Evaluating Federally Appointed Judges in Canada: Analyzing the Controversy

This commentary describes our experiences in trying to undertake a judicial performance evaluation of federally appointed judges in Canada. Some respondents were enthusiastic about the project, but others were strongly opposed to it and worried about the effects that our survey would have on judicial independence. After describing the feedback that we received and the fallout from our project, we examine the relationship between judicial performance evaluation and judicial independence. We argue that a well-conceived judicial performance evaluation does not violate judicial independence. We then explore the resistance to judicial performance evaluation in Canada, using a comparative lens. The explanation for this opposition, it seems, lies partly in the broader socio-political context found in common law jurisdictions with parliamentary systems of government and no judicial elections. In our view, opposition to outside academic inquiry from strong elements within the Canadian legal community also forms part of the answer

Does Patronage Matter? Connecting Influences on Judicial Appointments with Judicial Decision Making

The federal government\u27s power to appoint judges has come under increased scrutiny in recent years. While many suggest that partisan affiliation, gender and professional background may be influencing the Canadian appointment process, and some have called into question the fairness of such influences, little attention has been directed at determining whether these characteristics influence the outcome of cases. This paper studies decisions made by the Ontario Court of Appeal between 1990 and 2003 and uses a unique measure of partisan affiliation in an attempt to answer the question: do characteristics which play a role in the appointment process influence judicial decision makin

Exploring the Links Between Party and Appointment: Canadian Federal Judicial Appointments from 1989 to 2003

Studies of federal judicial appointments made before 1988 discovered significant partisan ties between judicial appointees and the governments appointing them. In 1988, in response to criticism of these “patronage appointments,” the Mulroney government introduced screening committees to the process. This article explores the impact of these committees. Using information gained from surveys of legal elites, we trace the minor and major political connections of federal judicial appointees from 1989 to 2003 in order to determine whether patronage has continued despite the reform to the process. We discover that political connections continued to play an important role in who was selected for a judicial appointment. However, these connections were not quite as common as those found before 1988, and the new process does appear to have prevented the politically motivated appointment of completely unqualified candidates. Interestingly, our findings also suggest that the impact of patronage varies by region and interacts with other, newer influences, in particular, concerns for group representation on the bench. The paper concludes by briefly discussing these results in the context of the relationship between judicial selection and politics with a comparative perspective

Understanding Judicial Hierarchy, Reversals and the Behavior of Intermediate Appellate

One of the central controversies in the judicial behavior literature is the extent to which judges' ability to act according to their ideological preferences is affected by their location in the judicial hierarchy. Judges on intermediate appellate courts have different decisionmaking environments than high court judges. As a result, the goals of lower appellate court judges may differ from those of their superiors: the quest for legal accuracy may compete with the desire to pursue policy preferences. Analysis of the reversal rate of the U.S. circuit courts of appeals offers insight into the extent to which these judges balance the pressures of their own policy preferences with the desire to achieve the legally accurate result in cases they decide. Int eraction between first-level and second-level appellate courts is a subject that has garnered increasing attention over the past several years, but an opportunity to bridge disciplinary divides by integrating recent scholarly work by political scientists and legal academics has largely been missed in the process. Disagreements between the two levels of courts produce reversals of the lower court by the higher court, but the process that drives such reversal is not well-understood given its importance in maintenance of judicial organization. Particularly in systems where review by the second-level appellate court is discretionary, higher courts reverse lower courts in pursuit of making broader policy statements, so the process takes on added importance. Work that assesses decisions by high courts to grant leave to appea

The effectiveness of interest group litagation: an assessment of LEAF's participation in Supreme Court cases

Bibliography: p. 116-121.Beginning with quantitative studies of bottom-line win-loss rates, the literature on interest group litigation success has progressed to the more qualitative comparison of judicial reasoning with the arguments submitted by a particular interest group. The next logical step is to compare judicial reasoning with all of the submissions placed before the court, not just those of the interest group in question. Such painstaking comparison is time consuming and the results are likely to be open to interpretive dispute; nevertheless, it is in principle the best way to assess the effectiveness of an interest group's litigation strategies. This thesis undertakes such a study of the effectiveness of the Women's Legal Education and Action Fund (LEAF) in 14 Supreme Court cases

Unpacking the Debate on Judicial Appointments Outside the United States: What Research Might Be Able to Contribute to the Normative Conversation

Until relatively recently, judicial selection did not stir up much interest outside the United States. However, with the increase in judicial power in courts around the world, the process of judicial selection has received more attention. Debates about possible reforms to the selection process have emerged on the political agenda of many countries (Malleson 2006, 10). These debates tend to revolve around two major dimensions. First, how desirable is it to have political input into the selection process compared to a process that is more insulated from partisan or electoral race, language, religion, region, or disability) emphasized in the selection process