Q: But many Canadians fear public confirmation hearings and putting a judge to a vote by the Senate would “politicize” the judiciary.
A: Once you accept that the Canadian Supreme Court and U.S. Supreme Court are these enormously important makers of policy—only someone who is naive or who is being nominated to a seat on the court denies that—the argument about politicizing the court seems beside the point. The court is a political institution. Why not treat it like one? There is this uncritical acceptance by the Canadian people of a notion that judges are above politics. They are not. By politics here, I don’t mean partisan politics. I mean the promotion of a social, economic, and political vision of how the country should be structured and run. Of course judges act on some view of the world. How could it be otherwise?
Q: The U.S. court is criticized as being divided along partisan lines. In your research, did you find differences between judges appointed by Conservative and Liberal prime ministers?
A: I didn’t see any obvious differences. People point out Jean Chrétien’s appointments to the court all had some connection to a provincial or federal Liberal party. If you look at the two Harper appointees, Marshall Rothstein and Tom Cromwell, it was widely acknowledged that Rothstein is a small-c conservative. Cromwell is harder to pigeonhole. But there is not the kind of screamingly obvious partisan point of view one sees in the U.S.
Q: What do you want to hear the election candidates debating with regard to the court?
A: The makeup of the court should be an election issue. People are asking, for example, do we need new fighter jets? We should ask, what about the Supreme Court? You want to be prime minister, Mr. Ignatieff? And you, Mr. Harper? What kind of people are you going to put on the court? I want to hear the candidates debating what the Supreme Court should do, how it should run.
Q: Harper’s first appointee to the court, Rothstein, was given a hearing before a parliamentary committee. But it was kind of a dud.
A: By all accounts it was a joke. There were very softball questions. The committee was instructed by an eminent law professor, Peter Hogg, that it couldn’t ask questions about controversial issues. Right from the get-go the committee was hobbled. It also didn’t have any power to reject the nomination. It was all window dressing.
Q: The U.S. has a cottage industry of interest groups that exist to influence the selection of judges. They vet the candidates, read all their past decisions, dig into their student papers and their speeches, and then they hand it over to the senators or leak it to the media.
A: Why not? It seems to me we are entitled to know more about these people who are going to be in very powerful positions for a very long time. Why shouldn’t we have a system in which, if we find out something we don’t like, we can stop a nomination? Canadians still have this tremendous deference to judges, even to candidates for judicial office. We don’t want to challenge them. We don’t want to say anything that might be considered rude or impertinent. Deference to authority and the famous Canadian politeness are not appropriate in this context.
Q: You can watch Supreme Court of Canada arguments on television or online. In the U.S., cameras are banned from the courtroom. But you write the judges should be more transparent, they should even go on Facebook.
A: The point I’m trying to make is that very traditional ways of communication are not adequate in the new age. It’s not enough to archive video of arguments before the court. For one thing, they are deathly dull.
Q: You are opposed to judges sitting until age 75, the current mandatory retirement age. Why?
A: A judge can sit there for 20 or 25 years, which makes it difficult to refresh the personnel on the court and to have fresh new ideas and to reflect a rapidly changing demography. I’d like a 15-year non-renewable term.
Q: You write that judges on the top court should be required to be bilingual. Why?
A: This is an unpopular view, but I think this is a bilingual country and it’s more than just symbolism to have judges of the highest court proficient in both official languages. A number of francophone lawyers who have argued before the Supreme Court can point to examples of how their arguments were not understood fully or inadequately translated. They believe this put them at a disadvantage.
Q: What questions would you ask a judicial nominee?
A: I don’t think you could ask a question like: if abortion came before the Supreme Court again, how would you decide the case? But I think it’s fine to ask questions designed to elicit his world view, his view of how the country should be organized, his legal record, judgments given in his judicial career to date. In the U.S., senators ask anything they want. Broad questioning can sometimes be awkward and embarrassing. But that’s not the end of the world. It is often said that if judges were publicly questioned, many people would not allow their names to be put forward. I say, bunk. If they are not prepared to answer questions, maybe they shouldn’t be Supreme Court judges. Is it demeaning to their dignity? Rubbish.
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