Ideology, partisanship, and judicial appointments under Doug Ford

Last week the Toronto Star reported that Ontario Premier Doug Ford had appointed two former staffers from his office to the body responsible for appointing provincial judges, the Judicial Appointments Advisory Committee (JAAC). I’m quoted in the story calling the appointments “blatant patronage”, although I also noted that Ford’s is hardly the first government to allow partisan considerations to influence appointments to such committees, including those relating to judicial appointments.

When asked about the story, Doug Ford responded with this: “We got elected to get like-minded people in appointments and by the rules, you can’t have lawyers, picking judges, so you have to have citizens. I’m not going to appoint some NDP or some Liberal. I’ve made it very clear where I stand with judges. [Judges], they’re letting criminals out. … So every single appointment I can to find tough judges, tough JPs to keep guys in jail … I’m going to do it. So that’s part of democracy. You voted a party in and I’d say that no matter what party’s in. If the feds want to appoint Liberals up in the federal government, that’s up to them. I’m putting like-minded people that believe in what we believe in, keeping the bad guys in jail and I’m proud of the job that they’re doing. I’m gonna continue doing it.”

The first, more minor, thing to note is that Ford slightly misrepresents the composition of the JAAC. It does have lawyers on it. By statute, there are two judges on the committee as well as an appointee of the Ontario Judicial Council and three other members of the legal community. The remaining seven members of the JAAC are lay persons formally appointed by the Attorney General. This structure does (and rightly, I think) give the government a degree of political control over the committee, with a majority of lay people recommending names for appointment.

What’s concerning with Ford’s comment here is his simplistic and frankly dangerous reduction of relevant factors for appointment to explicit partisanship and the single issue of ‘tough on crime’ (or what some academics refer to as ‘penal populism’). As a matter of policy, most evidence suggests this simplistic tough on crime approach is ineffective, extremely costly, and disproportionately impacts historically oppressed groups like Indigenous and Black people.

But dumb policy aside, my concern is primarily with Ford’s explicit framing of judicial appointments as a partisan matter. We have mostly managed to avoid going down the dangerous road in Canada of turning judicial appointments into a partisan battle for control over courts and judicial outcomes. One only needs to look at the joke that is the Supreme Court of the United States - an institution now at record lows in terms of public trust. The Canadian Civil Liberties Association has already expressed its own concerns with Ford’s comments.

It is important to acknowledge that politics is actually relevant for judicial appointments. First, courts are political institutions. That’s not to say they’re like elected institutions, and they certainly aren’t partisan ones, but interpreting, applying, and making law are political acts. And appellate courts, and especially the Supreme Court, establish new rules and standards in ‘hard cases’ that have profound effects on public policy. Constitutional decisions especially are political in nature, and judicial rulings in areas like the Charter of Rights are expressly laden in issues of moral concern or of a philosophical, rather than completely legal, nature. Questions of rights in these hard cases don’t necessarily lend themselves to ‘correct answers’ from the technical application of ‘the law’; instead, they are often determined by what a majority of the nine justices on the Supreme Court determine would be the most just outcome.

Second, judicial appointments are necessarily political because it is necessary for someone to be accountable for the appointments themselves. Judges are not subject to direct political accountability in order to try to shield them majoritarian impulses and public opinion. But governments should be accountable for ensuring quality appointments, and democratic accountability of this nature should be viewed as an important norm.

Within this context, it is natural to expect that “judicial philosophies” might be relevant considerations, particularly at the federal level, where appointment of judges to provincial superior and appellate courts, the Federal Courts, and the Supreme Court of Canada has enormous implications for public policy and the law. (Which adds another point: perhaps what makes Ford’s comments even worse is his lack of understanding of how the law works. The courts appointed at the provincial level and that deal with issues of crime don’t have anywhere near the degree of discretion as Ford seems to think; those judges are bound by precedents established at the appellate level. I don’t want to say there is no discretion at play, but even if Ford were able to “stack the courts” the impact on the outcomes he professes to be concerned about would be marginal at best).

In short, it should surprise no one that Stephen Harper avoided appointing “progressive” judges like Louise Arbour or Rosalie Abella, while Justin Trudeau has tended to avoid appointing “conservative” judges like William McIntyre or Charles Gonthier. (Although Harper appointed Karakatsanis, who votes often enough on the ‘liberal’ side of the Court, and Trudeau appointed Rowe, who some describe as a ‘conservative’ - proof perhaps that perceived ideology is either unpredictable or simply not always a major factor in selection).

Even while ideology may be a constraining variable in appointments, in the contemporary period partisan contestation has been avoided (which isn’t to say partisan patronage has been eradicated - recall the appointment of former Harper cabinet minister Vic Toews to the bench). We don’t have parliamentary confirmation votes on judicial appointments. You don’t tend to see the opposition parties openly opposing appointments on political or partisan grounds. And evidence that the power of appointment has benefitted governments because they’ve managed to appoint political allies to the bench is non-existent in Canada. For example, at the point when Harper had appointed eight Supreme Court justices he was still constantly losing before them on all manner of constitutional issues.

There is, therefore, a vital distinction to be made between political or ideological factors in judicial appointments versus partisanship. Doug Ford’s rhetoric is dangerous precisely because it crosses that line. It threatens to erode what has been a generally positive political culture surrounding judicial appointments (even if there is still too much evidence of patronage). It also comes at a time when the rise of right-wing populism generally is assaulting confidence in our institutions and democracy itself.

I’m a constant critic of judicial decision-making in this country. Judicial reasoning can sometimes be inconsistent, flawed, and it can even sometimes produce bad outcomes. But there is a difference between criticizing the content of judicial decisions and actively denigrating courts or casting them as political enemies of either the government or the people. Ford’s lazy comments about “letting criminals back on the streets” and his conflation of some judges as “Liberal or NDP” is dangerous for this reason. It denigrates the judiciary in a way that has the potential to lead to the type of political polarization over courts and judicial appointments that we see in the United States. If we allow politicians to go down that path our courts will could very well cease to be courts and will instead begin to look and act like nakedly partisan, unprincipled (and even corrupt) institutions like the US Court.