The CBC’s Chris Hall already had a story along those lines a short while ago, but today the Globe and Mail contains Sean Fine’s masterful in-depth account of the back-story to the failed appointment of Justice Nadon to the Supreme Court and the government recent attempts to portray Chief Justice McLachlin as having acted improperly on this the matter when it was being considered by the Supreme Court. On this issue, we already knew that the Chief Justice’s attempts to alert the government to the doubtful legality of appointing a judge from one of the federal courts to a Québec seat on the Supreme Court came well before there was any court case, and indeed well before Justice Nadon’s appointment. But we now learn from Mr. Fine’s story the context in which the Chief Justice acted: no fewer than four of the six names on the short list from which the eventual nominee would be chosen, which was shown to her, were those of judges sitting on the federal court of appeal or the federal court. Quite clearly, this was the direction in which the government want to go. The Chief Justice’s warning made even more sense than we knew so far.
The reason why the government was so keen on appointing a judge from the federal courts rather than one from the Québec Court of Appeal or even a practising lawyer, was purely ideological. As Mr. Fine describes it,
the government, though aware of the risks, worked the selection process to find a more conservative judge than it believed was available in Quebec. The province’s top judges and lawyers were largely ignored…
Mr. Hall’s earlier article tells much the same story, in less detail. The government wanted a “conservative” judge, whatever exactly that means in Canada, and could not find one in Québec, so they went for the dubious gambit of appointing a judge whose eligibility and qualifications for a position on the Supreme Court were both doubtful. As we now know, the ploy backfired.
Now I don’t think that a government trying to find a judge with whose (perceived) ideology it is comfortable is necessarily improper. To be sure, “everybody does it” is not necessarily a justification, although it does tell us something about the practicability of alternatives. But, as I have argued here, constitutional law, on which a government’s assessment of potential Supreme Court judges is likely to focus, is bound up with ideology, and it would be absurd to expect a government to ignore it altogether in appointing a judge. And a judge whom the government considers to be somewhat of an ideological ally can still be an independent and critical thinker, perfectly capable of ruling against it, as Justice Wagner’s example demonstrates.
However, choosing the ideologically closest among a group of qualified candidates (as the Harper government may have done in appointing Justice Wagner) is one thing; deeming the entire memberships of a province’s bench and bar unqualified because ideologically suspect is something else. It seems to me that the Harper government’s conduct leading up to the failed appointment of Justice Nadon, and after its rejection by the Supreme Court, is reprehensible not merely because it considered the ideological leanings of potential judges, but because of its outright refusal to take the situation in Québec, including the views prevalent among its bench and bar as it is. It is not just a childish tantrum, but a failure to take seriously the diversity of Canada (and not only, by the way, the “Québec values” of which the Supreme Court speaks; a hypothetical NDP government that refused, for months on end, to appoint a judge from Alberta because it considered that province’s legal community too right-wing would be committing the same sin).
There is also a broader point here, beyond the government’s mishandling of one (and perhaps soon two) appointments. Although it has endeavoured to change Canada in any number of ways, the Conservative government hasn’t even tried to articulate anything like a coherent constitutional theory which might attract the support of some fraction of the legal community ― the most we have got from it are vague platitudes about judicial restraint and being tough on crime. Nor has it helped develop any sort of organization or forum into which a Tory constitutional narrative or theory could be developed. This is in contrast to the conservative movement in the United States, which has invested considerable energy into the development of legal, and especially constitutional, theories, and which has, in the Federalist Society, an influential and vibrant organization where these theories can be debated and refined. Whether the creation of a conservative constitutional narrative in Canada and the polarization of the legal community that may well follow or accompany it would be good things is, of course, debatable. But if, for better or worse, the Canadian right wants to leave a lasting imprint on the country’s legal institutions, it is not optional.
The Harper government’s behaviour is thus a somewhat curious mix of stubbornness and laziness; of discontent with the world and of unwillingness to undertake the work necessary to change it in a durable rather than accidental way. Not that this is surprising ― this laziness is of a piece with the government’s approach to Senate reform, for instance, which similarly combined a lack of intellectual foundations (explicit ones at any rate) with an unwillingness to take the time to achieve the desired changes in the proper way, relying on shortcuts of dubious legality instead, only to be stopped by the Supreme Court. This government is sometimes described as a revolutionary one; it certainly shares the lack of respect for established institutions typical of revolutionaries of all ideological stripes. But if the Tories are revolutionaries, they are strangely and remarkably lazy ones.