Scrutiny v. Secrecy, Part II

During the furor over the nomination of John Roberts to the Supreme Court of the United States, I noted here that the perception elsewhere (in that case, Australia) is that, with all the warts and blemishes, the public vetting of our judicial appointees may be preferable to the secrecy that accompanies the judicial appointments in other former English colonies.

As the dust of the Alito nomination brouhaha begins to settle, it is worthy of note that our neighbor to the north is also in the process of filling vacancies on its highest court and as Professor Allan Hutchinson of Toronto's Osgood Hall Law School at York University observes here:

[T]he difference in approach to these judicial appointments is quite striking. The American system begins with an absolute executive recommendation which is only constrained by political considerations. But it ends, occasionally and famously, in a public rejection of that proposed candidate after a very public debate and vote by elected representatives. It may not be a pretty or edifying sight, but it at least possesses a certain transparency and openness.

The Canadian process is much more low-key, bureaucratic and impersonal. The Prime Minister still has the final say, but, under the newly-reformed process, he or she has a limited list of candidates to choose from as a result of parliamentary and broader consultations. However, once a decision has been made, there is no opportunity for the public quizzing or rejection of the selected judge. It is a done deal with the empty and belated gesture of the Minister of Justice vicariously facing questions about the new judge. Yet the appearance of democratic input in the Canadian process is belied by the reality of the closed-doors decision-making which actually shapes the process and ultimately controls it. It is thought that the dignity of the appointment and general judicial process is too seriously jeopardized by a more open process; judges and the legal system generally must be protected from a more robust and public scrutiny which the American appointees and courts must undergo.

Professor Hutchinson also opines that "As recent decisions on health care demonstrate, it is no longer credible or acceptable to pretend that adjudication is or can be about making formal and impersonal decisions in accordance with existing rules, especially in constitutional matters. Judging is about social values." Sadly, Professor Hutchinson's view of the Canadian approach to judging, seems to be corroborated by his nation's Chief Justice as noted here.

While I find much to disagree with in Professor Hutchinson's piece, his conclusion that "More, not less information about our rulers is the best route to an improved democratic polity" is spot on.

He ends by observing "Better the devil you know than the one you don'’t. In this, at least, the United States has the democratic better of us."

Talk about being damned with with faint praise!