Every time an opening comes up on the Supreme Court of Canada, conservatives holler, "Something’s gotta be done about how we choose 
those judges."

They’re right about one thing:  whether the Supremes grabbed for power, or whether power was simply thrust upon them, they wield one heck of a lot of it.   The identities of those who make our highest level of legal decisions will make a fundamental difference to Canada’s future.

The current selection system pays lip service to the notion of a diversified court, juggling candidates to get just the right mix of women, francophones, westerners and so on.   This is a farce.  Variations in plumbing and geography are entirely superficial.  What really matters is ideology, and ideology cuts across all ethnic, racial, gender, linguistic and geographical lines.  You can fill the court with bodies whose physical characteristics and backgrounds are spectacularly diverse, but still find that their philosophies were stamped out with a cookie cutter. 

One of the standard recommendations conservatives make is that we should compel supreme court nominees to undergo a public grilling process similar to the confirmation hearings candidates face in the U.S.  I’ve never been able to figure out how this is supposed to help us here in Canada.

In the U.S., where the White House can be of a different political stripe from congress, the process may weed out the more dangerous ideologues from the running.  Here, however, the party that nominates judges is the same party that controls parliament.  It’s unlikely that the confirmation committee will reject any candidate put forward by the cabinet. 

Another common suggestion is that judges be elected.  This would perhaps have the advantage of laying bare for public inspection the weird and wonderful views that judicial candidates harbour.  However, it suffers from the same disadvantage inherent in all election processes: if there are more than two candidates, the odds are high that the majority of voters will end up saddled permanently with a candidate who was the first choice of only a small minority. 

The truth that conservatives hate to face is that the method of selecting supreme court judges is really a red herring.  The real crux of their problem is that the majority of the population--including most people eligible to hold judicial office and most people who would participate in the selection process--are quite content with the left-liberal status quo.  They never met a social program they didn’t like.  They believe society, not individual criminals, should be blamed for crime.  They are not conservatives, and they certainly aren’t libertarians. 

In the long run, the only thing that will change this situation is a major philosophical revolution--a reversal of the revolution that transformed 19th century classical liberalism into its antithesis, modern left-liberalism.   I don’t foresee this happening in the near future.   Conservatives themselves are so deeply imbued with statist ideology that they unwittingly keep shoring up the very mechanisms (for instance, the public school system) that perpetuate statism. 

Meanwhile, there is a measure that conservatives could advocate to achieve greater balance in the law without having to change the mindset of the entire population.  It involves bringing market-like forces into the monopoly court system.  It would permit choices to be made from the bottom up, by those who will actually be affected by the results, instead of from the top down, by those imposing a partisan political agenda. 

There’s no law of nature that says we need a standing supreme court with the same nine judges hearing every case that reaches the top of the legal chain.  Instead, we could have a panel of qualified people who would serve when selected for specific cases.  The panel could include all current and retired appellate court judges from every province, and perhaps lower court judges or senior lawyers who passed certain tests or were recommended by law associations, etc. 

When a court was needed, the panel would be canvassed to find out who would be available on those dates.   Thanks to video conferencing, location wouldn’t matter--only timing.  From among the panel members available, counsel for the litigants would then select the nine who would serve. 

They’d start by drawing up separate lists of the nine they wanted.   If an individual appeared on both lists, he’d be in.  If an individual was omitted from both lists, he’d be out.  Each side would then get to fill half of the remaining vacancies, with an odd-numbered vacancy being filled by lot. 
This way, each side would know that at least four of the nine judges hearing the case were jurists they themselves had chosen as being the most likely to give their side a fair hearing. 

I advocate a similar system for every level of judicial office.  I don’t see why anyone should be guaranteed full-time judicial employment unless the market (i.e. litigants and their lawyers) demonstrate a demand for, and ongoing satisfaction with, their services. 

For more on this, see my March, 1994 column Rent-a-Judge: Maybe They’d Try Harder.