"sympathetic to this government"

Canada's worst newspaper once again evidences why it so richly deserves the sobriquet with this piece of hack journalism about recent federal appointments to the Judicial Advisory Committees.  Unfortunately, the idiocy appears to have spread, prompting not only a CP follow-up, which is screeching its way around the Toronto Star, but an oddly timorous report from Macleans.ca and even regrets from Andrew Coyne.  The smear continues for a second day with this piece, which mostly regurgitates the same misplaced insinuations and is, again, inexplicably placed on the front page (well, "inexplicable" if one assumes that news coverage is meant to be unbiased).

Once you wade through the lousy reporting, here's the bottom line: the government is using the slots reserved for partisan political appointments for... wait for it... partisan political appointments.  Sort of.  In some cases.  Kinda.  Perhaps 16 out of 33 times.

This is what passes for front-page analysis in reporting on the story:

• in the original Campbell Clark Globe story which prompted the "outrage", he unleashes this sweet bit of numerical analysis: "But instead of three members, Ottawa now picks a fourth drawn from the ranks of police officers, and has taken the vote away from the judges' representative, unless the other seven are tied. [emphasis added]".  Got that?  Only when "the other seven are tied" can the chair vote.  Muse on all the various permutations by which seven votes can be "tied".
• ignoring that little bit of snarky innumeracy, let's pay attention to a more substantive deficiency: Maclean's quotes Liberal MP Anita Neville as complaining that, by using its partisan slots for some partisan appointments, the government is "doing through the back door what he can't do through the front door".  It's a useful comment because it allows to completely dismiss Anita Neville as not having even the faintest clue about how the judicial appointments process works - and nor do some of the reporters who seem intent on "reporting" on the story.  When Neville insinuates that Harper is doing something which he "can't do throught the front door", she completely misunderstands that he can, in fact, do through the front door precisely what she is accusing him of doing.  And neither she, nor her allies in the press, are able to provide a smidgen of evidence that anything he is doing, front-door or back, is wrong or even questionable.

Here's how this works.  The Judicial Advisory Committee system consists of sixteen JACs across the country, each populated by eight members.  The eight members are chosen as follows: (1) the chair, chosen by the provincial chief justice; (2) a representative from the relevant law society; (3) a representative chosen from the office of the relevant attorney-general office; (4) a representative of the Canadian Bar Association; (5-7) non-lawyers chosen by the federal Minister of Justice; (8) a police representative chosen by the federal Minister of Justice.  Slots 5-7 are the partisan slots.  We can note that the Globe and Mail has never opted to study how many of the partisan slots were filled with partisan appointees under a Liberal government.  But let the obvious agenda "journalism" lie for now.

Each JAC reviews candidates, then gives the federal Justice Minister a "recommended/do not recommended" assessment.  Then the federal Justice Minister decides who he wants to appoint.  He can appoint a "not recommended" individual, he can appoint someone who has not even been vetted by a JAC, he could appoint his dog if he wanted to, and no one could stop him.  If you want a weak point in the system, it's the unfettered right of the minister to appoint which is the problem - not the fact that some slots on the JAC committee are being accorded to partisan appointments.  But pointing out the weakness in the system is hardly the point of this media pile-on - scoring ill-informed political points is.

Let's take another moment to examine Campbell Clark's attempt to describe the system: "[JACs] decide which lawyers are recommended to sit as judges on Canada's superior courts. The justice minister appoints people to the bench from those recommended by the committee."  Well, no, actually.  In fact, it has been a long-standing complaint even by the entrenched interests of the organized bar that a minister can appoint even someone who is rated "not recommended" by a JAC.  See, for example, Recommendation 2 in this Canadian Bar Association report, wherein the CBA recommends that it be a requirement that federal Justice Ministers given a written undertaking not to appoint to the bench anyone who received a "not recommended" rating.  The CBA report is from October 2005 - it was delivered to the Liberal government then in power; then-Minister of Justice Irwin Cotler refused to mandate that limitation on his power - he preferred to leave it up to the conscience of the individual Minister to decide whether to promise not to appoint someone given an "unable to recommend" rating.  "Strangely", this did not warrant front-page headlines across the country.

And you'll note that not only is even the torqued coverage at the Globe able to identify an unqualified appointment to the bench, they aren't even able to identify an unqualified appointment to the committee.  The most recent statement on the record about appointments can be found here, where Justice Colin McKinnon, former president of the Ontario Superior Court Judges Association, and a fierce critic of the changes made to the JAC system in the fall of 2005, "praised the Harper government for appointing nine “highly capable” judges in Ontario last month".  So when the Star shrieks that the Tories are "trying to stack the courts", we're left with out a single iota of evidence that they have either done so or are trying to do so.  This is undoubtedly a bit confusing for the Globe and Star reporters assigned to this particular beat, but filling less than half of the partisan slots on the JACs with "political partisans" doesn't actually equal political partisans being appointed to the bench.  If you want a brilliant example of the double standards at play, note that the "crime" of which most of the Conservative appointees are accused is that they are Conservative supporters.  So how does the Globe provide evidence to denounce this horrendous practice? 

James W. Cruickshank, a former member of the Ontario East/North judicial advisory committee, said he was a Liberal Party member when he was appointed, although never a party official or employee. He said he does not agree with filling the committees with partisans.

"If what's in [the] articles is correct, I'm not happy," Mr. Cruickshank said. "It's not a process that makes me proud to be a member of a former committee."

That's sweet.  He wouldn't be proud to be a member of a former committee.  Because when he was on a JAC, you see, only Liberals got to be appointed.  Which is how things are supposed to be, dammit!

Let's compare that to the actual record of the prior Liberal governments.  As cited in this report, in 2003, just over half of federal Liberal appointees had donated to the Liberal party.  In 2005, CanWest News Service found that more than 60% of judges appointed by the Liberals between 2000 and 2005 had donated to the Liberal party.

Remember the m.o.: when the Liberals actually abuse the process, it's not a problem; when Conservatives are wrongly accused of attempting to abuse the process, it's time to man the barricades.  Here's the challenge for Canada's worst newspaper: (1) identify unqualified appointees to the bench who have been appointed by this government; (2) make even a semblance of an argument as to why the political predilections of an appointee should disqualify them from appointment - an argument which does not include "because I disagree with their views".  Then, and only then, would there actually be a news story here.

Comments

[Bob & Ulli]

That's an amazing piece of in-depth analysis, Mr. Tarantino. You do not assume that your readers are stupid. Your commentary is based on solid facts, researched and communicated. You will never get a job in journalism in Canada. Good for you.

[Barcs]

Yes very well done.

I am very annoyed with the media lately. I understand that it is hard to analyze and pull evidence from a long paper into a short article.

But more and more after finding the long paper and reading it. And comparing it to the article written.

I stand there scratching my head and saying... this isn't what that says.

I wonder why blogs like this are becoming more popular and the media less so....hmmmm?

[Roy Eappen]

Great post. The mop and pail is now just a fiberal mouthpiece. I am going to try and come on Saturday. Hope to see you there.

[anonymous]

Didn't Rob Nicholson say in the House today that the appointments were made by the committee set up by the previous Liberal government??? I'm sure I heard that, and then he said, so what's their problem???

[Adam D]

great post.

[D]

It's nice to finally get the other side of the story.

[Werner Patels]

Well done. I've written about it too, and I am not too pleased with the likes of John Ibbitson and other media types.

The Liberals have been doing this for decades, but when a Conservative does it, it's "perverted" (in the words of Ibbitson).

I'm disgusted.

[Paul O]

Well done!

I was very disappointed with CTV during today's "Mike Duffy Live", where Robert Fife (CTV Ottawa Bureau Chief, if I recall correctly) suggested that it's clear the Conservatives are intent on "stacking the bench". Much later in the show, he mentioned in passing that a significant majority (if not all) of the Liberal appointments to (I believe he said) the Federal bench had donated to the Liberals.

[Mike H]

One of your best, Bob.

Just when I think I've become enured to the anti-conservative mantra so deeply entrenched in much of the Canadian media, the bastards manage to raise the bias bar a notch higher.

[Jim Whyte]

I have to take issue with one thing here, Bob -- the Minister cannot appoint his dog. Under Ss. 97-98 of the British North America Act, appointees to the higher courts have to be members of the Bar.

To date, no dog has passed the Bar examination in any Canadian province. Now, this is clearly evidence of systemic discrimination, because dogs make up approximately 6% of the Canadian population (slightly higher on Ladies Nights) while making up less than 1% of the Bar.

In order for the Bar to better represent the leg-humping community, the exam requirements -- particularly that one about the opposable thumb, which unfairly handicaps persons of fur -- should be modified, and more dogs given a second chance on the exam.

The sooner this happens, the better off we will be, as dogs will see themselves in the judiciary; dogs involved in proceedings will not be intimidated by all the people around them; and dog judges (by which I mean dog judges, not dog-judges) will become role models for other persons of fur.

[serious bit] Good post, Bob...the agenda in this reporting is unmistakable.[/serious bit]

[Kathy Shaidle]

Great Post!

[Mike H]

By the way Bob, here's an example of someone the Libs felt was "suitable" for appointment to a Judicial Advisory Committee:

From the Toronto Star archives:

"IN 1988, when Liberal Attorney-General Ian Scott asked me to serve on the first Judicial Appointments Advisory Committee, I was suspicious. Until that moment, the appointing of Ontario judges had been a behind-the- scenes boondoggle, a cozy buddy system. Every now and then, the system tapped someone magnificent on the shoulder; more often a mediocre hack was plucked from the ranks; occasionally, a chap chosen for political reward was a downright, bigoted boor. Could this entrenched custom of patronage really be changing?"

The author? Why it's our old friend, Michelle Landsberg.

When the Conservatives appoint someone like Rachel Marsden to a JAC, we'll call it even.

[Mike]

"The Liberals have been doing this for decades, but when a Conservative does it, it's "perverted" (in the words of Ibbitson)."

So if its bad when the Liberals did it, why are the Conservatives doing it at all? At some point "Teh Liebrals did it First!!" is going to have to stop being an excuse for every half-baked action this government takes.

"Let's compare that to the actual record of the prior Liberal governments. As cited in this report, in 2003, just over half of federal Liberal appointees had donated to the Liberal party. In 2005, CanWest News Service found that more than 60% of judges appointed by the Liberals between 2000 and 2005 had donated to the Liberal party."

60% eh? How many donated to the Conservatives? How many donated to both? Would you care to then show how any of this impacts the judgments? Correlation does not mean causation. You need way more proof than these silly numbers. And a source other than the Fraser Institute, who is notorious for fudging numbers and making convenient errors in their "reports".

Sorry but these number prove nothing other than judges make political donations to the party in power. Quel Surprise!

Mike H, I call BS. According to my memory (and many history books) the Liberals were not in power in 1988. This system was brought in by Brian Mulroney. You remember him, he was a Conservative.

I also might remind you that it was these "Liberal" judges that came down with the Chaoulli decision too. Not something one would expect if they were in the pay of the Libs.

Bob, most of this was very good and very interesting, but nothing in it shows why the system we have now needs changingm - patronage yes, perhaps, but not one iota of proof that somehow this is affecting their actions on the bench.

[Bob Tarantino]

So if its bad when the Liberals did it, why are the Conservatives doing it at all?

I don't think it is bad - I think it's mendacious for the Globe to devote three days of hysterical coverage to the issue when they devoted precisely zero coverage to it happening under a previous government.

Would you care to then show how any of this impacts the judgments? Correlation does not mean causation.

Again, I agree. That was the point of my post: political affiliation (especially of the people on the advisory committees) has little or no bearing on the judgments which are rendered - so why is the Globe in such an all-fired snit about it? To repeat my last line: "Here's the challenge for Canada's worst newspaper: (1) identify unqualified appointees to the bench who have been appointed by this government; (2) make even a semblance of an argument as to why the political predilections of an appointee should disqualify them from appointment - an argument which does not include "because I disagree with their views". Then, and only then, would there actually be a news story here."

If the Globe is not willing or able to provide evidence of unqualified appointments, or to provide at least a vague theory as to why it is bad for a minority of Conservative partisans to be appointed to the JACs, then there's really no news story here. And if there isn't, then the Globe needs to explain why they are so het up about this issue at this moment in time, when they didn't trouble themselves with it for the previous thirteen years. The problem isn't the appointments, it's the Globe's coverage.

[Mike H]

"Mike H, I call BS. According to my memory (and many history books) the Liberals were not in power in 1988. This system was brought in by Brian Mulroney. You remember him, he was a Conservative."

Hmmmmmmm. I call BS on your BS, Mike.

Go back and re-read who appointed Landsberg to the JAC. That would be the " Liberal Attorney-General Ian Scott," from David Petersen's government. You remember him, he was a Liberal. Brian Mulroney had no say in her appointment.

[Mike H]

"60% eh? How many donated to the Conservatives? How many donated to both?"

Uhhhh, that would be "none," Mike:

"A CanWest News Service investigation published in 2005, and cited in the National Post this week, found more than 60 per cent of 93 lawyers who received federal judgeships in Ontario, Alberta and Saskatchewan since 2000 made donations to the Liberal Party, and only the Liberal Party, in the three to five years preceding their appointments."

Bob didn't quote far enough into the Montreal Gazette article to establish these 60% donated exclusively to the Liberals.

http://www.canada.com/montrealgazette/news/editorial/story.html?id=0570d57f-e4e9-4bb6-bab5-0428285d2bdc

"Sorry but these number prove nothing other than judges make political donations to the party in power. Quel Surprise!"

No, these numbers point to the fact that lawyers make political donations to the party in power so they can become judges, or, alternatively, that loyal Liberal supporters who happen to be lawyers are rewarded with appointments to the bench. Care to explain why judges, already being judges and all, would find it necessary to make political donations to the party in power? Once you're a judge, you pretty much have to get caught doing home invasion robberies in order to lose your place on the bench.

"I also might remind you that it was these "Liberal" judges that came down with the Chaoulli decision too. Not something one would expect if they were in the pay of the Libs."

By the narrowest margin, 4-3, on an issue which should have been unanimous. The fact that it wasn't unanimous is evidence of the left leaning ideological bias of the SCC. How else do you explain why 3 of the justices argued in favour of socialist single tier health care, and against one of the most fundamental of human rights; the right of the individual to control how he/she obtains needed medical treatment.