MONTREAL—In a perfect but unlikely world for the federal government, the Supreme Court on Wednesday would have put behind it the issue of Justice Marc Nadon’s eligibility to sit on the top bench.

Having heard all the arguments, it would have agreed with Prime Minister Stephen Harper’s contention that the appointment of a Federal Court judge to one of Quebec’s three seats on Supreme Court — while unprecedented — is perfectly legal.

An immediate ruling backed by more elaborate reasons a few weeks from now would have, by the sheer virtue of its swiftness, vindicated Harper’s choice.

Nadon has been in professional limbo since October. The longer the issue festers the more awkward his predicament and that of the court becomes.

But closure or at least a resolution of the issue will have to wait some more. And until it the court has made up its mind, the Harper government can only hope that its members will save it from its own recklessness.

The Supreme Court may, after more consideration, accept the federal argument that the appointment is legally above board. That would clearly be the path of least resistance. Every other avenue puts the court on a straight collision course with either the provinces or the federal government.

That starts with the route tentatively paved by Harper to get the court on side even if it finds that Nadon was not in the judicial pool from which Quebec nominees are legally drawn.

The federal government is arguing that it has the power to retroactively expand that pool, without provincial consent. It tagged a few paragraphs to its mega-budget bill to do just that last fall.

A ruling based on a retroactive federal rewriting of the criteria would allow Nadon to take his appointed seat but only at the cost of an untimely hit on the Supreme Court’s legitimacy in Quebec.

It would bolster the sovereigntist case that the court is little more than a tool of the federal government and that at a time when the hyper-contentious issue of the PQ’s planned secularism charter may be headed its way.

Moreover, the notion that the federal government can toy with the qualifications required of a Supreme Court appointee at the stroke of a pen is raising hackles not only in Quebec but also in Ontario. It, too, argued on Wednesday that it is unconstitutional.

The alternative is for the Supreme Court to block Nadon’s appointment. But that would open the court to allegations that it is seizing a technicality to thumb its nose at Harper — with attending damages to an already strained relationship between the country’s judicial establishment and the Conservative government.

Meanwhile, one can only wonder what could have led the federal government to drag the Supreme Court into a mess that stands to sully its credibility, that of the prime minister or both for an appointment that has, on merit, mystified most legal observers.

A word in closing on the due diligence of the opposition: This is the third time in this mandate that the NDP and the Liberals have been consulted on appointments that have subsequently blown up in the face of the Harper government for reasons of particular interest to Quebec.

The appointment in 2 011 of Justice Michael Moldaver made waves because he was not bilingual. But the NDP — even as it was championing a bill to ensure that Supreme Court candidates be able to hear arguments in either language — had signed off on a short list that included his name.

The Liberals and the New Democrats were consulted on the similarly controversial appointment of auditor general Michael Ferguson. (He has since learned French and Moldaver is struggling to do so.)

In the Nadon case, two leading opposition critics — New Democrat Françoise Boivin and Liberal Dominic Leblanc — sat on the committee that looked over the short list from which the prime minister drew Nadon’s name.

Loading... Loading... Loading... Loading... Loading... Loading...

If the opposition parties can’t leverage the cover they provide to the government on high-profile appointments into input that reflects their publicly stated principles, why do they continue to be willing participants in such consultations ?

Chantal Hébert is a national affairs writer. Her column appears Tuesday, Thursday and Saturday.

Read more about: