Moin A. Yahya: Harper’s Judges under attack

The timing couldn’t have been more perfect: The Globe & Mail published an article decrying how Stephen Harper had been remaking the judiciary over the past many years, and then yesterday the Prime Minister announced the elevation of Justice Russ Brown of the Alberta Court of Appeal to the Supreme Court of Canada. (I should disclose that Justice Brown is a good friend of mine and a former colleague at the University of Alberta’s Faculty of Law.)

Over the next few days and then over the many coming years, undoubtedly Justice Brown will come under academic and journalistic scrutiny to see if his appointment fits a narrative that many on the left of academia and journalism like to paint.

The Globe article suggests a vast right-wing conspiracy whereby conservative operatives are spread all over the country hunting for the great judicial-conservative hope. Indeed, another article two days later was full of interviews with critics who wanted to change the judicial appointment system so that the (Conservative) government would have less discretion in the appointment of judges.

Of course, as long as the Liberal government, and for that matter the Mulroney PC government before that, were appointing left-wing liberals, these critics praised the amazing meritorious appointments that were being made to our nation’s courts.  But once the nature of appointments started to become more conservative, all of a sudden the appointments were characterized as ideological and conspiratorial.

Even assuming that the federal Conservatives have been trawling the bottoms of the ideological oceans looking for the most conservative judicial candidate they could find, the question remains: Why hasn’t it made a difference in our legal culture? After all, seven of the nine Supreme Court justices have been appointed by this government, and yet much of this government’s contentious legislation has been struck down...