In an exclusive interview Tuesday in which he confirmed his departure, Major advised Prime Minister Paul Martin, and the new independent advisory committee that will vet contenders for the Prairie spot, to look for an open-minded jurist, without a political or other agenda.
The new judge "has to remain independent, but not intransigent," suggested Major, alluding to the give-and-take necessary amongst the court's members in order to build unanimous and majority judgments.
"Intransigence is where a person just digs in, and nothing can move him," he elaborated.
"You hope that the (new) person can be moved by logic, by a better argument. You hope that the person is independent, but open-minded, with no agenda."
Justice Major need not fear such a person being appointed to the Supreme Court, if by "intransigent" he means "conservative". Decades of ideologically-driven law school scholarship has produced a generation of lawyers, schooled in the Trudeaupian principle of the judiciary as both supreme interpreter of the law and creator thereof.
Even if the Prime Minister wanted to appoint someone who didn't hew to liberal ideology, he would be hard-pressed to find a person of sufficient stature in the legal profession or judiciary to appoint.
A lawyer who expressed the view that judicial activism is merely Liberal politics by another method, or that the Charter of Rights and Freedoms protects neither, would never be considered for any judicial appointment.
Major acknowledged it is always difficult to select a Supreme Court judge, a task complicated for this vacancy because Cotler plans to use an experimental new appointment system announced last April to fill the vacancy.
Up until now, the prime minister made the choice after private consultations with the legal community. Under the new system, the PM will choose from three names on a short list provided by an advisory committee.
Justice officials have been working to create a list of up to eight or 10 contenders that Cotler will present to a new nine-member ad hoc advisory committee. The advisory committee has yet to be struck, but it will include MPs from each of the four federal parties, as well as two "eminent" Canadians appointed by Cotler, a retired judge appointed by the Canadian Judicial Council, one person appointed by the Prairie attorneys general, and one person appointed by Prairie legal regulators
Window dressing, all of it. The advisory committee will not publicly examine the candidate so that the public will know their ideological views; its membership will still be dominated by Liberal or Liberal-friendly appointees; and it will choose only from the list selected by Irwin Cotler, without being able to recommend its own candidates.
The end result will not be any different than if Martin had followed the usual method.
The difference between this secretive and paternalistic selection process and the one which will confirm or reject John Roberts' appointment to the U.S. Supreme Court reflects the difference in our respective governing classes.
Our government doesn't trust the people to understand the issues involved in appointing a Supreme Court judge. The U.S. government, however imperfectly, does.
Source: Saskatoon Star-Phoenix