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.