NATIONAL

LIGHTLY GRILLED

Polite, but pointless, the Supreme Court nomination hearing could have used a lot more American style

LUIZA CH. SAVAGE March 13 2006
NATIONAL

LIGHTLY GRILLED

Polite, but pointless, the Supreme Court nomination hearing could have used a lot more American style

LUIZA CH. SAVAGE March 13 2006

LIGHTLY GRILLED

Polite, but pointless, the Supreme Court nomination hearing could have used a lot more American style

LUIZA CH. SAVAGE

“If there’s an easy way and a hard way, the Rothsteins always choose the hard way,” quipped Marshall Rothstein, the federal appellate judge from Manitoba who last week became the first ever to endure a public nomination hearing before his elevation to the Supreme Court of Canada. Or maybe not so hard. After years of warnings that Canada’s first public questioning could only lead to the excesses of an Americanstyle inquisition, it was barely an interrogation. The two nations’ ordeals seemed to have little in common beyond the presence of politicians and a judge.

To begin with, the Canadian questioning came, perplexingly, after members of all four parties had approved the candidate. In an experimental process begun by the Liberal government before its defeat, a list of six names was whittled down to a short list of three by an advisory committee that included members

of all political parties. It was from this short list that Prime Minister Stephen Harper made his pick. This left the questioners straining to outdo one another with proclamations of Rothstein’s “intelligence” and “wit,” while the 65-year-old jurist sat with eyes downcast and hands folded, blushing like a star pupil beneath his comb-over. “After this,” Rothstein said, only half in jest, “I’ll have nowhere to go but down.”

But even if the people’s elected representatives hadn’t liked what they saw, it wouldn’t have mattered. Unlike the American senators who actually vote on the nominee, the Canadian MPs had no say. The decision remains, as it always has, the Prime Minister’s. Harper has said he will continue to study changes to the system to make it more democratic and transparent, though if all judges serve until their mandatory retirement age of 75, the issue may not arise again until 2013.

The theatrics differed too, beginning with the stage. In Washington, members of the U.S. Senate judiciary committee lob their questions down from a raised platform like lightning bolts from Mount Olympus. The nominee

sweats it out alone in his hot seat, while his relatives watch from behind him and, when dramatically appropriate, break into tears. In contrast, last week’s scene was more like a family dinner, with MPs sitting around tables arranged in a rectangle, with their honoured guest at one end of the table, and at the other, Justice Minister Vic Toews—who, it emerged, was a former student of Rothstein’s and confessed to finding him “an imposing figure.” And the judge did not sit alone. He was flanked by Peter Hogg, constitutional law scholar cum chaperone who was invited to ensure that the hearing was carried out with what he called “the Canadian virtues of civility and moderation.”

To that end, Hogg had a laundry list of “forbidden questions”—basically anything having to do with any opinion Rothstein had written or might ever write in the future, or most other things that would be considered relevant by an inquisitor like, say, New York Democrat Chuck Schumer, who told George W. Bush’s nominee John Roberts: “You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers’ rights, women’s rights and a host of other issues relevant to the most powerful lifetime post in the nation.” Or committee chairman Arlen Specter, a pro-choice Republican who told Roberts, “Senators have the right to ask whatever question they choose. And you, Judge Roberts, have the prerogative to answer the questions as you see fit, or not to answer them as you see fit,” adding that in his experience, “Nominees answer about as many questions as they think they have to in order to be confirmed.”

In case Hogg’s rules were not enough, Liberal MP Sue Barnes used her first question to invite Rothstein himself to lay down his own limits for what he would talk about. “Most of

us sat around the table trying to abide by the gravity of the situation,” she explained afterward. “We did not want to cross any lines.” In contrast, the first question Roberts faced was a half hour of Specter prodding him to explain whether he considers the abortion rights precedent Roe vs. Wade to be settled law, precisely how settled, what exact criteria he would use for judging when it could be reopened, whether the constitution contains an unwritten right to privacy, and so on. The senators had 30 minutes each for such exchanges, the Canadian MPs had only four.

And while the stakes in the Ottawa hearing hovered around zero, they could hardly have been higher in the U.S., where nominee Samuel Alito was replacing Justice Sandra Day

O’Connor, a key swing voter who was the deciding vote in 77 per cent of the 193 closely split decisions in the past decade. No one argued that Rothstein’s vote would swing the court on any issue, but then again, they didn’t have time to look too closely. Harper announced Rothstein’s name on a Thursday; the hearing was held the following Monday. That’s 41 days fewer than senators had to prepare to question Roberts, and 67 fewer than Alito. In that time, U.S. senators hired entire staffs to research the nominee; activist groups on the right and left did their own investigations; the National Archives released “document dumps” of thousands of pages of paper trail; and the news media fed off the story for months. “There, everyone does better work,” said for-

iNATORS HAVE UP TO 30 MINUTES TO CANADIAN MPs HAD FOUR MINUTES.

mer Liberal justice minister Irwin Coder, who oversaw the creation of the short list of candidates. “We need more lead time to appreciate the candidate’s judgments and writings.”

Despite the constraints, there were a few illuminating moments. One came when Rothstein made the rare admission that judges do make policy—when applying a section of the Canadian Charter of Rights and Freedoms that allows the government to limit rights so long as the limits are reasonable in a free and democratic society. “When it comes to section 1, the judges are forced a little bit into what is sometimes called a policy area. The difficulty is that it involves line drawing, and that sometimes takes us into an area that, if it’s not there, then it’s close to policy making.” He added that judges should proceed with caution.

Otherwise, Rothstein had little trouble answering the eclectic array of questions. Is the gun registry useful? (“That’s not my area, that’s your area.”) Should poverty be added to the Charter as a forbidden ground for

discrimination? (Ditto.) Are courts too soft on crime? (That’s for the criminologists.) Should more judges be added to the top court? (“If I don’t make it in this round, sure!”)

The American hearings have been criticized because clever nominees are able to slink out of tough questions with vague answers. But they are not useless. The choice of questions to dodge can inform a senator’s vote. And the prospect of a humiliating hearing and vote helped end the candidacy of White House counsel Harriet Miers, widely considered a political crony with no judicial experience. Canada’s upfront vetting could have the same effect. “Given our comprehensive screening process, a Harriet Miers could not have come before this committee,” said Coder. Whether there will be a hearing for the next Supreme Court nominee, or whether the rules will be the same, remains to be seen. But Canadians now know more about Rothstein than any other Supreme Court nominee. In the end, it proved less taxing on the candidate than on the MPs. Three and a half hours into the proceedings, a Bloc Québécois MP moved to end them. Running out of questions and having proven they are not Americans, no one in the room objected. M