February 20, 2006

Politics: Where's the Bread?

Nice to know the circus is in town.

Prime Minister Plastic Man has decreed that any new Supreme Court Justice appointees shall now be questioned by a 12-person panel composed of the four major parties. The questioning will take three hours total over two seperate sessions, and will have no bearing on whether the judge gets appointed or not.

Actually, he didn't say that last bit in quite that way: he said "I will take account of the committee hearings." But he still reserves the right to appoint whoever he likes, and shoot down any nominee he doesn't, meaning that the examination is nothing but a PR stunt.

There are claims that this makes the process "more open", though how exactly it does that isn't explained. The process that matters is still conducted in the PM's office and no where else, as he is the only person with the power to confirm the seat. Meaning that this is a little bone to toss to whatever special interest or single issue fanatics are out there who are trying to get their knickers in a twist over a particularly galling pause or insulting cough issued by the nominee during the hearing.

And this helps... how, exactly?

I'm still not sure that the massively politicised nomination process down south is one to emulate, but it is Harper's dream to add blue to our bi-chromatic flag, so I guess that this is no surprise. But you have to wonder if having nominees giving their most inoffensive answers is really what you want: the original point of the hearings was to decide whether or not the appointee would uphold the laws of the land, not how well they could avoid their own opinions. That's for lawyers, not judges.

And you do have to wonder how appropriate the questions will be. Let's face it, while most politicos have had some legal training, the appointees have been doing it as their life's work. Isn't this a bit like having people who build model planes grilling an aviation engineer about aircraft design?

Ah, well. The new boy got in with promises of sops to his supporters, so I suppose this is just one of those. I know that's how every new PM gets in, but the Conservatives have been out of power so long that they actually expect what was promised to happen.

Go fig.


posted by Thursday at 11:14 am


Blogger matt said...

Harper's ad hoc procedure just advances Martin's ad hoc procedure by an inch: the nominee and not the Justice Minister answers questions.

Nominees have made a life's work of marshalling their intellects towards communicating the law. A judge at the Supreme Court doesn't "uphold the law of the land" so much as clarify what the law of the land is. Crucial to that process is what the judicial instinct is with respect to gaping holes in the law.

An excellent example is the Harvard Mouse case. No direction on patenting something living. Was it a bona fide machine? This nominee said yes. The majority of a (hugely divided) Supreme Court said that ambiguity ought to be filled by the legislator. Contrast that with Vriend, where the majority of the Court said that *it* ought to fill the void in Alberta's Human Rights statute with respect to homosexuals, given that the province had deliberately left the void (the dissenting Alberta judge, Major, agreed that the void was contra the Charter, but the province ought to have a year to fix the problem, given that the province had held off doing anything owing to the Supreme Court proceedings).

The late Justice Sopinka, for example, had a great reflex to let the legislator step in; not so much the past Chief Justice Lamer.

Those sorts of instincts merit consideration in a public forum, even if there's no formal veto power. Sometimes scrutiny amounts to the same thing.

11:55 am  
Blogger Thursday said...

I am still extermely doubtful as to the usefulness of the questioning: if there is no kind of veto power, what reason does the appointee have for answering anything? The judicial instinct you mention may belong to whoever is best suited to ducking politician's questions than to giving any legal opinions. I wouldn't mind so much if the questioning was done by other judges (I'd prefer experts to enthusiastic amateurs), and I think using a public forum for this only serves as a sop and potential firestarter to any special interest group who feels underrepresented.

Looking at what decisions the judge has made in the past, which is already public record, would be more telling, I think. Not much information was gained at Alito's hearing, and Miers wasn't even going to get to a hearing, never mind get asked a question. ALL opposition to those two nominees was from media groups and individuals based on the nominee's respective pasts.

I'm using the US exapmles here because they are better known.

Thanks for the correction on the purpose of the Supreme Court - you're right, of course, and I should have written it that way.

12:00 am  

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