Stephen Harper has worked very hard to politicize this country's institutions. The story of how he tried to politicize the Supreme Court is beginning to emerge. Geoff Stevens writes:
I am indebted to Sean Fine, the very good justice reporter at the Globe and Mail, for pulling aside the curtain that normally shields the judicial-selection process from public scrutiny. Working with sources independent of the Supreme Court -- no leaks there! -- Fine uncovered two crucial lists.
One was the long list, prepared by the Prime Minister's Office and the Justice Department, of six potential candidates for a Supreme Court vacancy from Quebec. Early last summer, that list went to a five-member selection panel of parliamentarians -- three Conservative MPs, one New Democrat and one Liberal. The panel did its due diligence, consulting with Chief Justice Beverley McLachlin, studying judgments written by the six jurists, and traveling to Montreal to seek the advice of leaders of the Quebec bench and bar.
This time, PMO/Justice, looking for someone who could be counted on to support their anti-crime agenda, were unable to find a reliable prospect among the judges of the Quebec bench or in the ranks of the province's senior lawyers. The most impressive candidate from the Court of Appeal was Justice Marie-France Bich, a former law professor, who was valued for her strong judgments and her streak of independent thinking. But was she sufficiently conservative?
The strategists at PMO/Justice could not ignore Judge Bich. They put her on their long list, but made possible for Harper not to appoint her by loading their long list with the names of no fewer than four members of the Ottawa-based, government-friendly Federal Court of Canada. This meant that when the selection panel cut the long list of six to their short list of three, there would have to be at least one candidate from the ranks of Federal Court.
It was this list that Chief Justice Janet McLachlin warned Peter MacKay about. She did not specifically lobby against Justice Marc Nadon. It was the four justices from the federal bench that concerned her:
What MacKay should have done was to halt the process, tell the PM that their devious court-packing scheme hadn't worked, and advise him either to appoint Marie-France Bich (the only eligible name left on the short list) or start the selection over again (thereby leaving the Supreme Court short-handed for another year or so).
MacKay could have done that -- not that his boss, Stephen Harper, would have been amused at being told it was beyond his power to make the Supremes sing right.
But that's not the story Mr. Harper is telling. Should anyone be surprised?