National Affairs
System neither impartial nor non-partisan
Claire Hoy
The late great American entertainer Will Rogers, a man who was famous for his homespun humor, once quipped that: "We always want the best man to win an election. Unfortunately, he never runs."

Which brings us - sort of - to a recently published poll conducted by the Strategic Counsel (on behalf of CTV and the Globe and Mail) which found that 63 percent of 1,000 respondents think it would be a good idea to elect our judges. Just 30 percent disagreed. Had I been asked, that's the camp I would have been in, but not for the reasons cited in the story by Ontario Chief Justice Roy Mc- Murtry, a former provincial Tory cabinet minister, who said that "impartiality" could not be maintained in a system of elected judges.

"The potential for abuse is horrific," said Mc- Murtry. "Money would inevitably become a factor. I can foresee terrible abuses," including the notion that judges may fell compelled to impose popular verdicts and sentences to ensure their re-election.

"It could really destroy the very best traditions of an independent judiciary," he said. "I think it would be a tragic initiative for the administration of justice."

For starters, there is no chance at all that this is going to happen in our lifetimes. In the U.S., many lower court judges and other court officials, such as district attorneys, are elected and there are many examples of decisions being made based on electoral chances rather than the facts of the case.

Take, for example, the dreadful behavior of district attorney Mike Nifong in the celebrate Duke University case, where a black woman accused several white university lacrosse players of raping her. As the case unfolded it became more and more obvious that there wasn't a case, but Nifong, who was facing a tough reelection fight at the time of the accusations, proceeded regardless of the evidence against the accuser and he now faces serious consequences himself.

So McMurtry is quite right that subjecting judges to elections would lead to decisions based on their prospects of re-election.

Where McMurtry is all wet, however, is in his defense of the absurd notion that our current system of judicial appointments is impartial and non-partisan. It is neither.

When Prime Minister Stephen Harper recently made some modest changes is our secretive - and partisan - system of appointing judges by simply including some more voices in the process, including police, judges from the Supreme Court on down were outraged and screamed that the Tories were trying to "politicize" the court.

Never mind that the court is already "politicized," given the overwhelming number of active Liberals - both small and big "L" varieties - appointed over the years by Liberal governments.

It's odd, don't you think, that the legal establishment - and their many cheerleaders in the media - scream "politics" only when Tories attempt to make the system better, but are perfectly content to accept their partisan rewards when the Liberals dole them out?

One has only to look at the vast majority of judicial appointments in this country to find that the bulk of those occupying the various benches are - or were before their appointment - partial to both Liberals and liberals.

That having been said, however, it's still a bad idea to pick our judges the same way we chose our politicians.

So what's the answer? Well, the Americans - and many other democratic countries - have it right at the senior level, i.e. their Supreme Court judges, by forcing appointees to appear in front of a Senate judicial committee and openly respond to questions from the elected representatives of the people.

Most of the time, since U.S. presidents are aware that they must get their picks past the committee, the appointees are approved. Sometimes they're not.

But, unlike our system, where despite some minor efforts to tinker with it, we only find out who holds arguably the most powerful positions in the country - with the possible exception of the prime minister - when the government issues a press release.

Given the power of these judges, their length of term, and their penchant for rewriting legislation to suit their own bias, surely the least Canadians can expect is to have some notion of a)-who these people are and b)-what their belief system is, before they get the job and it's too late to stop them from running amok.

So let's just forget about the election stuff, and make the appointments transparent.

For one thing, it's a lot cheaper than an election. For another, it might bring a bit of balance to our left-leaning courts.