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Supreme Court Fallout

This Magazine Staff

Update: Shut up, Ralph
In today’s Globe, Alberta Premier Ralph Klein criticized the new appointments, saying that Paul Martin used the nominations to promote the federal Liberals’ left-leaning social policies. So, the Alberta government wants more provincial input in the appointment of Supreme Court judges.
Unreal. What possible business is it of the government of Alberta, or any of the provinces for that matter? Tell you what Ralph, let’s make a deal. We’ll let you have a role in the appointment of judges, if you let the feds tell you how to spend that pile of oil money sitting in your Heritage fund.
Hasn’t Ralph got better things to do than usurp federal powers? Like plagiarising term papers or insulting the homeless?
Lots of fun stuff in the papers today over the appointments of Charron and Abella to the Supreme Court. I agree with the critics who think that the new, supposedly more transparent process is a total sham, but that’s what you get when the Prime Minister makes it up, not as he goes along, but only when the train is actually leaving the station. More evidence that Paul Martin spent a decade plotting to oust Chretien, without spending a minute thinking about what he’d do with the power once he got it. Still John Ibbitson has a very good piece explaining just how difficult it is to strike a balance between the need for a competent, independent judiciary, on the one hand, and an open, accountable nomination procedure on the other.
What about Abella and Charron? Charron seems fairly uncontroversial, but Abella has the political right in a fit. In the Post, Andrew Coyne is really upset, calling for Abella’s appointment to be withdrawn. He writes:
“This is the first time I can recall that a judicial appointment has been used as a political weapon, in the most partisan sense of the word… Abella is so far out of the mainstream… a deliberate provocation… a polarizing figure… a wrongheaded choice.”

His argument is that Abella has been chosen not because of merit, but because she sure to advance the particular social agenda of the Liberal Party of Canada, especially over gay marriage. Coyne has been making the point for a long time: that worries over MPs scrutinising judges are misplaced, because the process is already politicized — it is just that it happens in the backrooms, out of public view. A public nomination procedure would at least bring the nakedly partisan calculations to the fore.
I’ve never entirely agreed with Coyne, until now. I think he’s right this time, the appointment of Abella is a “deliberate provocation” — to Parliament, to the Oppostion, and to the very idea that there are legitimate political views in this country other than those held by the mandarins in the Natural Governing Party. The fact that I more or less agree with many of those views (as does Coyne, for that matter) is beside the point; were I a social conservative, I’d be outraged at her appointment.
But here’s the worrisome thing: Abella’s supporters are actually making Coyne’s point for him. From Shawna Richer’s piece in today’s Globe:
Susan Boyd, law professor and chair of feminist legal studies at the University of British Columbia, expects to see more sensitivity to gender dynamics on the Supreme Court, something she said has been missing since the retirement of Claire L’Heureux-Dubé in 2002.
“We’re doing really well to have such strong female voices on the highest court,” Prof. Boyd said. “I welcome a decision-maker willing to look at the law in its broader gendered social context.”
“There’s a stronger likelihood of that when you have anyone from a group that has not been as represented as fully in the legal system in the past. It’s not like there’s going to be a uniform women’s voice coming out of Supreme Court decisions. But psychologically, this broadens the perspective.”

Apart from the nauseating gender determinism implicit here, this is an open admission that Abella represents special interests, and is there to advance a specific political agenda, which is precisely Coyne’s point. And this is extremely bad news. If both the left and the right now agree that members of the Supreme Court are political actors, then there is no longer any point in maintaining the charade of an independent, impartial judiciary. In which case, why don’t we elect them? At the every least, what possible reason can there be for allowing the Prime Minister to appoint them?

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