neither Parliament nor the public, and left a bad taste in many mouths.

The botched selection process was a pity because it tainted an otherwise sound appointment. Almost everyone agrees that Cromwell, 56, was a good choice. His resumé is impeccable, if a little dull—he’s from what political scientist Peter Russell calls the “grey middle.” Cromwell has been a full-time law teacher and a judge. He’s a graduate, in music and law, of Queen’s University in Kingston. He went to Oxford University and graduated with the notoriously difficult bachelor of civil law degree. From 1982 until 1997, Cromwell taught at Dalhousie Law School, taking a three-year leave of absence to be executive legal officer for then-Supreme Court chief justice Antonio Lamer. He was appointed to the Nova Scotia Court of Appeal in 1997. He’s bilingual.

The legal profession has hailed Cromwell’s appointment. It usually does with Supreme Court judges. The widely read legal blog www.slaw.ca applauds 10 good things it says Cromwell will bring to the court. They include his musical skill (he plays the piano well), and his Oxford qualifications, which offset, says the blog, Supreme Court Justice Ian Binnie’s degree from rival Cambridge. More to the point are some other things on the blog’s list: Cromwell’s passion for court reform, his interest in law reform, and his practical approach to legal reasoning. Cromwell seems particularly interested in the structure of the court system, alternative means of dispute resolution, and the rules of civil procedure.

People say nice things about Tom Cromwell. They say he’s courteous, but firm. He’s thought to be non-ideological, a centrist. “He was the overwhelming choice of people who . . . made recommendations to me,” said Justice Minister Rob Nicholson, when he announced the nomination in September. A former president of the Canadian Bar Association said approvingly, “he’s the kind of guy who’d bag his own groceries.” But, as almost always with these appointments, the Canadian public only knows what is on a short and official curriculum vitae; it will have no real opportunity to satisfy any curiosity beyond that. Cromwell’s backstory will soon be forgotten, as he retreats into the shadows of high judicial office.

Also at Macleans.ca: When lawyers are only for the rich

The Supreme Court Act gives the executive branch the power to appoint a Supreme Court judge. That means the prime minister decides. Any accompanying brouhaha means little or nothing. Tom Cromwell’s appointment demonstrated this dramatically.

In the early part of this decade, prompted by newspaper editorials and criticism by law professors, political and public sensitivity began to develop over the autocratic and secret process of choosing Supreme Court justices. This led Irwin Cotler, then minister of justice, to take the modest step in 2004 of appearing before a parliamentary committee to discuss the pending appointments of justices Rosalie Abella and Louise Charron. Abella and Charron did not appear themselves, and the committee did not have much of a discussion. Peter MacKay, an opposition MP at the time, described the hearing as window dressing.

In April 2005, Cotler proposed a reformed process. A broad-based advisory committee would be struck each time there was a Supreme Court vacancy. The minister of justice would give this committee a list of candidates, and it would pick three of them for the prime minister’s consideration. Observers were not impressed. Jacob Ziegel, a law professor at the University of Toronto, said the advisory committee “would simply act as a rubber stamp for the government’s pre-selected list of candidates.” What was striking about the proposal, he added, was “the government’s neurotic obsession with perpetuating executive paternalism into the 21st century.”

A few months later, Cotler had a chance to put his reformed process into practice. In August 2005, justice John Major announced he would leave the court at the end of the year. Cotler appointed an advisory committee and gave it six names to consider. The committee, as instructed, picked three. But, before an appointment could be made, the Paul Martin government was defeated and Stephen Harper became prime minister.

Harper stayed with his predecessor’s short list, perhaps because it contained a name that appealed to him. He announced his choice on Feb. 23, 2006—Marshall Rothstein, a Federal Court of Appeal judge from Manitoba, thought to be conservatively inclined. But surprisingly, perhaps showing his populist roots, Harper wanted Rothstein publicly interviewed by a parliamentary committee before he was sworn in.

The interview took place four days later. Committee members had obviously had little or no opportunity to do things you might expect of them—for example, read judgments written by Rothstein, or cogitate on his qualifications. Professor Peter Hogg of Osgoode Hall Law School began the proceedings by lecturing the committee about what it should and should not do. Said Hogg, “there are some questions that he [Rothstein] cannot be expected to answer.” These questions were, of course, the very ones that most people wanted answered. Said Hogg, “He cannot express views on cases or issues that could come before the court. He cannot tell you how he would decide a hypothetical case . . . he cannot tell you what his views are on controversial issues . . . ” John Major told the CBC that the hearing was ridiculous, and that professor Hogg was a grandstander and glad-hander.

But with Rothstein’s appointment, Supreme Court watchers heaved a sigh of relief. No appointment was expected until 2013, when Justice Morris Fish reached the mandatory retirement age of 75. Then came justice Michel Bastarache’s surprise resignation last April, effective at the end of June. Bastarache, who is from New Brunswick, occupied the seat reserved by custom for the Atlantic provinces.

On May 28, 2008, Justice Minister Nicholson announced yet another new process for choosing the new judge. To identify a pool of qualified candidates, Nicholson would consult with the attorneys general of the Atlantic provinces as well as leading members of the legal community. He would compile a list (no doubt in consultation with the Prime Minister), which would then be reviewed in secret by a selection panel comprised of five members of Parliament—two from the government caucus and one from each of the opposition parties. The panel would provide a three-candidate short list to the Prime Minister. The person chosen from the list by the Prime Minister would appear at a public hearing of a parliamentary committee. The committee would not have a veto power.

Cabinet ministers Christian Paradis and Diane Ablonczy were appointed as the government representatives on the panel. Dominic LeBlanc was there for the Liberals; Joe Comartin for the NDP; and Réal Ménard represented the Bloc Québécois. Before the first meeting of the panel, on Aug. 12, Comartin and Ménard objected to cabinet ministers being members. “They’re just there as mouthpieces for the Prime Minister’s Office,” Comartin said. The first meeting was six hours of bad-tempered wrangling. At the beginning of September, two teleconferences were cancelled because the non-government members were “not available.” On Sept. 5, two days before he called an election, Harper announced that Tom Cromwell was his choice. Forget the advisory panel; Harper said it was holding up the selection process. Panel member Dominic LeBlanc, a New Brunswick MP, was particularly miffed. He insisted that meetings had been scheduled for that very week. LeBlanc said wistfully, “I was going to have the committee at my house in Grande-Digue for a lobster dinner.”

Cromwell was left in limbo, waiting for the election results. Perhaps he used the time to prepare for a public appearance before a parliamentary committee. If he did, it was a waste. Harper, re-elected on Oct. 14, called Parliament into session on Nov. 18, but had it prorogued on Dec. 4. There was no time or inclination for a parliamentary committee to go through the empty formalities of quizzing someone the Prime Minister had chosen as a Supreme Court judge. On Dec. 22, Harper announced that Tom Cromwell was the new judge. He was sworn in on Jan. 5.

Not that there hadn’t been months of speculation, and intense jockeying for advantage. Following Bastarache’s resignation, many senior judges, lawyers and law professors from the Atlantic provinces must have gazed into a full-length mirror and dreamed of how well they would look in Supreme Court ceremonial robes of bright scarlet trimmed with white mink. Politicians from Eastern Canada got busy urging Supreme Court representation for their respective provinces. None were louder than Newfoundlanders, aggrieved that no one from the Rock had ever been appointed to the Supreme Court. Newfoundland’s justice minister, Jerome Kennedy, thundered, “Every day the Supreme Court of Canada passes judgments that affect the lives of Newfoundlanders and Labradorians and I believe a serious oversight has occurred by not allowing our province a voice in these decisions.” He would later describe Cromwell’s nomination as “a slap in the face.” It took Russell Wangersky, an editor at the St. John’s Telegram, to ask the obvious question: “What is a judge from this province supposed to do on the Supreme Court that a judge from another province wouldn’t?”

There was more. Right-wing commentators who dislike the Charter of Rights and Freedoms demanded someone with a strong commitment to the division of powers (read, the primacy of Parliament) be appointed. Human rights advocates, leery of legislators who might be swayed by narrow-minded majority opinion, railed against the old-fashioned notion of parliamentary sovereignty. Other voices chimed in: a woman should be appointed (that would mean a female majority on the court); we should have a judge from the First Nations.

The loudest voices of all were heard on the issue of bilingualism. John Major, a unilingual Albertan, observed that translation services at the court were excellent and the ability to speak both official languages should not be a prime concern. Claire L’Heureux-Dubé, another retired Supreme Court judge, countered: “The principle is we are a bilingual country. Period.” Liberal MP Denis Coderre tabled a private member’s bill amending the Official Languages Act to require Supreme Court judges to be bilingual. (All the current judges, with the exception of Rothstein, are fluent in both languages.) The National Post called Coderre’s bill a “bad idea,” Coderre an “anglo-baiter,” and conjured up the image of subjecting a Supreme Court candidate “to a literacy test in some backroom, with a proctor lurking over him, stopwatch in hand, as he attempted to navigate the imparfait du subjonctif . . . ”

Quebec’s National Assembly voted unanimously to demand that only bilingual judges be appointed to the Supreme Court: this is not a request, it is a demand, said Premier Jean Charest. Finally, Newfoundland Justice Minister Jerome Kennedy, still all riled up, had his own say on the subject. Speaking of Chief Justice Derek Green of the Newfoundland Supreme Court, Kennedy said, “if he were appointed to the Supreme Court of Canada today, I’m sure he could be bilingual by the time it came to take his seat. He is that bright.”

With that, the debate over bilingualism at the Supreme Court of Canada seemed mercifully over. A grateful nation went back to the long, deep sleep of summer. But Chief Justice Beverley McLachlin was still awake, and had something other than bilingualism on her mind. McLachlin noted at the Canadian Bar Association convention in August that Michel Bastarache had considerable experience in corporate and commercial law, and it would be nice to maintain some balance on the court. Was she attempting to influence the new appointment? Some said she was, and that it was improper.

Make no mistake, it matters a lot who is appointed to the Supreme Court. Its nine judges are among the most powerful people in Canada—perhaps the most powerful. That’s because they possess the ability, greatly enhanced by the 1982 Charter of Rights and Freedoms, to strike down federal and provincial legislation.

In the late 1960s, I was clerk to Supreme Court justice Wilfred Judson. An intemperate recent law graduate, I urged him one day to give an aggressive judgment based on some policy argument or other that I thought might appeal to him (and appealed to me). His response? Judson gestured to Parliament’s Centre Block, visible through the windows of his chambers, and said, in a tired but patient way, “That’s for them to decide.” Most of the judges of that and earlier generations felt exactly this way. Parliament, not the courts, was the place where laws were made.

Now it is a different world. Since the 1982 Charter, the social fabric of Canada has been changed by the Supreme Court, and continues to be changed, often in ways that astonish those who cling to the idea of parliamentary supremacy. In 1988, the Morgentaler decision invalidated Canada’s abortion laws. The 1993 Sue Rodriguez case, contrary to what students of the Morgentaler case might have expected, denied help to someone who wants to commit suicide and needs assistance. Delgamuukw, in 1997, determined the extent of Aboriginal title. The 2004 same-sex marriage reference determined that the federal government can change the definition of marriage and give gays and lesbians the legal right to marriage. The Chaoulli decision, in 2005, struck down a Quebec law banning private medical insurance. The same year, the Labaye judgment held that group sex in a commercial club did not offend the community standard of tolerance. These are only a few examples of major issues decided by the Supreme Court of Canada since the Charter.

The Supreme Court’s heavy hand is not always welcome. Not long ago, a retired law professor at the University of Western Ontario, Robert Martin, wrote an incendiary book called The Most Dangerous Branch: How the Supreme Court of Canada Has Undermined Our Law and Our Democracy. Martin argues that the Supreme Court, in hot pursuit of a left-wing agenda, has derailed the legislative process in an egregious way. Many in Canada feel like this. Others believe that the will of the majority can easily become the tyranny of the majority, and that only the courts, busily defining and enforcing minority rights, stand in the way. Professor Kent Roach, of the University of Toronto, has advanced an appealing middle-of-the-road view. In his book, The Supreme Court on Trial, Roach argued that “the back and forth between courts and legislatures . . . allows people to participate in different ways through different institutions.”

This debate is not unique to Canada. Anthony King graduated from Queen’s University, went to Britain as a Canadian Rhodes Scholar, and stayed there to become a distinguished academic and political commentator. His book, The British Constitution, published in 2007, argues that a new constitution has emerged in the United Kingdom since the 1970s. Britain’s governing arrangements, he thinks, have been “substantially transformed.” One important reason is the incorporation of the European Convention on Human Rights into British law, limiting parliamentary sovereignty and giving judges new power. Oxford professor Stein Ringen, reviewing King’s book in the Times Literary Supplement, commented, “With its new powers, the judiciary woke up from ‘a long sleep,’ started to assert itself, and the senior judges metamorphosed into a political class of activists.” Many would say that the same thing has happened in Canada: for good or ill, our senior judges have woken up from a long sleep and have become a new political class of activists.

As for the United States, the famous legal philosopher Ronald Dworkin recently declared: “The revolution that many commentators predicted when president Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.”

When the prime minister chooses a Supreme Court of Canada judge, he chooses someone who, in the long haul of history, may turn out to be more important than he is. Former prime minister Paul Martin has retired to his farm in the Eastern Townships, but the two Supreme Court judges he appointed, Rosalie Abella and Louise Charron, are busy writing judgments in Ottawa. They will be doing so for many years to come if they remain on the court until the mandatory retirement age of 75 (Abella is 62; Charron, 57). Tom Cromwell will turn 75 in 2027. Where Stephen Harper will be in the years leading up to 2027 is anybody’s guess.

It’s impossible to say today what difference the Cromwell appointment will make to the Supreme Court. Cromwell seems quintessentially Canadian—cautious, courteous, competent, middle-of-the-road. He joins eight other justices with, by and large, the same characteristics, in a court led by a disciplined and pragmatic chief justice, Beverley McLachlin. The Canadian Supreme Court is not ideologically divided like the U.S. court, where there is considered to be a right-wing bloc (Roberts, Alito, Scalia and Thomas), a moderate grouping (Breyer, Ginsburg, Souter and Stevens), and the all-important swing vote, now in the hands of Justice Anthony Kennedy. And there is the curious fact of the Canadian Supreme Court’s diminishing caseload. In 1997, there were 107 judgments handed down. In 2007, the Court gave 58 judgments, the lowest number since 1975. Some have suggested the Court may be lethargic, or has become marginalized in recent years as important disputes are settled elsewhere, in other ways.

But this could change dramatically. If truly conservative governments get a firm grip on Canada, the Supreme Court may become an ideological battlefield, with those on the left trying to use the law, and particularly the Charter, to undermine government policies they dislike. At the same time, a parlous and changing economy could thrust complex business disputes into the judicial limelight, and create new difficulties in the Supreme Court; only two of the justices, Binnie and Rothstein, have significant backgrounds in commercial law.

One thing is certain. A better way of choosing Supreme Court judges must be found, and made mandatory by amendment to the Supreme Court Act. The new way must avoid the embarrassing confusion and uncertainty that surrounded the Cromwell appointment. It must recognize the constitutional importance and great power of a Supreme Court justice, and be democratic. And it must operate very publicly. The best way of accomplishing these objectives is to require parliamentary confirmation of a prime ministerial nominee.

In the United States, Supreme Court justices are nominated by the president and must be confirmed by the Senate following public, televised hearings where senators feel completely free to ask any question they like. These hearings can be brutal, as anyone old enough to remember the 1991 Clarence Thomas confirmation process will agree. Thomas’s own comment at the time on his Senate confirmation hearings was to the point: “This is a circus. It’s a national disgrace.” Brutal, perhaps, a circus, maybe, but very valuable. In 1987, Robert Bork, nominated by Ronald Reagan, was quizzed by the Senate judiciary committee for five days, only to be rejected. Linda Greenhouse, who covered the Supreme Court for the New York Times for a long time, recently wrote that the debate over the Bork nomination was “fair and profound,” and became “a national referendum on the modern course of constitutional law.” Over the last 40 years or so, seven nominations have either been rejected by the U.S. Senate or withdrawn by the president when it became clear that rejection was likely.

Robust as the U.S. appointment process is, lately it has been authoritatively described as inadequate. In The Next Justice: Repairing the Supreme Court Appointments Process, Christopher Eisgruber, provost of Princeton University and former law clerk to U.S. Supreme Court Justice John Paul Stevens, argues that Americans need “a better way to talk about Supreme Court appointments, and they need it now, before any president nominates the court’s next justice.” The U.S. appointments process, says Eisgruber, is broken. The New York Times has weighed in on this subject: an editorial in April of last year said, “senators should examine a nominee’s entire legal career” and the Senate “needs to upgrade the confirmation process.”

The same is true in spades of Canada.

Philip Slayton was dean of law at the University of Western Ontario, and a partner in a major Canadian law firm. He is the author of Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession, and is now working on a book about the Supreme Court.