When Supreme Court Justice Michel Bastarache announced his retirement in June, a process for nominating his replacement was set in motion. It was to follow the process that Prime Minister Stephen Harper put into place during the appointment of Marshall Rothstein.
But just as the Parliamentary committee was set to begin, Harper pulled the plug, citing “opposition obstruction,” and named Nova Scotia Court of Appeal Justice Thomas Cromwell as his choice.
“That was simply not true,” says NDP MP Joe Comartin, the sole NDP member on the committee.
“I was going to lead the first interview, which was scheduled for the Monday before the election was called,” Comartin says. “They cancelled it on the Friday, and then on the following Friday they announced Justice Cromwell was their pick, and they were doing away with the committee process.”
But just who is Justice Cromwell?
Dalhousie law professor A Wayne MacKay was a colleague of Cromwell’s when Cromwell taught at Dalhousie.
“We taught together and have written some articles together, so I know his work and his approach fairly well,” MacKay says. “I think he’s an excellent appointment to the Supreme Court. I think he meets all the requirements for that very important position.”
According to MacKay, Cromwell knows the law very well, and is considered by many in the province to be one of the foremost academic and intellectual members of the Nova Scotia Court of Appeal. Cromwell is also bilingual, an important consideration especially since Bastarache dealt a great deal with minority language rights.
Another point in Cromwell’s favour is that he once worked behind the scenes in the Supreme Court as the executive legal officer for then-Chief Justice Antonio Lamer.
But what of Cromwell’s judicial record?
“I would say that Tom is really pretty balanced,” MacKay says. “In some senses he probably could be described as a small-c conservative person, but I would say in terms of his judicial record and his approach, he’s very much somebody who goes with where the rational argument and where evidence would take him.”
Given Harper’s stance on the role of the judiciary, MacKay believes that Cromwell strikes a balance there as well.
“He is a judge who does recognize the importance of drawing a line between the judicial role and the legislative role,” MacKay says. “I can see him as a fairly influential middle-of-the-road judge. I don’t think he would always come down on the restrained side if he felt that the situation warranted a fairly activist judicial approach, but on the other hand, he’s certainly not going out looking for a large judicial role.”
Cromwell will still need to face an ad hoc panel of Parliamentarians before he is officially nominated to the Supreme Court, but in the past these panels have been run in such a way that the group cannot veto the choice, as in the US, nor can they ask nominees about personal opinions on moral issues or how they would rule in those cases.
The NDP’s Comartin said that he has not yet received word as to the timing of the panel, but believes that it won’t happen until after the House resumes Nov 18.