This paper analyzes the Supreme Court appointment process over the 10-year period from 2004 through the end of 2013. The paper conducts a democratic audit of the Supreme Court appointment process, not an evaluation of the judges appointed through this process. The paper first presents a short history of the Supreme Court appointments process between 2004 and 2013. It sets out the mechanisms under which each of the eight judicial appointments was made during this period. Next, it introduces the concept of a democratic audit and identifies the drivers of change to the appointments process. It argues that prior to 1992 proposed reforms to the Supreme Court amendment process were motivated by concerns about federalism: incorporating a role for the provinces in the appointment process. However, after the failure of the Charlottetown Accord (1992), the motivation changed and reform of the Supreme Court appointment process became part of a democratic reform agenda proposed first by the opposition Reform Party, the n by Liberal leader Paul Martin, both in his leadership campaign and during his tenure as Prime Minister, and finally by the Conservative Party led by Prime Minister Stephen Harper. This part of the paper also addresses an issue that did not factor into the reforms — any perceived deficiency in the quality of past appointments or concerns about the legitimacy of the Supreme Court itself. Since 1992, the key factors articulated as the basis for changing the appointment process have been (1) transparency; (2) accountability; and (3) public knowledge about the Supreme Court and its judges. These are the factors used for evaluation through this democratic audit. The next part of the paper conducts the democratic audit and finds that the reforms have largely failed to deliver the promised transparency and accountability. Conversely, the reforms have been very successful in serving a public education function about the Supreme Court and its work. The paper the n offers recommendations for “reforming the reforms” in order to achieve the goals of transparency and accountability in the appointment process, arguing that the government should publish a detailed protocol which would set out the qualifications, consultation to be followed, procedure for evaluation, etc. The paper also proposes a revamped advisory committee which would operate in a more open and transparent fashion and produce a report on its work. The public hearings of nominees should continue, but only if the Minister of Justice also appears to answer questions about the process and about why the nominee was selected.
Dodek, Adam M..
"Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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