A "GENDER PATRONAGE" FOR JUDGES?

This article first appear in Lawyers Weekly  March 29, 1991

By Rob Martin

Nothing ever really seems to change. To be sure, we are constantly pre­sented with the illusion of change,

especially in an economy based on consumption. But it is mostly illusion, appearance. The substance of things tends to remain the same. Take judicial appointments. The Canadian way has been to use patronage as the

main-not the only, but the main-basis for appointing people to the Bench. Loyal service to the party in power has been the most important qualification for a judgeship. The tradition of patronage appointments is a long, if not particularly honourable, one. It predates Confederation.The Canadian Bar Association, to take but one example, has been criti­cizing patronage since 1916. In 1985 it even produced a report about the whole business.

The report observed:

There has been a long history of patronage appointments by both major parties in Canada. Although there have been some commendable exceptions, the practice of appointing the party faithful to the Bench has been all too common.

From time to time various political leaders have denounced patronage and promised to put the bad old days behind us. Success has been limited. Pierre Trudeau first gained national prominence in 1966 as Minister of Justice in the government of Lester Pearson. He announced his determi­nation to end patronage and make judicial appointments on merit. The determination didn't last long. Trudeau resigned as prime minister in 1984. His departure was accompanied by an orgy of patronage appointments which was shocking, even by Canadian standards. A small horde of Cabinet ministers, terrified at the prospect of their party's impending electoral debacle, went to their reward on the Bench.

Brian Mulroney promised to do better. He didn't. A 1989 study of judicial appointees during Mulroney's first four years in office concluded that 48 percent were known supporters of the Progressive Conservative party. An ostensibly new system for making federal judicial appointments was instituted in 1988. But its newness is more ap­parent than real. The final authority over appointments remains in political hands.

Well, what's the problem with patronage appointments? Obviously, not all are, or have been, bad. Long service to a political party should not disqualify someone from holding judicial office. But should it be the most important consideration? The real problem lies in the failure of patronage appointments to address, or even raise, the question of an individual's fitness to be a judge. Politics, not merit, determines the decision.

The problem is compounded because we don't really know what we are looking for in judges. We have never, probably because we are inured to patronage appointments, determined what qualities make people fit to be judges and how we might go about assessing those qualities. But if we regard judging as important, we should concede that patronage is not the ideal basis for electing judges. Merit, however we eventually decide to define it, should take precedence over politics. All of which brings me to the new Ontario government's approach to appointing judges. Once again, we have the illusion of change. The reality is business as usual. Upon taking office as attorney-general, Howard Hamp­ton announced his determination to have more women judges in Ontario. He went to the point of saying he was prepared to look outside the prov­ince if enough women who were members of the Ontario Bar could not be found. These statements were followed up with letters to many women lawyers inviting them to apply for judgeships. And Hampton has been true, more or less, to his word. At my count he has made 18 judicial ap­pointments since taking office. Eleven of these have been women.

So what's my problem? I'm certainly not opposed to women judges. And I'm definitely not worried about lowering the quality of the Provin­cial Court Bench in Ontario--a virtually impossible task, I would think. And I'm even prepared to accept some of Hampton's appointees may turn out to be competent judges. No, the point is that Hampton is continuing the dismal Canadian tradition of politics over merit. The announced basis for his appointments is the gender of the people chosen, not their ability or qualifications. I don't believe it's much of a step forward to replace party loyalty with gender as the basis for choosing judges. Gender is as much a political consideration as is party loyalty. Neither relates directly to an individual's fitness to be a judge.

In our federal and provincial public services we go through an elabo­rate ritual of assessing people's ability and qualifications before they can be appointed. Might we not devote the same care to picking judges?