Mark Carney must flatly reject Danielle Smith's latest round of anti-constitutional posturing

Danielle Smith has threatened to withhold provincial funding for new judicial appointments unless the province gets more of a say in selecting judges. It is an attack on the separation of powers, on judicial independence, on access to the justice system, and on the constitutional structures animating the administration of justice in this country.

This new assault on the constitution comes on the heels of an unprecedented situation in which the chief justices of three Alberta courts issued a powerful statement defending the separation of powers and judicial independence after Smith suggested she wanted the power to ‘direct’ judges.

There has been an increasing tendency of right-wing populist attacks on the judiciary from sitting politicians recently, and Smith is at the forefront.

The courts are not above criticism. Judges can get it wrong. And they are not immune from politics. Under the division of powers, and especially under the Charter of Rights and Freedoms, courts are presented with questions to which the law doesn’t always provide a clear answer, embedded as they are with profound social, moral, and philosophical concerns.

Yet that judging can be political, and court rulings have political implications, does not mean judging is just the same as partisan politics. Indeed, the judicial role is a distinct one, following a distinct form of reasoning in which judges’ political inclinations are conditioned and constrained. Danielle Smith has shown no appreciation for the distinct nature of the judicial role. She believes appointments are nothing more than proxies for federal politics. It is an attitude we must fight, for otherwise we could undermine one of our main bulwarks of democracy.

We must resist the forces in Canada who want to turn judicial appointments into a polarized, partisan process. We see what that cultural attitude has wrought for the United States, where their courts now struggle with their fingers plugging the dam of a broken democracy, and where their top court has fallen to naked corruption, its six-judge majority having abandoned the rule of law entirely.

The law in Canada - already the most decentralized federation in the world - must not be subject to regionally-based, populist-infused jealousies and recriminations of a separatist-enabling ideologue like Danielle Smith. The very existence of her threat to withhold funding for judges is proof she’s not qualified to weigh in on Mark Carney’s breakfast order, let alone the federal selection process for courts in this country.