Bastarache Commission Expert Studies on Judicial Nominations

As most people interested in Canadian legal news probably know, the Honourable Michel Bastarache, former justice of the Supreme Court of Canada, is leading a provincial commission of inquiry into allegations of political interference in judicial nominations in Quebec.

The website of the Commission has posted a number of expert studies on how judges are selected in a number of jurisdictions, including:

• Parametres of Politics in Judicial Appointments, by Roderick A. Macdonald F.R. Scott Professor of Constitutional and Public Law Faculty of Law, McGill University: "The concept of judicial independence is usually held to embrace four elements: neutral appointment, security of tenure, financial independence, and administrative autonomy (...) This paper assumes that judges will, at the end of the day, be selected through an appointments rather than an electoral process ... The specific issue to be discussed is whether an executive appointments process is compatible with the principle of neutral appointment. The paper begins by identifying what the principle of 'neutral appointment' means. This involves exploring whether human decision-making – whether by judges themselves, by any type of judicial selection (or vetting) committee or by the executive – can be purged of subjectivity. It argues for the impossibility of 'objective' cipher-like human decision-making, be this by judges or selection committees. The paper then explores the types of criteria that have been advanced as necessary for identifying who is qualified to be named a judge. It illustrates that these are often incommensurable, and even when agreed upon, they are ranked differently by different people, and differentially applied to potential candidates for judicial office. It follows that there is rarely, if ever, an objectively 'best candidate' for appointment. The last sections of the paper attempt to illustrate the difference between an appointments process that expressly acknowledges the influence of subjective considerations in decision-making, and seeks to make these transparent, and a process that hides this subjectivity from public scrutiny. In so doing, a distinction is drawn between 'political considerations' of the type that may legitimately enter into the appointments calculus, and 'Political considerations' that must be extirpated from the appointments process. The paper concludes with a series of recommendations relating to the manner in which the final steps in the judicial selection process in Quebec – appointment by the executive branch of government – may be designed so as to achieve as neutral an appointments process as possible and a concomitant enhanced public confidence in the independence of the judiciary. "
  
• Selecting Trial Court Judges: A Comparison of Contemporary Practices, by Peter McCormick, professor, Department of Political Science, University of Lethbridge: "This comparative report presents the systems for appointing judges in the Canadian provinces and in selected comparator jurisdictions, seeking to identify the implicit purposes of recent reforms and to set out the issues and choices that are involved. It advances a conceptual framework for analyzing the choices to be made in this area, and concludes with a set of recommendations as to the optimal method of selecting judges today (...) Recent decades have seen a considerable evolution in many comparable jurisdictions of the methods of judicial selection, although it is important to remember that in different countries the judicial selection process is designed to deal with specific problems and specific priorities, and this is relevant to how much we can learn from them and which parts of their process we can draw on. The specific systems that are examined, and the idea it is suggested we can draw from each, are:
  
  • Canadian federal judicial selection committees: designed from minimal constraints on executive choice, and demonstrating a vulnerability to partisan manipulation of the structures
    
  • U.S. state merit nomination committees: an emphasis more on bipartisanship than on non‐partisanship and recurring concerns about the extent of useful lay participation
  • South African judicial selection committees: a central focus on "transformation" from the apartheid past to a multi‐cultural and black dominated society, involving extensive use ofelected political representations in the committees
    
  • United Kingdom judicial appointment committees: committees that select rather than screen or nominate, with an unusual attention to independent selection processes for a strong lay membership
    
  • civilian systems of Europe: merit screening through a formal examination process as a way of selecting judges without executive discretion"