A show trial in reverse
Now that we know Mr. Justice Marshall Rothstein likes long walks by the beach, hates insincere people, and his favourite Beatle is Paul, what lessons can we draw from Monday's toe-in-the-water exercise in democratic accountability? Just this: that Canada's political culture remains as exquisitely constipated as ever.
To listen to either side, pro and con, you'd think the judge's appearance before an all-party Commons committee was a revolution. To the Prime Minister and his supporters, the mere sight of a prospective member of the Supreme Court answering a few perfunctory questions from star-struck MPs is enough to declare a new age of democracy. Opponents, meanwhile, were clearly on the verge of a nervous breakdown at this intolerable affront to the dignity of the bench, though the nominee himself endured his inquisition with good humour.
All this, over a process that could have no bearing on the actual outcome. The committee has no power of veto over the PM's choice, made from a list drawn up by the previous government, nor can they even make recommendations. MPs were given just three hours to question the judge, three days after his name was made public. Before they could begin, they were subjected to a lecture from Professor Peter Hogg on what they could and could not ask, lest any of these elected representatives forget their place and seek to probe into the judge's legal past. Thus chaperoned, they were further chided by the committee chairman, Justice Minister Vic Toews, who advised his former law professor that he need not answer any questions he found too troubling, which advice the nominee duly followed.
Members' only responsibility, apparently, was to comment on the "brilliance" of judgments they have never read, or to praise his many fine qualities as a human being. It was All. Just. So. Cozy. God forbid the hearings should "degenerate" into something useful, or that our tender sensibilities should be subjected to the "circus" of a judge actually having to explain his approach to the law.
Me, I was promised a circus. Or at least I thought I was: I thought the Conservatives meant their pledge to open up the judicial appointments process to public scrutiny -- not this show trial in reverse.
When did we become such prisses? We are told that the committee could not approve or reject a nominee, as that would require a constitutional amendment. Bunk: So long as the formal power is invested in the Prime Minister, he is free to take such guidance in his choice as he sees fit -- the same as he had promised to do with respect to Senate appointments, before that pledge, too, became inoperable. It is the same principle that permits referendums to be held, without violating the principle of Parliamentary supremacy.
A threat to the independence of the judiciary? Nonsense. I haven't noticed the U.S. Supreme Court lacking for independence -- certainly it would be news to Richard Nixon. For that matter, the "circus" that so many seem to fear is a rare occurrence even in American confirmation hearings. There's a reason why the Robert Bork and Clarence Thomas hearings have become so notorious: because they were so unusual. By contrast, the John Roberts and Samuel Alito hearings were comparatively free of trapeze acts or lion tamers, even in the bitterly partisan Washington of today.
It's odd to see Conservatives, of all people, evincing such concern for judges' prerogatives, after years of fulminating at "judicial activism." (For his part, Judge Rothstein did his best to assuage fears on that score -- rather too much, for my taste.) Surely it is possible to find some middle ground, between equating every exercise of judicial review with judicial activism, and equating the mildest bit of parliamentary oversight with an assault on judicial independence.
No one wants judges to be at the beck and call of Parliament. But neither should Parliament be subservient to the Prime Minister. A Supreme Court composed of judges who had been thoroughly vetted by a Parliamentary committee, whose judicial philosophy and past judgments had been reviewed and challenged in public, and whose appointments had been ratified by Parliament, would have far greater legitimacy than it has now. Its independence, far from being compromised, would be strengthened.
If this requires them to answer skill-testing questions, even submit to a bit of rough handling -- if you want to see some real roundhouse punches, try watching the Supremes beat up on the hapless lawyers appearing before them sometime -- well, so be it. These are our governors, with powers that rival those of Parliament. Why should they be exempt from the kind of scrutiny to which we subject other branches of government?
I'm told that elections are sometimes rowdy affairs, but nobody wants to cancel them.
To listen to either side, pro and con, you'd think the judge's appearance before an all-party Commons committee was a revolution. To the Prime Minister and his supporters, the mere sight of a prospective member of the Supreme Court answering a few perfunctory questions from star-struck MPs is enough to declare a new age of democracy. Opponents, meanwhile, were clearly on the verge of a nervous breakdown at this intolerable affront to the dignity of the bench, though the nominee himself endured his inquisition with good humour.
All this, over a process that could have no bearing on the actual outcome. The committee has no power of veto over the PM's choice, made from a list drawn up by the previous government, nor can they even make recommendations. MPs were given just three hours to question the judge, three days after his name was made public. Before they could begin, they were subjected to a lecture from Professor Peter Hogg on what they could and could not ask, lest any of these elected representatives forget their place and seek to probe into the judge's legal past. Thus chaperoned, they were further chided by the committee chairman, Justice Minister Vic Toews, who advised his former law professor that he need not answer any questions he found too troubling, which advice the nominee duly followed.
Members' only responsibility, apparently, was to comment on the "brilliance" of judgments they have never read, or to praise his many fine qualities as a human being. It was All. Just. So. Cozy. God forbid the hearings should "degenerate" into something useful, or that our tender sensibilities should be subjected to the "circus" of a judge actually having to explain his approach to the law.
Me, I was promised a circus. Or at least I thought I was: I thought the Conservatives meant their pledge to open up the judicial appointments process to public scrutiny -- not this show trial in reverse.
When did we become such prisses? We are told that the committee could not approve or reject a nominee, as that would require a constitutional amendment. Bunk: So long as the formal power is invested in the Prime Minister, he is free to take such guidance in his choice as he sees fit -- the same as he had promised to do with respect to Senate appointments, before that pledge, too, became inoperable. It is the same principle that permits referendums to be held, without violating the principle of Parliamentary supremacy.
A threat to the independence of the judiciary? Nonsense. I haven't noticed the U.S. Supreme Court lacking for independence -- certainly it would be news to Richard Nixon. For that matter, the "circus" that so many seem to fear is a rare occurrence even in American confirmation hearings. There's a reason why the Robert Bork and Clarence Thomas hearings have become so notorious: because they were so unusual. By contrast, the John Roberts and Samuel Alito hearings were comparatively free of trapeze acts or lion tamers, even in the bitterly partisan Washington of today.
It's odd to see Conservatives, of all people, evincing such concern for judges' prerogatives, after years of fulminating at "judicial activism." (For his part, Judge Rothstein did his best to assuage fears on that score -- rather too much, for my taste.) Surely it is possible to find some middle ground, between equating every exercise of judicial review with judicial activism, and equating the mildest bit of parliamentary oversight with an assault on judicial independence.
No one wants judges to be at the beck and call of Parliament. But neither should Parliament be subservient to the Prime Minister. A Supreme Court composed of judges who had been thoroughly vetted by a Parliamentary committee, whose judicial philosophy and past judgments had been reviewed and challenged in public, and whose appointments had been ratified by Parliament, would have far greater legitimacy than it has now. Its independence, far from being compromised, would be strengthened.
If this requires them to answer skill-testing questions, even submit to a bit of rough handling -- if you want to see some real roundhouse punches, try watching the Supremes beat up on the hapless lawyers appearing before them sometime -- well, so be it. These are our governors, with powers that rival those of Parliament. Why should they be exempt from the kind of scrutiny to which we subject other branches of government?
I'm told that elections are sometimes rowdy affairs, but nobody wants to cancel them.
3/01/2006
