The Liberal government is deciding how to fill the current vacancy on the Supreme Court of Canada. It is long overdue that the selection process be reconstructed to embody the values of contemporary Canadian constitutional democracy. What does a sound modern selection process look like, and why?
Supreme Court judges are central players in Canadian democratic governance. When they "interpret" our Charter of Rights, the judges create the social world we live in. Their work has as much impact as MPs passing legislation. But judges are unelected – albeit for good reasons. So if we are to respect democratic values when selecting judges who so profoundly shape our community, the selection process must involve the people.
Canadians must know the candidates applying for, or being considered for the top court, and by what measures their applications succeed or fail. Public membership on, and input to, any selection committee is essential. Public hearings are equally important, so that those not participating can observe the selection process as it unfolds.
Mud slinging that too-often accompanies the confirmation hearings in the U.S. Senate for that country's top-court nominees is no reason to shy away from public hearings in Canada. Instead, our public hearings should explore candidates' qualifications based on job requirements outlined in advance, not unlike the hiring process in other sectors. Why treat Supreme Court aspirants any differently? The importance of the position makes applying established criteria essential. Limiting questions in public hearings to the established selection criteria, and expanding participation beyond politicians would minimize U.S.-style political grandstanding. Any potential Supreme Court judge with skin too thin for such a responsible winnowing process is not suitable for such high public office.
So which job criteria should guide this public selection process? Legal acumen must be first and foremost. When faced with the toughest legal questions, we crave and deserve Olympian wisdom to provide the best possible answers. So in selecting Supreme Court judges we must be much more focused on substantive legal acumen than any other attribute that may resonate as popularity. Such a resolutely merit-based approach may conflict occasionally with democratic ideals of maximizing inclusivity, but would do so for good reason.
Supreme Court judgments have a shelf life measured in decades. So legal acumen should be largely defined by who can take the wisest long view. Sorting out who has such forward-looking intuition is difficult. Those outside any profession are typically blind to the fine distinctions in ability seen by those inside the profession. So comprehensive input from fellow professionals, not just the public at large, or politicians, will be essential to selecting the best of the best. But this input too, must be public, to avoid the perception of anointment by a cloistered, elitist lawyers' clique.
Supreme Court judges must be talented writers. They are, after all, secular monks, secluded in an imposing building in Ottawa where, apart from bland speeches at graduations, they are heard from solely through the written decisions they release. We are all bound by the law stated in the court's decisions; we cannot be bound to standards we cannot follow because we cannot decipher. American writer Charles Bukowski said a person who makes simple ideas complicated is an intellectual; a person who makes complicated ideas simple is an artist. The legal profession is riddled with intellectuals. Supreme Court judges must be artists.
After legal acumen, talent as a writer, and the established convention of regional balance comes everything else. Diversity and functional bilingualism are important, but should arise after the high bar set by legal acumen and writerly artistry is cleared. And functional bilingualism in particular should not become a glass ceiling for exceptionally talented legal minds who distinguish themselves in largely unilingual communities.
The Supreme Court pursues social cohesion by settling some of the toughest, most controversial questions we collectively face. By selecting judges in a thoroughly public and inclusive process that applies the above criteria, we will create a cCourt that is more ours than ever before, and whose answers to our tough questions will best earn our considered respect while standing the test of time.