Document Type

Working Paper

Publication Date

2011

Keywords

ideology of appointed judges, judicial appointment, Supreme Court of Canada judicial appointments, what makes a good judge

Abstract

The ambition to appoint judges who are truly meritorious is unquestionable. Nobody would want to have judges on such an important tribunal who did not possess all the technical and professional attributes of a truly competent judge. This much is undeniable. The problems arise when people assume that this can be achieved with indifference to the ideological leanings of any particular candidate. It would be folly to select an out-and-out ideologue, especially if they otherwise lacked (or even had) all the qualities of meritorious judges. Karl Marx and Friedrich Hayek would make for less than ideal judges. However, the assumption that merit and ideology are unrelated notions and that is possible to attend to matters of merit without taking into account ideology is mistaken. No matter how much people may wish that it were so, it simply is not. Merit and ideology walk down much the same street. Any denial to the contrary flaunts both history and analysis. Moreover, how the relation between merit and ideology is understood has profound implications for the whole process of not only appointing judges, but also evaluating their judicial performance. In this short essay, I will demonstrate that, while merit and ideology do not collapse into each other, it is simply not possible to talk of one without the other. Good judges recognise that the resort to values (and contested ones at that) is an integral and inevitable part of the judicial task. In the first part, I explore what might be involved in being a ‘good judge’. I then proceed to examine how Canadian jurists have sought to explain the resort to values in.the adjudicative process. In the third part, I respond to the claim that ‘activism’ is something that judges can and should avoid. Finally, I look at the institutional implication for the judicial selection process of understanding the judicial function as a mix of merit and ideology. Throughout the essay, I will insist that any reasonable appreciation of the judicial function must accept that the sin is not accepting the ideological dimension of adjudication, but trying to hide it.

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