Cold Hard Wonk

No sentiment but politics

Bad Judgment0

Posted by JJ in Vague Check, Golden Tacks (Tuesday February 28, 2006 at 11:43 pm)

Those who were paying attention during the recent Canadian election campaign might recall a certain warning from its dying days. A Conservative government was expected to use its newfound power to stack the Supreme Court with judges chosen to support its own agenda.

By appointing a judge drawn from the former government’s own shortlist, the new Prime Minister has managed to reveal that warning for what it was: desperate hyperbole. But that’s not to say he’s done well.

The choice is fine. There’s no end of warm endorsements of the man. The problem lies in the process.

As has been widely discussed, Justice Rothstein is now the first supreme court nominee to have faced a committee of Parliamentarians before his appointment. Some (including the Chief Justice) have complained that the process will move Canadians towards a more politicized judiciary (which raises the question of why the Liberals participated), but the hearing itself didn’t really point that way.

For the most part, it added little to the process of appointment, with most questions falling neatly in a range too dull and superficial for legal minds and too dry (why doesn’t the Court give reasons when denying leave?) for most others. In short, innocent. And really, how many interesting stories have been written about undisputed cases of innocence?

No, the problem is precisely that it was innocent. If the addition of hearings is to be worthwhile, it needs to contribute something — and that means better questions. It’s a hard thing to find questions which are neither overly political nor utterly pointless. That’s real work, and it’s work that takes time.

In the U.S., senators have the advantage of large payrolls. They have the manpower to go through past judgments, articles, speeches and other work to figure our what details might be worth looking into.

In Canada, MPs rarely have more than four assistants, of which no more than three will be working in Ottawa. With other work to be done, it’s unlikely that very much time can be devoted to preparing to grill (or lightly toast) potential justices.

Given which, the fact that the committee had less than a week to prepare for the hearing meant that, barring obvious and undesirably political questions, there was little chance of a serious or useful exploration of real issues emerging from the process. Even if a hearing could be a good thing, Harper pulled the gun too quickly to have a useful hearing.

Why? At least one source suggests that Chief Justice McLachlin wanted the Court to be back to full strength in time for its April 10th sittings.

But if, in satisfying that request, the process added little, Harper has hardly managed to make a case (forgive the pun) for future hearings; and there won’t be a chance to try again until 2014.

Are hearings a good idea? Probably. Was this one a case of bad judgment? Definitely