Paul Martin says he wants to make Canadian polities more democratic. He is on record that more involvement by ordinary members of Parliament in the important decisions of government is part of the legacy he wants to leave.
Quite by chance, Martin has been given an early opportunity to show just how committed a democrat he really is.
With Monday's announcement that Justice Frank Iacobucci is retiring, and early news of the appointment of Louise Arbour as the UN. High Commissioner for Human Rights, Martin must decide how he will fill both vacancies their departures leave on the Supreme Court. He says his intention is to bring MPs from all parties into the process. The critical question is how.
He could follow the American model of selecting Arbour's replacement himself, and then asking a parliamentary committee for its approval.
Alternatively, he could reverse the process and ask a committee of the House of Commons to compile. a list of nominees from whom he would pick the one he thought was most suitable for the job. This is the model the South Africans chose to fill positions on their highest court.
If he is a really committed democrat, he will be attracted by the German system in which the selection judges to their highest' court is given over entirely to a legislative committee made up of its most distinguished members and best legal minds.
Arguments can be made in favour of all these (and other) options. For a democrat, any of them would be a big improvement on the current regime.
. Each of them would give a voice to a much broader cross-section of Canadians in picking the people whose job is to stake out the constitutional boundaries which limit the kinds of laws governments are allowed to pass. In addition, if the process is open to the public, they also provide a window through which Canadians can learn firsthand how judges on our highest court actually do their job.
Some members of the legal establishment will caution Martin against opening up the process too much. Too much democracy, they warn, risks politicizing the court.
Martin should not take such scepticism seriously. Allowing Canadians to have a meaningful say in picking their judges need not undermine the integrity nor independence of the court. Greater participation by the public, and more transparency in the appointment process, is actually a way of making sure judges base their decisions on what the Constitution requires and not on what they think is politically correct.
Before a parliamentary committee, candidates can be asked for their views on the Constitution and what they think the job entails. The best way to get a fix on what kind of a Supreme Court justice candidates will be is to ask them to comment on some of the really big decisions the court has made in the past. Arbour's successor, for example, could be asked what he thinks about the court's major rulings on abortion, the rights of gays and lesbians and public finding of private religious schools, before being appointed to the court.
Mu.ch could be learned from such a conversation. In all of these cases, the judges were really badly split. As in so many of the court's most.important decisions, three and sometimes four separate opinions were written.
In these and other cases, some judges (including Arbour) consistently favoured a liberal approach. Others embraced a more cautious and conservative understanding of the law.
Through parliamentary hearings, we could find out what those who aspire to fill Iacobucci's and Arbour's seats on the court think of the different judgments that were written in these cases: Which approach would they have

A DEMOCRATIC SAY
IN PICKING JUDGES
NEED NOT UNDERMINE
THE INTEGRITY
NOR INDEPENDENCE
OF THE COURT

favoured? Whose opinion would they have signed if they had been on court when these cases were heard?
The response to these, and similar questions, will tell the committee (and all Canadians) very quickly how candidates will interpret the Constitution, what principles they think it contains and, ultimately, whether they are the kind of judge Canadians want on the court. .
Including parliamentary hearings in the process by which judges are appointed to the Supreme Court would be good for democracy and good for the law. It would inject a measure of accountability over the third branch of government that the current process lacks.
Orily the political establishment and legal elites have something to lose. Whether he remains true to his principles, or takes their advice, will tell us whether Paul Martin really wants Canadians to have more say in how their government works or whether, like the old gang, he's just in it for the ride.
National Post
David M. Beatty teaches in the
Faculty of Law, at the University
of Toronto and is the author of
The Ultimate Rule of Law,
Oxford University Press, 2004.

National Post, Tuesday March 23rd 2004.