The political past of judicial appointees: Same as it ever was
Party donations made by new judges follow a long-standing pattern.
A National Post story this week on the pattern of past political contributions made by judges appointed by the Liberal government has Twitter/X in a tizzy over what is alleged to be a politicization of the judiciary under Justin Trudeau.
The Post and the International Journalism Foundation report that a handful of judges named to the bench since 2015 may have attended political fundraisers where the prime minister or the deputy prime minister was in attendance. The phrase “cash-for-access” embellishes the subhead.
The story draws on an earlier analysis that found Liberal donors were about three times as likely to be named to the bench at Conservatives.
The conclusion arrived at by many: that a $1,700 contribution to the Liberal Party of Canada is a fast-track to a cushy seat on the federal bench. One Post columnist followed up today with the obvious caution, “The judiciary has no room for partisanship, and certainly not for partisan financial gain.”
(The Post/IJF appears to have used the qualifier “may” as it doesn’t look like they could state with absolute legal certainty that the six judges they named did actually attend the in-person fundraisers, because the judges chose not to respond to their inquiries.)
Nevertheless, I was pleased to see this analysis, as I had worked on a similar story about judicial appointments under Stephen Harper’s Conservatives government in 2010, when I was with the Ottawa Citizen. (I can’t link because older CanWest/Postmedia stories are no longer online.)
Colleague Janice Tibbetts from CanWest and I performed the same kind of analysis, matching the list of federal judicial appointees, as reflected in the Privy Council Office’s database of governor-in-council orders, with Elections Canada’s data on political contributions.
As a data analysis project, it was pretty straight forward. Join the two data sets together based on the name and province of the donor and compute the percentage who donated to each party.
In fact, it was a lot more complicated. Matching the data gave us only a list of potential matches. We couldn’t be certain that a judge was the same person with the same name reflected in the Elections Canada data, which provides the postal code of the donor but not the occupation or other identifying information.
(Name collision was an issue, as it was in the recent confusion between former Public Order Emergency commissioner Justice Paul Rouleau of Toronto and Liberal donor Paul Rouleau of Port Colbourne, Ontario.)
Verifying each record required a lot more research — contacting each judge individually to confirm their donations — which the Post/IJF also appears to have done for their list.
In the end, Tibbetts and I found that of 270 first-time judicial appointees under Harper, 41 had previously donated to the federal Conservative party, versus 14 Liberal donors and one who gave to the New Democrats.
Another 25 names appeared to match but could not be positively confirmed so we excluded them from the calculation.
So, back then, Conservative contributors were about three times as likely to be named to the bench as Liberals, the same ratio as the Post/IRJ reporting shows, but inverted.
Even then, the number of political donors was only a smaller subset of judicial appointees — about 24 per cent of new judges had given to political parties.
This figure is, of course, much higher than the political contribution rate of the average Canadian. But consider that all those elevated to the bench are, by definition, lawyers first. And they tend to have substantially higher salaries and are often more politically active.
Still, the Post/IJF analysis is useful, coming after 2016 reforms that were intended to increase the transparency of the provincial Judicial Advisory Committees that provide a list of nominees to the justice minister, and presumably, remove politics from the consideration.
Those changes seem to have had some modest effect on eliminating the politics from the process, if these data are any guide. The Post/IJF’s data shows that, under the Trudeau Liberals, only 18.3 per cent of judges and federally-appointed tribunal members had given to parties earlier, down from the 24 per cent we found in 2010.
(The data are not directly comparable, as we did not include the appointments of tribunal members, as the Post/IJF did.)
The conclusion of our reporting in 2010 was not that the Conservatives were selling seats on the bench for the then-maximum donation of $1,100; it was that the justice minister and cabinet were choosing like-minded individuals of similar political orientation, which is reflected in their past financial contributions.
As we wrote, “There is no suggestion that any of the judges who donated to the Conservatives were promoted as pay back for their financial support.”
The same pattern appears to exist today. Conservative governments sometimes appoint Conservative supporters to the bench; Liberals sometimes appoint Liberals.
To appease those who consider this a sign of “corruption” (per Twitter, ad infinitum), the simple if ironic solution would be to disqualify anyone who had given to a political party in the past from eligibility for the bench.
That is, a post facto suspension of a basic right in Canada — to support a political party financially — that would apply exclusively to those empowered to interpret and uphold all other Canadians’ legal rights.