Judges in Canada and the Untied States are held up as the pinnacle of moral superiority in each country. They are appointed, and sometimes elected, to uphold the Constitution or Charter, and to make the decisions that average citizens could not, and should not, make themselves. They are highly trained, skilled individuals who provide an essential service in Canada and the United States. Yet if they are the moral compass that guides the country, is it also not their moral duty to bring to larger attention the issues that plague the judicial system? The issue of judicial independence in making decisions should be spoken publically about, as well as the selection process for judges, as this directly impacts the judicial branch’s autonomy. However, issues that have no bearing on a judge’s ability to make decisions, such as their salary, have no place in the public sphere.

   In 2005, Chief Justice William H. Rehnquist issued his year-end report on the federal judiciary in the United States of America (Greenhouse, 1). Within it, the chief justice made not of the suggestions made by the United States Congress to impeach judges who issued decisions that were deemed unorthodox (Greenhouse, 1). This is an issue that needed, and still needs, to be discussed widely, because it threatens the autonomy and the independence of the judicial branch. If judges are to make decisions based upon a fear of the “ultimate remedy” (Greenhouse, 2) of impeachment from Congress, or other governmental bodies, then fairness and equality cannot be given to each and every case a justice hears. A judge’s job is to hear the facts of the case and then make the best decision they can based upon those facts, and precedence, to continue to uphold the moral superiority of the judicial branch. Citizens who come to the court to have life-changing decisions made need to have trust in the independence of the judges and the system in which they preside. In this case, judges should be expected to bring the situation to wider attention so that all citizens, whether or not they are currently using the legal system, can continue to make their voice heard in government regarding judicial independence.

   While judges have to speak out against government trying to limit their independence, they also have to speak out against other public groups who wish to make an issue out of the choices, or requirements, of being a judge. Chief Justice Beverley McLachlin came under fire recently for chairing the Order of Canada advisory committee, which selected abortionist Dr. Henry Morgentaler as a recipient (Makin). Although the chief justice did not vote, groups such as the Canadian Family Action Coalition accuse her of “expressing approval of Morgentaler’s activism on abortion” (Makin) since she “expressed her approval of the process” in chairing (Makin). Chief Justice McLachlin is speaking out, stating that in her role she is legally bound to chair the committee, and takes a view of impartiality over the entire process (Makin). In this instance, public groups and the media are attempting to cast doubt of the chief justice, and it would be unreasonable to expect her, or anyone else, to sit back and accept such defamation over an act that she had no choice in. Further, in whatever decisions the chief justice makes, whether it is a legal decision or chairing a committee, given her position is it not her right to independently and without backlash make the decisions she believes to best interpret the laws of Canada?

   The nomination and selection process for judges in Canada and the United States is a contentious issue, and no more so when the impartiality of the process comes into question. In 2007, questions arose whether or not the Harper-appointed selection committee for federal judges was stacked and the independence of the judiciary threatened (Rusnell). Both the federal chief justice and Alberta’s Chief Justice Allan Wachowich are speaking out about the situation, announcing that the situation “will undermine the public’s trust in the judiciary” (Rusnell). By having police officers and Conservative supporters on the committee, what should be a non-partisan process is biased and no appointment made by the committee can be considered fair unless there is equal representation from other law agencies and political parties. The chief justices are right to speak out about the issue because a central basis of the legal system, fairness and equality, are threatened by the possible appointment of judges that adhere strongly to one side of the political spectrum. While judges are expected to leave their political views for outside the courtroom (Rusnell), that is not always the case, so all appointments must be made with due care to provide a fair, balanced judicial system.

   Judges in Canada and the United States do not always have the freedom to speak out on the issues that they wish. As the moral compass for the country, a judge is seen as “if not mystical, mysterious” (Liptak). Yet on issues that affect the public’s trust in the judicial system, such as independence in the appointment process, or the freedom to make rulings, need to gain public attention. The judicial branch may only function at its full potential when it is as autonomous as possible, and it is, in part, the responsibility of its judges to ensure that.


Works Cited

Greenhouse, Linda (2005,01,01). Rehnquist Resumes His Call for Judicial Independence. The New York Times.

Liptak, Adam (2007,04,16). When a Judge Offers an Opinion Away From the Bench. The New York Times.

Makin, Kirk (2008,08,18). Critic unimpressed by top judge’s explanation on Morgentaler. The Edmonton Journal, p. A4.

Rusnell, Charles (2007, 03, 02). Scales of justice ‘out of alignment’. The Edmonton Journal, p. A3