Nothing gets Canadians into a self-righteous frenzy more than when they compare themselves to the United States.To justify this attitude Canadians are attuned to American news to find things to mock the Americans about. Many have been focused on news involving the U.S. Supreme Court. Critics point to scandals engulfing certain justices — most notably Samuel Alito — who was criticized for an incident involving an upside-down American flag outside his home after Jan 6th.Critics called on Alito to recuse himself from future cases involving the Jan 6th riot outside the Capitol, despite lacking any evidence Alito showed bias.Critics of judicial bias seem to only care about perceived right-leaning judicial bias. They ignore that there exists a firm bloc of liberal justices on the Supreme Court whose opinion is just as predictable as their right-leaning counterparts.Yes, the U.S. Supreme Court ruling on executive immunity went solidly along ideological lines. But, critics uttered not a peep over notable judges like Ruth Bader Ginsburg being lifelong abortion rights advocates. For them, bias is only bad when it is for the other side.Canadians look at American judicial issues and smugly conclude they have it so much better.But do we? We point to acrimonious Senate confirmation hearings over judicial candidates in the United States as evidence of our superiority. However, what is our great alternative? Well, it is not very public. Our appointments process is quite opaque and is dominated by politicians and so-called legal experts.Is that any better? We have a process done largely away from the public eye, subject to just as much politicization as a public one and dominated by legal experts who pretend they are angels with no personal political preferences. What could possibly go wrong?One needs to understand judicial politicization is much more subtle. We need to see that politicization is not about the PMO or senior politicians picking certain people who will vote with their party when a case comes before them. Judges are independent.Canadian constitutional scholar Rainer Knopf identified two types of politicization in judicial appointments. The first is run-of-the-mill patronage where judges are appointed because they are friends of politicians.His second type — which is more insidious — are the odeologues. Judges are human beings with ideological leanings and judicial philosophies. Politicians involved in decisions over appointments can read about judges or study their rulings. They can pick favourites.Even so-called non-partisan independent bodies selecting judges are not impervious to ideological politicization. Back in 2019, Prime Minister Trudeau made headlines when it was discovered he nixed the choice of a Manitoba judge to the highest court over the advice of former Justice Minister Judy Wilson Raybould.The PM was worried the judge was too much of a Charter critic and did not share his enthusiasm for Liberal judicial activism. Observers speculated Trudeau was scared the judge opposed judicial extension into areas such as same sex marriage and the legalization of medical assistance in dying.How many Canadians are aware of our Trudeau’s ideological smackdown against this judge? How many other smackdowns are we missing because our media does not cover this issue? We are likely missing many incidents because the process is secret.When a prime minister sets their preferred appointees onto our highest courts, they introduce ideological preferences. PM Stephen Harper appointed temperamentally conservative judges who are skeptical of judicial activism to the benches, just as Trudeau appointed ‘progressive’ judicial activists. Again, the bias goes both ways.Our courts are plenty ideological; we just don’t see it and therefore we think it is a non-issue here. Now, returning to the American appointments process. Their system is much more public, and it invites political grandstanding. But are those things necessarily bad? In a public process, we hear every single detail about the views and philosophies of candidates. We also sadly hear everything about their personal life. Candidates who are ideological outliers get exposed. In Canada, those candidates face scrutiny behind closed doors.We don’t need to duplicate the American system, but we can bring a heck of a lot more transparency to the process and allow more scrutiny about ideological biases. Canadians love their experts, so we can ensure they are included.Prime Minister Harper tried to bring more transparency and parliamentary accountability to the appointments process but faced pressure to water down reforms.Canadians need to consider their judiciary. Appointed judges are not above reproach.Many Canadians are convinced our courts should force our governments to face a reckoning over policies imposed during the pandemic. Many believe any sense of policy proportionality was thrown out the window. Governments did not ensure that the good of policies outweighed the bad or their unintended consequences. Judges have been helping them get away with this by declining to hear so many cases. Let’s open our system and drop the smugness. Our first step is acknowledging there is a problem.Joseph Quesnel is a policy commentator based in Nova Scotia.
