Judges should be appointed with as little political meddling as possible to protect against abuse of power, former prime minister Brian Mulroney told the Quebec bar association in a speech Saturday night. It wasn’t the first time Mulroney has positioned himself as defender of an independent judiciary—many will remember the knockout blow he delivered to John Turner over Liberal patronage appointments in the 1984 election debate: “You had an option, sir.” But Mulroney’s most recent speech left some legal scholars scratching their heads. “He was as partisan and politicized as any of them,” says University of Toronto law professor Jacob Ziegel.
Indeed, in a new study, University of Guelph political scientist Troy Riddell looked at 723 judicial appointments made from 1988—when, in an effort to curb patronage, Mulroney established committees to vet judicial appointments—to 2003. He found that 30 per cent of judges appointed during that time had made donations to the party that gave them the nod. That figure was relatively constant under both Mulroney and Liberal PM Jean Chrétien, elected in 1993, Riddell says. The study is to be published in the University of Toronto Law Journal in 2008.
Ziegel and University of Toronto political scientist Peter Russell uncovered much the same picture in a co-authored 1991 study that found that, of 228 judicial appointments made during Mulroney’s first term, 108 had a known association with the governing party, either personal or political. “Our argument was, this is not getting the best available lawyers for the bench,” Russell says.
When it comes to the Supreme Court, Mulroney appointed several “good lawyers who became good judges,” says University of Ottawa law professor Edward Ratushny, noting that a judge’s political associations don’t necessarily mean his or her appointment is undeserved. Mulroney did make some excellent judicial appointments, Ziegel agrees. As for the role of patronage, “It’s been true since the earliest days of Confederation—nothing basically has changed,” he says. M
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