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Why public hearings with Supreme Court nominees should mean something

Wednesday’s ad hoc committee hearing turned into a farce


 

For advocates of greater transparency and democratic accountability in the Supreme Court appointments process, Wednesday afternoon’s ad hoc committee hearing—which gave members of Parliament an opportunity to interview the prime minister’s two nominees—was rather difficult to watch.

The questions ranged from vacuous puffery, such as asking Justices Andromache Karakatsanis and Michael Moldaver to name their personal heroes, to glib and disrespectful challenges to Moldaver regarding his inability to speak French. The broader question of whether Supreme Court justices ought to have proficiency in both of Canada’s official languages is most definitely a legitimate one. And it was certainly not out of bounds for members to ask Justice Moldaver about the importance of language capacity and his intentions to learn French. (I’ll set aside for now the debate about whether we should make bilingualism a prerequisite for appointment to the Court).

But by the time NDP MP Joe Comartin was using his second round of questions to ask Moldaver for the fifth or sixth time about the language issue, it had become painfully obvious that the hearing had nothing to do with learning about the judges or the role of the Court and everything to do with the MPs playing politics. Comartin had already asked a question in French to test Moldaver in a manner that could only have been meant to embarrass him. Not only was it rude, it was also pointless; Moldaver had already expressed regret and pledged to do his best to learn French as quickly as possible. It was as if Comartin hoped that his endless pestering would force Moldaver to quit, which is bizarre enough considering Comartin was on the committee that unanimously approved the short-list from which Stephen Harper named the two judges.

That sideshow notwithstanding, the hearing offered little of substance from which to learn anything relevant about the judges’ views on their role as justices or the role of the Supreme Court. It was a stark contrast from the first time a Supreme Court nominee was publicly interviewed in Parliament. The 2006 hearing where Justice Marshall Rothstein answered an array of questions on his views about the Court and its function had its share of fluff, but was truly edifying by comparison.

It is important to note that yesterday’s hearing was of little real consequence. The MPs have no power to confirm or deny the prime minister’s appointments. This fact has led some to question why we should care about the public interviews at all. Given that the public interview is the most substantive change in the appointments process, it is worth exploring its value.

The major benefit of public hearings like yesterday’s is that they (at least theoretically) represent an opportunity for Canadians to get to know the appointees and to learn something about their views on the Court’s relationship with the other branches of government, the Charter of Rights, and their role as judges. One hardly needs to be an expert on the Court or hold a degree in law to develop better questions for the nominees than “who are your heroes?” or interrogate them, as Comartin strangely did, about the precise date and time they first heard about their appointment.

To be fair, a small fraction of questions did touch on relevant topics, such as what the judges thought about expert witness testimony or balancing individual and collective rights, but as an informational or educational exercise, it was largely a failure.

The fact the opportunity was squandered this time says more about the lack of diligence (even lack of maturity) on the part of the MPs involved than it does the process itself. If we can’t trust the MPs to take the process seriously or to resist the temptation to grandstand, then it may be worthwhile to consider giving others an opportunity to pose questions to the judges. Peter Hogg, who as one of the country’s foremost constitutional experts gave the MPs guidance on what questions would and would not be appropriate to ask, could have facilitated a much more enlightening discussion all by himself.

The other argument in favour of public interviews is that they serve as a check on a prime minister who might otherwise appoint an ideologue or partisan to the Court. Despite the sense viewers may have had yesterday that the NDP members were dissatisfied with at least one of the appointees, it is fair to say that the questions posed to a candidate who was not considered qualified would have been significantly nastier.

While there is little evidence of overt patronage in appointments at the Supreme Court level, who sits on the bench matters. The Court is an inherently political institution that determines the outcomes of complex moral questions and policy issues over which reasonable people can reasonably disagree.

For this reason the common criticism that Harper has sought to make “ideological” appointments at least partially misses the mark because it assumes that appointments under previous governments were somehow apolitical. This is nonsense. Pierre Trudeau’s appointments, for example, completely revolutionized the Court. He sought judges who would apply the law in a more creative fashion, and he succeeded.

Appointing judges who would assert Charter rights more readily in the face of governmental policy decisions is no less ideological or political than appointing those who believe the Court’s role should be more limited. It is neither possible nor desirable to remove “politics” from the appointments process.

While reform should be crafted to avoid the overt partisanship that infects the American process, any process we do design should acknowledge the political reality that different judges approach their function in different ways. That is where a public hearing can ultimately be useful. It is unfortunate that this second stab at the public interview process wasn’t used to shed light on how judging actually works.


 

Why public hearings with Supreme Court nominees should mean something

  1. Emmett you ignorant slut. Sorry, didn’t want to disappoint you. :-)

    Anyhow, I disagree that these hearings serve any useful purpose at all. Getting to know all about you might make for lovely lyrics in a song but it’s irrelevant to Canadians who have no say in who gets hired for the job. In the system we have all that is important is how these justices rule and on that score the media has consistently failed to deliver. An analysis of Moldover’s rulings 5 years from now will tell us far more about him than a few hours of getting to know all about you questioning ever will.

    Unless these hearing are conducted before the appointments are made and put the power to block those appointments into the hands of the people’s representative, they simply serve no useful function and will remain nothing more than a forum for MPs to play politics. Until that happens get used to being disappointed.

    • Hi Robert,
      I actually agree with your last paragraph, but I didn’t “go there” because justifying a confirmation vote would take another entire column. I still think that these interviews can be a lot more useful. Once on the bench, justices aren’t compelled to give interviews. At the very least it would be nice to see them answer some substantive questions about what they think about the job.

      • At the very least it would be nice to see them answer some substantive questions about what they think about the job

        Then wouldn’t it make more sense to open up the selection committee process. I would hope that those who provided Harper with a list of candidates for him to choose from had done just that.

  2. Mr. Macfarlane, great piece!  Suppose an MP involved in the hearing had sought your advice about probing, illuminating questions to ask the judges.  What specific questions would you most like to hear the judges answer?

    • I’d love to hear more about whether the judges think there are any issues the Court should not involve itself in (effectively whether there is ANY “boundary” surrounding the powers of judicial review; what they think about the Court’s relationship with the other branches; how they confront the tension between their individual freedom to decide versus the modern Court’s tendency to use compromise and consensus to reach decisions (when are dissents/concurrences important, etc.). Like I said, I thought some of the questions yesterday were OK (such as the one on experts) but overall the MPs didn’t really do a good job.

  3. Great article.  It is a shame that Mr. Hogg’s questions didn’t get put to the justices and the answers printed for Canadians who are actually interested in learning something about the candidates’ interpretations of the law.

  4. What an excellent idea! Let’s have US style confirmation hearings to de-politicise appointments to the Supreme court. What could possibly go wrong?

    Are you crazy?

    • Could be worse. They could make us vote for them. At the same time i wonder if mps are not behaving seriously becuse they know they have no power to influence decisions or is it an indication that they are best kept away from any real say so at all?

      • Well, one problem is that some MPs are grossly unqualified to be questioning Supreme Court appointees as part of this process.  For example, many or even most MPs have no legal training or education.

        I know this is considered to be a terribly unfashionable view these days, but personally my attitude towards our Supreme Court appointments (and the process) is:  if it ain’t broke, don’t fix it.  Sure, there are some SCC decisions I disagree with, and in some cases quite strongly, but generally our judges have been excellent, the court works well and we don’t have the toxically politicized process that they have in the US.  Our SCC is held in much higher esteem among Canadian lawyers than the US Supreme Court is among US lawyers, and that’s because a number of US appointees have been blatant partisan hacks who have demonstrated clear and sustained ideological biases once appointed, some of the most egregious examples being Antonin Scalia, Clarence Thomas and Samuel Alito.  It’s an extremely polarized court down there.

        • Yes i’d agree with all that. I must say i’m surprised that Harper hasn’t tried to place judges who are more favourably disposed toward his view of  judicial activism. I hope he retains this attitude.
          Canada has a right to be truly proud of its judiciary.

        • For example, many or even most MPs have no legal training or education.

          I’m a little confused by that….on two counts.

          First, I don’t believe that a lack of legal training or education necessarily disqualifies any MP from asking appropriate questions of potential SCC nominees.  A fairly basic level of intelligence coupled with an interest in public policy and a genuine ‘thirst for knowledge’ should suffice.  If we can’t find even those modest requirements in our MPs……

          Second, if MPs aren’t qualified to ‘interview; SCC nominees, WTF are they doing passing new legislation?

          • On the first point, I’d just point out that obviously a lawyer or someone with some sort of legal training is better equipped to question a SCC nominee on complex legal issues than a non-lawyer or someone with no legal training.

            And on the matter of passing legislation, that’s the thing — most MPs merely say yea or nay. They don’t draft it.  And at times when they do (e.g., certain wacko private members’ bills), the fact that they aren’t trained lawyers shows.  But typically what happens in our legislatures is the actual bills, Acts and amendments are in fact drafted by lawyers and other trained experts (e.g., graduates of legal drafting programs).

            Look, full disclosure:  I’m a rank elitist in this regard.

          • Does your rank elitism extend into other public policy areas?   :-)

            If so, you must be doing lots of cringing these days…

          • Certain other areas, yes. 

  5. Harper’s past appointees have had no problem making judgements that don’t conform to conservative ideology or interests. Why would future appointees by this government or any other be different? The status quo works.

  6. …” nothing to do with learning about the judges or the role of the Court and everything to do with the MPs playing politics.”…
    No s…!
    Harper and his fascination with American governance. The process does nothing for law, justice or transparency.  The process was a humiliating sham for the nominees, parliament and the country.

    • It’s rather ironic that most of the people in Canada — academics, pundits, etc. — who are clamouring for a “US-style” nomination and vetting process are NOT Conservatives, very far from it.  Most of them are left-liberal in their political orientation.  And of course the MP who was the biggest jerk in this latest go round (Joe Comartin) was a Dipper.

  7. I would say that 95% of appointments, any apointments, made by politicians at all levels, reek of partisanship. Party affiliation is the first criteria, then somewhere down the line comes the important asset, ability.
    I have been voting for almost 50 years and as a young person I was taught that my vote was a sacred thing. A privilege that is very personal but times have changed. Today, because it is advantageous, people openly support a party and are usually stuck with that party for life.
    I have had the pleasure of voting for the candidate and as a result I have voted for many different parties.

    The debate for our Supreme Court nominees is a waste if time. As a matter of fact, any debate with this government is a waste of time.

  8. I fail to see how asking a prospective Supreme what his/her views are on any specific topic has anything to do with anything other than politics, as has been pointed out several times earlier. A well-qualified individual has to be chosen somehow, and the current system has worked pretty well sunce 1867. And to give politians yet another platform to pander to their own narrow ideologies or constituencies is a waste of everyone’s time.

    A thoughtful, accomplished and open-minded individual would always be my choice even if I may not agree with personal ideologies. And the Dipper attempt to inject the ability to speak French as a limiting factor is ludicrous.

  9. Politics follows the same main rule evolution follows, If it isn’t broken don’t fix it. ie. Alberta-Conservative for 40+ years because it works.

  10. I don’t see any good reason to move towards a US style vetting procedure.  What we have now works well.  It ain’t broke, don’t “fix” it!

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