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Conservative justice a last-minute choice

by Archives September 16, 2008

Prime Minister Stephen Harper capped off his first term in office by making a unilateral appointment to the Supreme Court, just 48 hours before dissolving parliament.
Harper’s last-minute move has sparked concerns that a Conservative win in the current election could shift the balance in the court to the right.
Harper’s appointment of Justice Thomas Cromwell last week bypassed an all-party parliamentary committee that nominates candidates for open positions on the court. Harper’s unconventional approach was contrary to the procedure he followed for his last appointment, Justice Marshall Rothstein in 2006.
“Despite fears in some quarters that Harper has some sort of hidden extremist, right-wing agenda, he has shown no evidence of such goals in two Supreme Court appointments,” said a Montreal-based senior partner, with a major national law firm, whose name has been withheld because he was not authorized to speak to the media.
“If Harper were to nominate an unqualified or extremist candidate for the high court, he would be risking public embarrassment – majority or no majority.”
While Harper may have bypassed the other parties in the selection process, his choice does have a bipartisan spirit. “Justice Cromwell was nominated to the Nova Scotia Court of Appeal by former Liberal Prime Minister Jean Chrétien,” said the senior partner.
While the Prime minister has final say in the appointment of new Supreme Court judges, his options are limited, said Eric Reiter, assistant professor of history at Concordia, a member of the Quebec Bar and a former research lawyer for the Quebec Court of Appeal.
“It is important to realize the Prime minister makes appointments of Justices from a pool who are in Federal Court or Court of Appeal in all provinces,” Reiter said. “There are a lot of judges in the pool to be selected, including Liberal appointees, so there is a balance.”
Reiter added that Harper will probably not have the chance to appoint a majority to the court.
“It is not likely many vacancies will happen in the next mandate: the Supreme Court is a fairly young court. [Justices] must retire at 75 years old.” Currently the oldest justice on the court is Morris Fish, 69.
“The Supreme Court does have tremendous force in the legal system, but it is just nine people hearing certain cases, while most of the work is done in the lower courts,” said Reiter.
Before his appointment Cromwell will still be subject to televised questioning by the parliamentary committee, a process first used in the appointment of Justice Rosthstein. No matter how the questioning goes Harper still retains the final decision on the judge’s appointment. While the process is somewhat reminiscent of the appointment process in the United States, where the Senate must confirm Supreme Court judges, Reiter said the way the process is conducted is very different.
“Compare Canada to the United States’ Supreme Court, which is heavily politicized, we haven’t seen that in Canada. Justice Rothstein’s questions from parliament were good-natured versus how vicious the American Senate can be.”

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