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Ignoring identity politics, Trudeau makes a Supreme choice

The Trudeau government likes to tout the achievement of firsts, particularly of the demographic variety. It's at the heart of its electoral strategy and its brand. And from the moment last spring when Supreme Court Justice Thomas Cromwell announced his early retirement, it was clear the government was looking for a replacement who would generate a press release filled with historical firsts. The first aboriginal Supreme Court justice. Or the first visible minority on the nation's top court. Or, by adding another woman to the nine-judge body, a Supreme Court with more women than men – a first for Canada.

Instead, with the appointment of Justice Malcolm Rowe to the highest court, the only precedent set is that he is the top court's first Newfoundlander. No, this is not the ground-breaking announcement the government initially had in mind. He does not tick the appropriate boxes. There is no press release of Liberal dreams.

Some people are going to give the Prime Minister and his advisers grief for this. Instead, we suggest a round of applause.

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The Trudeau government's initial impulse was to play identity politics, and to use an appointment of tremendous power and significance for the sake of its political needs. In the end, however, they tapped someone whose sole qualifications are, well, his qualifications. He may not be much of a first, except perhaps as a first-class jurist – which is what should matter to Canadians.

Once appointed, a Supreme Court judge can sit until age 75, as one of just nine members of a law-making court from whose verdict there is no appeal. These men and women decide what the law is and what the Constitution means. The intellectual qualities and fundamental beliefs of each individual matter, immensely.

The government also deserves credit for the process that led to the selection of Judge Rowe. It appointed a body of seven outside advisers, and asked them to come up with a short list of qualified candidates. Candidates even had to fill out an application, which included questions about experience, legal accomplishments and legal philosophy. Judge Rowe's submission has been made public – a first and, we hope, a precedent.

The final stage in the process involves MPs questioning Judge Rowe. They should avoid the impulse to be deferential. In the years to come, the new Supreme Court justice will be questioning their judgment, and overturning their laws. He can put up with a day of pointed cross-examination. That would also be a first.

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