We're well on our way to becoming the 51st US state, thanks *so* much Mr. Harper, you neocon fuckwit..

Harper's choice to be named Thursday
Critics fear drift to `political judiciary'
Feb. 21, 2006. 09:40 AM
SEAN GORDON
OTTAWA BUREAU


OTTAWA—Prime Minister Stephen Harper will fill the Supreme Court's vacant seat through an unprecedented process that's leaving many legal experts — including the judge Harper is about to replace — somewhat uneasy.

The nominee, to be named Thursday, will submit to a three-hour, all-party public hearing on Monday.

That raises the spectre of American-style confirmation hearings — which became notorious in the 1980s for the caustic partisanship surrounding nominees Robert Bork and Clarence Thomas — that now usually result in votes along party lines.

However, that is unlikely to happen in Canada this time. Even though MPs will question the future Supreme Court justice, there will be no vote and the final appointment will rest with Harper.

And because the nominee will be named from a short list of three Prairie candidates compiled for the previous Liberal government by a parliamentary subcommittee, the choice won't likely raise partisan hackles.

The nominee will replace John Major, the Prairies' lone representative on the nine-member court, who was appointed from Alberta. Because the pick traditionally rotates among the three Prairie provinces, the nominee is expected to be from Saskatchewan, which hasn't had a native of the province appointed to the court since 1973.

"The mere fact that a public hearing will take place represents an unprecedented step forward," Harper told reporters yesterday, adding the nomination will be "the least partisan process in history."

But that does little to reassure the Canadian Bar Association, which immediately criticized the decision to hold public hearings, saying it risks denting the public's perception of judicial independence and leaving the impression the courts are being directed by Parliament.

Former Supreme Court justice Major, who reached the mandatory retirement age of 75 in December, questioned the usefulness of the exercise to replace him given that the current process provides for wide consultation and rigorous scrutiny.

"My objection, and I don't lie awake worrying about it, is: first, what purpose does it serve? And I know the mantra on this is more transparency. Well, in what way? What will we learn?" Major said when reached in his Calgary law office. "Maybe it's progress. I just don't think the case has been made to establish the value of this in selecting the most qualified person."

Major added that public hearings could result in politicizing a process that already works well.

Ontario Attorney General Michael Bryant added his voice to the chorus of dissent, saying the decision to hold hearings means tinkering with a process that works fine, and will ultimately succeed in creating only "faux accountability" and "a more political judiciary."

"If you want to Americanize and politicize our judicial system, today is a big step forward towards that," said Bryant. "It is driven by partisan sour grapes."

Iroquois Falls lawyer Susan McGrath, the past president of the Canadian Bar Association, said the top court is world-renowned and its reputation could be damaged if the door is opened to partisan hearings on appointments.

"We believe the process should be open and transparent. However, we don't see what questioning candidates about their personal beliefs or past judgments in a public forum will (do to) help the administration of justice," she said. "We're more concerned it will undermine public confidence in judicial independence."

Justice Minister Vic Toews said he was surprised by the criticism, insisting there is "an inherent good" in the hearings.

"The fact that the process is public has merit in itself," Toews said. "There is much to be said about having a more open, transparent process when it comes to appointing one of the nine most powerful people in this country."

It's an opinion shared by other legal scholars.

"I don't think this is a bad thing. There's a lot of secrecy surrounding the process," said University of Alberta law professor Sanjeev Anand, adding federal lower court appointments are also ripe for reform.

Conservatives have long criticized what they term "activist judges" and in the election campaign Harper drew fire when he suggested "Liberal-appointed" courts would act as a counterweight to a possible Tory majority.

Yesterday, Harper talked about seeking the "judicial temperament" in a Supreme Court nominee, and expressed his preference for jurists who are "prepared to apply the law rather than make it" and avoid being "inventive" in their rulings.

Past comments by Toews, Harper and others have stoked fears on the part of political opponents that the Tories would seek to "stack" the court with more conservative judges. But unless one of the current justices retires early, the next vacancy won't be until 2013, when Justice Morris Fish turns 75.

A 12-member ad hoc parliamentary committee will be struck this week. Osgoode Hall constitutional specialist Peter Hogg, who advised both the Tories and their Liberal predecessors on the new nominating process, will help direct Monday's proceedings.

Former justice minister Irwin Cotler, who fought against holding public hearings, said he's comfortable with the Tory proposal, largely because the committee will not have a veto.

Harper pointed to the recent confirmations of U.S. Supreme Court Justices John Roberts and Samuel Alito as examples that public hearings need not become a partisan circus.

"I hope it won't degenerate into partisanship. ... There's a fair degree of consensus before this nominee even faces the committee and I would be very surprised if the nominee did anything other than pass in flying colours," Harper said.

In a recent speech to a business audience, Chief Justice Beverley McLachlin cautioned against publicly vetting candidates, and Major said while he doesn't doubt that Monday's process will be decorous, there is little to be gained.

"My problem has always been that in the U.S. it's a charade. The nominees rehearse, they go through mock hearings. ... You then end up with a very close vote, so I wonder what the public thinks about the quality of judge they're getting when half the committee votes against them," he said.

Harper said no questions will be off-limits, but added that Hogg will help parliamentarians determine "the most productive" topics. Cotler and McGrath stressed the prospective nominee shouldn't be questioned about his or her personal moral views because judges rule on the basis of facts and law, not their own beliefs.

CTV News reported last night that the judges on the short list are Federal Court Judge Marshall Rothstein of Winnipeg, Saskatoon's Peter MacKinnon, University of Saskatchewan president and Calgary's Constance Hunt, a judge of Alberta's Court of Appeal.
Yeah, cuz this has worked SO well south of the border.

UGH!

An editorial on the ups and downs of the above:

Prime Minister Stephen Harper seems determined to plunge Canada's Supreme Court into an American-style circus of politicking, by letting Members of Parliament grill nominees before they are confirmed.

And Canadians won't have to wait long for the show to begin. Harper will name a candidate Thursday. Televised hearings take place Monday. And if Harper likes what he hears, he will confirm the person next Wednesday.

This controversial, rushed change to the way the Supreme Court is appointed threatens to undermine an institution that is universally respected for its professionalism, integrity and independence.

The only good thing about Harper's announcement yesterday is that he will fill the vacancy with one of three jurists on a short list prepared by the former Liberal government. He won't look elsewhere specifically for a staunch conservative who shares his views on parliamentary supremacy, judicial activism, gay marriage and other "hot button" issues.

Even so, this new process sets a worrisome precedent. Canadians have been remarkably well served by the existing system. Our judges have been knowledgeable, fair-minded and held in high esteem.

Those like Harper who favour public vetting cite the desirability of more transparency and accountability. But there is a downside to consider.

Chief Justice Beverley McLachlin very properly raised concern in 2003 about any process that appoints judges "in a manner that gives more weight to partisan politics." Just this month she reiterated her plea to "avoid politicizing" a process that has given us a superb judiciary.

The Canadian Bar Association shares that view. "The CBA strongly opposes any system that would publicly expose judges to partisan criticism of their judgments or cross-examination of their personal beliefs or preferences," bar president Brian Tabor warned yesterday.

While Supreme Court justices are appointed by the Prime Minister, it is not on a furtive whim. Moreover, the system has recently been opened up. The PM now chooses from a short list drawn up by the justice minister, who consults with provincial justice ministers and others. And elected MPs have input. An advisory panel that includes MPs, retired judges, lawyers, academics and the public vets the list and can remove names.

"Broad input from parliamentarians is, and should continue to be, available prior to the nomination, not an after-the-fact review," Tabor argues.

That makes sense. In the United States, confirmation hearings for Republican-nominated Robert Bork and Clarence Thomas turned into vicious partisan dogfights when the Democrats balked. We don't need that.

Supreme Court judges are routinely called on to rule on government policy and to strike it down if it offends the Constitution or the law. Having MPs sit in prior judgment on judges invites intimidation.

Would Conservative MPs be tempted to ask where a nominee stands on same-sex marriage? Would Liberals look for support for public health care? Would Bloc MPs float a referendum question? What happens if the judge later has to rule in these areas? Will he or she be compromised?

Rather than expose the bench to all this, Harper should shield it. That's because judges should make their decisions on the basis of existing law, legal arguments and precedents, not politically motivated pressures.

The late, much respected Justice John Sopinka once said he would never have allowed his name to be put forward for the high court if it meant putting his life on public display. It is easy to understand why.