Harper nominates Justice Thomas Cromwell

[jdobbin]

I think maybe professionals in the field should make up a committee that selects the best person for the job, then if the PM would like to be a figurehead and sign off on it, he can.

So you think the PM should not be involved in choosing? I liked the old system where a selection committee outside of Parliament proposed choices.

[cybercoma]

So you think the PM should not be involved in choosing? I liked the old system where a selection committee outside of Parliament proposed choices.

That's what I've been trying to say. I don't think the PM should choose. I've been reading The Friendly Dictatorship by Jeffrey Simpson and, although the book is outdated, when you look at the amount of appointments the PM makes or can make, his power seems nearly absolute.

Edited September 7, 2008 by cybercoma

[Canadian Blue]

I believe US Supreme Court Justices need to be approved by the Senate. Perhaps we should have a similar system here once the Senate is made up of elected representatives. That is unless the Liberal Party takes power again and they immediately fill the benches with people who gave them money and didn't get elected as MP's.

[jdobbin]

That's what I've been trying to say. I don't think the PM should choose. I've been reading The Friendly Dictatorship by Jeffrey Simpson and, although the book is outdated, when you look at the amount of appointments the PM makes or can make, his power seems nearly absolute.

I have no problem of a selection committee making recommendations. I don't know removing the government from the process of choosing a judge would make the system better.

[jdobbin]

That is unless the Liberal Party takes power again and they immediately fill the benches with people who gave them money and didn't get elected as MP's.

Like the Tories? Still waiting to see some of the interesting judges the Tories have been choosing from their ranks.

Some of them are most qualified but some don't follow the recommendations of the Canadian Bar Association for time out of office before they get appointed.

Edited September 7, 2008 by jdobbin

[cybercoma]

I have no problem of a selection committee making recommendations. I don't know removing the government from the process of choosing a judge would make the system better.

Perhaps you're right. Maybe removing the government from the picture entirely is the wrong idea, however, I don't think the decision should be entirely up to the PM. If the selection committee makes a list of choices, then the PM simply picks the justice that serves the party's interest, that doesn't make things any better.

I'd suggest using the Senate, in the interest of regional representation, but I think there needs to be a serious overhaul done on that before giving it any more responsibility.

Edited September 7, 2008 by cybercoma

[jdobbin]

Perhaps you're right. Maybe removing the government from the picture entirely is the wrong idea, however, I don't think the decision should be entirely up to the PM. If the selection committee makes a list of choices, then the PM simply picks the justice that serves the party's interest, that doesn't make things any better.

I'd suggest using the Senate, in the interest of regional representation, but I think there needs to be a serious overhaul done on that before giving it any more responsibility.

I recognize the inherent risk of letting the PM make the picks but I haven't seen anything better thus far. I thought the selection committee might be helpful but it is bogged down with games being played by all sides.

[marksman]

Especially federal court justices, that's where bad decisions make the most damage.

How do federal judges cause more damage? Any examples of this damage?

[cybercoma]

I recognize the inherent risk of letting the PM make the picks but I haven't seen anything better thus far. I thought the selection committee might be helpful but it is bogged down with games being played by all sides.

Yeah, but let's be honest, creating a selection committee of MPs is a bad idea from the start because it was inevitable that the politics would get in the way. If the selection committee consisted of outside professionals, it would be a better plan; however, that selection committee should not be created through even more appointments by the PM. I'm not really sure how to set it up, but I'm pretty sure the why is obvious.

[jdobbin]

Yeah, but let's be honest, creating a selection committee of MPs is a bad idea from the start because it was inevitable that the politics would get in the way. If the selection committee consisted of outside professionals, it would be a better plan; however, that selection committee should not be created through even more appointments by the PM. I'm not really sure how to set it up, but I'm pretty sure the why is obvious.

It wasn't my first choice for how judges should be selected. I still think that the legal community should be the primary nominator of qualified jurists but the PM has to chose ultimately.

So far, both Conservative and Liberal government in the past have chosen mostly excellent judges. I really disagree we have a dysfunctional judicial system. We might have problems with the justice system but that generally remains within the legislative realm to correct.

Edited September 7, 2008 by jdobbin

[cybercoma]

Just because there haven't been problems in the past doesn't mean the system itself is potentially flawed. A long standing PM could potentially stack the SCC with judges that will make decisions favourable to the PM's party and policies.

I'll be honest, I don't know a whole lot about which PMs have made appointments and when, so I can't really give any sort of in depth debate on the thing. I'm just saying that the PM of Canada wields an awful lot of power, especially considering he's not elected.

[jdobbin]

Just because there haven't been problems in the past doesn't mean the system itself is potentially flawed. A long standing PM could potentially stack the SCC with judges that will make decisions favourable to the PM's party and policies.

I'll be honest, I don't know a whole lot about which PMs have made appointments and when, so I can't really give any sort of in depth debate on the thing. I'm just saying that the PM of Canada wields an awful lot of power, especially considering he's not elected.

In the post war years, I believe the Supreme Court appointees have been mostly good picks. Brian Mulroney made some inspired choices as well.

I understand the risk you mention but we have not seen evidence that this has happened.

I know some people have attacked the judges but I believe it is unfair and unwarranted. Moreover, I don't think electing them would make it better if that is what the outcome some of the critics want.

[cybercoma]

In the post war years, I believe the Supreme Court appointees have been mostly good picks. Brian Mulroney made some inspired choices as well.

I understand the risk you mention but we have not seen evidence that this has happened.

I know some people have attacked the judges but I believe it is unfair and unwarranted. Moreover, I don't think electing them would make it better if that is what the outcome some of the critics want.

Maybe an election would work, but an election held by professionals in the field. Perhaps judges and lawyers across the country could vote on it. And if you still think it should ultimately be up to the PM to decide, he can make his choice from the top 5 (insert random number) vote holders.

Would that be a fair system to all parties concerned?

[Wild Bill]

In the post war years, I believe the Supreme Court appointees have been mostly good picks. Brian Mulroney made some inspired choices as well.

I understand the risk you mention but we have not seen evidence that this has happened.

I know some people have attacked the judges but I believe it is unfair and unwarranted. Moreover, I don't think electing them would make it better if that is what the outcome some of the critics want.

Well, perhaps personal values can skew one's perspective. If you're looking for judges who agree with your own values then it becomes a question of partisanship.

If you're a populist democrat then it's a completely different situation. Do the Supreme Court judges reflect the popular will of the people?

These are very different parameters. We really have to nail this down before we can properly chew it over...

[cybercoma]

Forget everything I've said and maybe have a read through this:

http://www.cba.org/CBA/submissions/pdf/04-10-03-eng.pdf

It's an article on the Supreme Court of Canada Appointment Process by the Canadian Bar Association. In it they examine the processes in other nations and make a recommendation about how we should appoint federal judges here in Canada.

[jdobbin]

Maybe an election would work, but an election held by professionals in the field. Perhaps judges and lawyers across the country could vote on it. And if you still think it should ultimately be up to the PM to decide, he can make his choice from the top 5 (insert random number) vote holders.

It gets pretty complicated quick as you keep the adding ingredients to the stew.

Most judges would not want to get into the politics of selecting other judges. And many lawyers would probably not want to forever electing judge candidates over and over.

The present selection committee is probably a good mix although the Tories have made someone from the police a permanent part of the committee. Add some of the Tory government appointments and there are sometimes more than one police member on these committees.

This is that control thing that Harper often wants to assert over every process.

I certainly don't mind some police on a committee to select judges but let's not forget that judges hear a lot more than criminal cases.

Would that be a fair system to all parties concerned?

I just don't know that you could have a continuous election process of judges. They don't go on fixed terms or anything.

[jdobbin]

Forget everything I've said and maybe have a read through this:

http://www.cba.org/CBA/submissions/pdf/04-10-03-eng.pdf

It's an article on the Supreme Court of Canada Appointment Process by the Canadian Bar Association. In it they examine the processes in other nations and make a recommendation about how we should appoint federal judges here in Canada.

I've read this report and saw that the conclusion was better advisory panels and better feedback between attorney-generals and justice ministers of the provinces. I agree with what it says.

Edited September 7, 2008 by jdobbin

[cybercoma]

The present selection committee is probably a good mix although the Tories have made someone from the police a permanent part of the committee. Add some of the Tory government appointments and there are sometimes more than one police member on these committees.

This is that control thing that Harper often wants to assert over every process.

Appointments: that's the problem with the whole process. It doesn't matter who's at the helm, they're going to do whatever they can to stack the deck in their favour. I think patronage is a big problem, since it is used as a reward for those loyal to their party. It makes it seem as though the judicial branch owes a debt to the legislative branch. Whether that's true or not doesn't matter because public perception is one of the most important factors in the selection process, imho. Edited September 7, 2008 by cybercoma

[jdobbin]

Well, perhaps personal values can skew one's perspective. If you're looking for judges who agree with your own values then it becomes a question of partisanship.

I had first thought Conservative appointments of Judge Sterling Lyon and Judge Jeffrey Oliphant would make for a partisan problem but they were excellent judges in the job.

I know there have been some uneven judges. Not all are going to be gold stars but the quality has been quite good.

If you're a populist democrat then it's a completely different situation. Do the Supreme Court judges reflect the popular will of the people?

I think they do. They represent the Constitution which was approved and while some have been upset by things like striking down the abortion laws, the government has always had the right of notwithstanding.

This is why I say that the problems are not mainly focuses on the judiciary. It should be on the laws as written by the government. Easy to blame the courts but the final authority on things like abortion and same sex marriage remain and have always remained with Parliament.

As for criminal cases, blaming the judges for plea bargains ignore the role of the police, prosecutors, defence attorneys and the government itself in getting confessions.

These are very different parameters. We really have to nail this down before we can properly chew it over...

I'd hate to see us go down the route of what some other countries have unless it proved to be a superior process.

[Argus]

The idea is not sound. The politicization of the selection process and the review should be dropped. Harper should have used the past system which had delivered mostly excellent federal court judges.

You mean we should go back to handing out judicial appointments based on how much free services lawyers donate to the Liberal Party?

Or appointing incompetent imbeciles to the bench because they happened to have been Liberal cabinet ministers - ie, Paul Cosgrove?

[jdobbin]

Appointments: that's the problem with the whole process. It doesn't matter who's at the helm, they're going to do whatever they can to stack the deck in their favour. I think patronage is a big problem, since it is used as a reward for those loyal to their party. It makes it seem as though the judicial branch owes a debt to the legislative branch. Whether that's true or not doesn't matter because public perception is one of the most important factors in the selection process, imho.

It is why I agreed with the CBA that potential appointments to the bench should not come from people who have worked for the government or who were in government for a minimum of two years cooling off period.

I wish Harper had listened to that before appointing a recently defeated attorney-general. Despite great credentials, it hurts, as you say, the public perception.

[jdobbin]

You mean we should go back to handing out judicial appointments based on how much free services lawyers donate to the Liberal Party?

Or appointing incompetent imbeciles to the bench because they happened to have been Liberal cabinet ministers - ie, Paul Cosgrove?

Or the recent appointment by Harper of Nova Scotia's attorney-general.

I have pointed out here that I believe the CBA's point about a two year cooling off period would address the issue of political patronage. I don't believe judges should come straight from the politics into the job.

Two years out of politics. I think it is the best way.

[fellowtraveller]

The #1 problem with the Supremes is their activism, which was actively encouraged by the Liberals during their reign of mediocrity.

The concept of letting the legal community nominate , review, vet, promote and ultimately select candidates is utterly retarded. Given that power, the intensity of grotesque politicking within that community would make a maggot gag. There is no reason to believe the best candiadte would emerge, only the best campaigner. Our system is dominated by lawyers now, enough already.

My choice for picking Supremes would be based on the US model. At least then everybody has some idea of the background of the candidate.

[jdobbin]

My choice for picking Supremes would be based on the US model. At least then everybody has some idea of the background of the candidate.

And that has been superior in every way?

[Smallc]

The concept of letting the legal community nominate , review, vet, promote and ultimately select candidates is utterly retarded. Given that power, the intensity of grotesque politicking within that community would make a maggot gag. There is no reason to believe the best candiadte would emerge, only the best campaigner. Our system is dominated by lawyers now, enough already.

Heaven forbid that our legal system be dominated by legal professionals. Thats who I would trust with the process. In general people don't know enough about what their voting upon to make an informed decision. Its our right to vote in politicians, but politics should be kept out of the judicial branch as much as possible.