Move over, Judge Judy. Give it up for Meet the Justice, reality TV's latest hopeful.

Canadian history was made Monday as Supreme Court nominee Marshall Rothstein appeared before an ad hoc committee of parliamentarians, televised on four news channels.

It had never been done before, and represents a promise kept by Stephen Harper, who has mused for years about a more open, publicly accountable selection process.

Critics, including the Canadian Bar Association, have expressed fears of partisan, American-style media circuses. Still others have sniffed the "hidden agenda" -- that some conservatives are convinced that the high court is hopelessly liberal and activist, in effect making laws such as same-sex marriage, rather than interpreting existing statutes.

It was different, that's for sure.

Usually, justice ministers are answering questions from MPs over court selections.

Monday, it was newly minted Vic Toews who chaired the hearing -- ad hoc and not subject to parliamentary privilege because the new House isn't sitting yet. The inclusion of a non-parliamentarian, ex-Osgoode Hall law school dean Peter Hogg, was also unprecedented. A champion of this sort of change, Hogg set down the rules in his opening remarks.

The tone was to be civil and respectful, with a prohibition against personal inquisitions or fishing expeditions on how the prospective judge might rule on the contentious issues of the day.

Of course, that's exactly what most of us shallow Canadians would really want to know. But Hogg went to the point of counselling Rothstein that he shouldn't answer any question he found objectionable, and shouldn't feel badly about it.

Amid three hours of general questions, many of them rambling, a couple of pointed queries did pop up, mostly from Conservatives.

Calgary MP Diane Ablonczy wondered about Rothstein's views on the notwithstanding clause and activist courts. Ontario Tory Daryl Kramp seemed to be trolling for a declaration that the courts need to get tougher on violent criminals with mandatory sentencing.

In each case, Rothstein gently demurred, responding with some generalities of his own, recognizing public concern without tipping his hand.

New Democrat Joe Comartin, who loathes the process, allowed that he had difficulty asking any questions at all, since he found the hearing itself so wrongheaded.

Rothstein had already passed a four-stage vetting before Monday, and has nearly 1,000 written opinions on the books.

The latest process included institutional refinements hatched by former Liberal Justice Minister Irwin Cotler, whose participation on the committee added a degree of drama to the proceedings.

The prime minister will announce Rothstein's appointment on Wednesday, and seemingly no one will disagree with the choice, which began with the previous government. Which begs the question, what did we learn from this, and what is the point beyond optics?

Well, we did actually learn a few things. The veteran Winnipeg jurist emerged as a smart, self-effacing mensch, easily stickhandling his way through a series of near-reverential queries. If his judicial temperament and overall legal chops mirror the performance skills he showed Monday, Mr. Justice Rothstein should make an excellent addition to the big bench.

Of course, there are those, including sitting Supreme Court justices, who

worry that that may just be one of the problems with a quickie public hearing. It's a given that many deserving potential judges of competence and experience will lack the charm of a Rothstein.

That said, it was cheering to witness that someone who we trust will make very serious, well-considered decisions also has a quick wit and no evidence of noblesse oblige.

In an oddball way, the televised hearings also shed a pleasant light on John Major, the Albertan that Rothstein will replace. As colour commentator for CBC Newsworld from a Calgary perch, Major was a cantankerous hoot, leaving no doubt that he found the hearing ridiculous. Especially, he had no use for Hogg, who he dismissed as a grandstander and gladhander. Unlike Hogg's glowing closing remarks, Major said the MPs' questions were "not particularly insightful."

And he was right. But as Cotler observed afterwards, the substance of any good show depends on pre-production.

A process that works, where potential high court jurists are subjected to careful scrutiny by professionals, seems to be in place. We have been well-served by this, and recent (and future) improvements will help. As long as this essential, non-partisan approach holds sway, putting a human face on the court

couldn't hurt. If this or any other government tries to subvert a proudly independent judiciary on narrow ideological grounds, they will pay the price.

For now, Stephen Harper's plucky experiment looks OK, along with Marshall Rothstein, who we know a little bit better. We like what we see. Sometimes a bit of optics is just all right.

akellogg@thejournal.canwest.com

Edition: Final

Story Type: Column

Length: 781 words

A Supreme Court nominee has said judges should apply laws rather than make them, as a panel of legislators publicly questioned a judicial candidate for the first time in Canada.

But Marshall Rothstein also noted that judges sometimes must rule on whether a law violates the Charter of Rights and thereby determine public policy to an extent.

Rothstein, who was nominated a week earlier to the Supreme Court of Canada, made a three-hour appearance Monday afternoon before an ad hoc all-party parliamentary committee in Ottawa.

Rothstein - who was appointed to the Federal Court in 1992 by then prime minister Brian Mulroney and elevated to the Federal Court of Appeal by Jean Chrétien - said judges must decide whether laws apply to the Charter but are "not the law unto themselves."

Prime Minister Stephen Harper and other Conservatives have long expressed concern about the power that judges have wielded over public policy since the Charter's creation.

Rothstein, 65, told the parliamentary committee on Monday that judges must tread lightly while dealing with controversial laws. But he also said it was appropriate for them to handle such rulings if they conduct a thorough analysis and respect lawmakers.

"The important thing is that judges, when applying the Charter, have to have recognition that the statute that they're dealing with was passed by a democratically elected legislature ... and therefore they have to approach the matter with some restraint."

- MPs question public scrutiny of judicial appointees -

Another issue that attracted a lot of attention during Monday's session was the process itself. Confirmation hearings for judges are routine in the U.S., but Harper's Tories spurred controversy when they said they would put the judicial nominee in the public hot seat.

Supporters argued it was appropriate to have a more transparent judicial selection process. Critics had expressed fear that the session could become a circus, like some U.S. proceedings that politicians have used to score points over controversial subjects such as abortion.

Despite the concerns, Monday's session remained very civil and none of the MPs questioned the ability of Rothstein.

Some of them criticized the public scrutiny but Rothstein sidestepped their questions by suggesting it might be too soon to assess it.

"I understand the argument that the argument in favour of this process is greater transparency in the judicial process ... and I have no fear in saying that that's a good thing," Rothstein said.

"The fear is that we could degenerate the process into a process that degrades or humiliates the judge, as has been seen sometimes elsewhere."

- Controversial subjects declared off-limits -

The session kicked off with statements by the co-chairs, Justice Minister Vic Toews and former Osgoode Hall Law School dean Peter Hogg, a constitutional expert who is not a member of Parliament.

Rothstein followed with a 20-minute statement, then the MPs were each given time to ask questions.

Rothstein took a pass on controversial subjects such as abortion, same-sex marriage, Quebec separatism and aboriginal rights.

"He cannot express views on issues that could come before the court," Hogg had warned earlier. "For the same reason, he cannot tell you his views on controversial issues such as abortion, same-sex marriage or secession."

- Rothstein praised for 'prolific' judicial writings -

Toews described Rothstein, a well-connected Tory from Manitoba, as a "highly respected" judge who is "prolific" in his output of judicial writing.

Rothstein thanked Harper for selecting him to replace Justice John Major, who retired in December.

He also outlined his vision of a judge's role.

"It goes without saying that judges must be neutral arbitrators in disputes that come before them. They can have no personal agenda and they must be independent."

Rothstein was included on a short list prepared for the former Liberal government by members of the parties in 2005.

The MPs in Monday's session do not have veto power over Rothstein's nomination.

Harper was expected to make a final decision to approve or quash Rothstein's nomination within days.

© 2006 CBC. All Rights Reserved.

Length: 665 words

Harper finds a solution where there was no problem
The Record (Kitchener, Cambridge and Waterloo)
Tue 28 Feb 2006
Page: A11
Section: INSIGHT
Byline: JAMES TRAVERS
Dateline: OTTAWA
Source: TORSTAR NEWS SERVICE

Fixing what isn't broken has obvious appeal: It's easy and the risk of failure is small.

So it's hardly a shocker that today Prime Minister Stephen Harper and his new Conservative administration can claim a modest triumph. For the first time, a parliamentary committee, with the nation presumably watching, reviewed an appointment to the country's highest and most influential court.

It's also no surprise that Marshall Rothstein emerges undiminished -- even enhanced -- as a fine choice. After all, the 65-year old Manitoban's qualifications for the job were never in doubt.

Rothstein topped a shortlist of three eminently qualified judges vetted through the four-phase system introduced by the late Liberal government. Peers, legal experts and a panel that included politicians narrowed the field until the choice became so self-evident that a different election outcome wouldn't have put a different judge on the top bench.

That's as it should be and as it has been. While the scrutiny of nominees has evolved, prime ministers have consistently selected judges who are always good and often the best.

It's that record that makes yesterday's political theatre so intriguing. Rather than reforming a discredited procedure, this hastily constructed committee's task was to infuse new credibility into a proven process.

After campaigning for more government transparency and accountability, adding openness offers obvious benefits for a new prime minister. Harper nearly seizes credit for improving an appointment process that wasn't doing any harm.

In that sense, the committee played its role. With no veto power and with only the prohibitive favourite making an appearance, its members were effectively limited to pushing Rothstein into full public view.

But below a modest modification are more troubling philosophical differences that didn't take long to surface. Even before Rothstein could present his own nicely self-deprecating resume or the first question could be asked, yesterday's matinee ran headlong into a predictable and germane concern.

In commendably clear language, Osgoode Hall professor Peter Hogg warned the committee against straying into personal beliefs or examining historical and hypothetical cases. What Hogg said and members only occasionally failed to hear is that fitness for Supreme Court service is measured by expertise, not personal opinions.

Hogg's cautionary comments, coupled with Rothstein's own finely-balanced views of the relationship between courts and legislatures, pretty well sucked the drama out of a highly anticipated moment.

Instead of an intrusive, U.S.-style exploration of, say, Rothstein's attitude toward same-sex marriage, abortion or gun control, the nearly four- hour session became a cautious oh-so Canadian exercise in decorum.

With controversial questions wisely ruled inappropriate, committee members often seemed at a loss over what to ask. Apart from exposing a sharp mind and wit, their cumulative queries only confirmed what was already known: Rothstein has the skills, experience and intellectual capacity to serve on a court where distinction is the norm.

Far less certain is the final destination of a process begun in controversy. As Rothstein noted with characteristic thoughtful ambiguity, openness in judicial appointments is a fine thing, politicizing them is not.

So far, the dividing line between the two is Rothstein himself. His willingness to participate is an explicit endorsement of a process that is no immediate threat to judicial independence. But without specifically mentioning the U.S., he also cautioned against letting it degenerate into the partisan or philosophical brawls that degrade or humiliate judges.

Written plainly between the lines of that warning is the concern that judges of Rothstein's stature would withdraw rather than face similar scrutiny here. What he didn't say, but what's equally true, is that there's no need to import Washington's raucous confirmations.

Unlike the problems U.S. judges face interpreting a more than 200-year-old constitution, the Canadian Supreme Court's most contentious decisions deal with the 1982 Charter of Rights and Freedoms. While not written in stone, its social, cultural and political context is recent and clear enough to maximize law and minimize values.

Even so, there remains a nagging worry that what the country witnessed yesterday is rooted more in Conservative concerns about judicial activism than in a genuine effort to add transparency to appointments. If that's the case -- and both Harper and Justice Minister Vic Toews fret publicly about judges who rewrite laws rather than apply them -- then the issue remains muddy.

Except when confirming the division of judicial and legislative powers, Rothstein provided grey nuance, not the black-and-white clarity social Conservatives find comforting. As sensitive as judges must be to the intent of democratically elected bodies, they must also apply rigorous analysis to the law.

Parse through Rothstein's carefully chosen phrases and find a parallel with Harper's historic hearing. A soon-to-be confirmed judge shares with a recently elected prime minister an appreciation of the benefits of fixing what isn't broken.

James Travers covers national issues.

© 2006 Torstar Corporation

Edition: Final

Story Type: COLUMN

Length: 793 words

After watching members of Parliament publicly question a Supreme Court nominee yesterday, members of Canada's legal community, who remain divided over open hearings, agreed it did provide Canadians with their first chance to peer into a judge's psyche.

"We thought the process demystified ... the appointee to the court. It was a very disciplined environment," said Brian Tabor, president of the Canadian Bar Association, which opposes the public hearings.

Justice Marshall Rothstein became the first Supreme Court nominee to be questioned at a public hearing, although the final say on his appointment remains with Prime Minister Stephen Harper.

"I think it was a kind of public job interview. I think it gave us an opportunity to see a little bit about Justice Rothstein. I think it was a very successful first step in this kind of process," said Patrick Monahan, dean of Osgoode Hall Law School. He is in favour of the new public hearing system for Supreme Court nominees.

But despite any advantages, bringing the appointment process into the public arena sets a dangerous precedent that will inevitably degenerate into political warfare, said retired Supreme Court justice John Major.

"This is going to become political eventually," Mr. Major said yesterday.

Mr. Major said the polite, civilized manner that dominated Judge Rothstein's hearing, at which many controversial topics weren't addressed in depth, will eventually give way to a highly politicized debate.

The Canadian Bar Association agrees. Letting MPs grill a Supreme Court nominee blurs the lines between the government's judicial and political branches, Mr. Tabor said.

"We are concerned with the optics, the perception that we have created. It creates the impression that justices are somehow beholden or accountable to parliamentarians," he said.

However, Mr. Monahan said exposing part of the Supreme Court selection process to the public provides an important check on the power of the prime minister.

"It brings a discipline to the process," he said, since the prime minister will know his nominee will have to answer MPs' questions. "I think it imposes a check on the direction of a prime minister in who he's going to select," he said.

Mr. Major said it doesn't seem to make sense that judges should be put before a public committee while other high-profile appointments, such as the governor general, still happen behind closed doors.

"It's a funny thing. We trust the government to take us to war, to do a lot of things, and then it comes to judges and they make such a production out of this, as though people are really interested."

Edition: Final
Story Type: News
Note: Supreme Court Nomination
Length: 425 words

Law community worries hearings will get political

The StarPhoenix (Saskatoon)

Tue 28 Feb 2006

Page: B6

Section: National

Byline: Carly Weeks

Dateline: OTTAWA

Source: CanWest News Service

OTTAWA -- After watching members of Parliament publicly question on Monday a Supreme Court nominee, members of Canada's law community, who remain divided over open hearings, agreed it did provide Canadians with their first chance to peer into a judge's psyche.

"We thought the process demystified the appointee to the court. It was a very disciplined environment," said Brian Tabor, president of the Canadian Bar Association, which opposes the public hearings.

Justice Marshall Rothstein became the first Supreme Court nominee to be questioned at a public hearing on Monday.

Prime Minister Stephen Harper, however, still has the final say on whether Rothstein will be Canada's next Supreme Court judge.

"I think it was a kind of public job interview. I think it gave us an opportunity to see a little bit about Justice Rothstein. I think it was a very successful first step in this kind of process," said Patrick Monahan, dean of Osgoode Hall Law School. He is in favour of the new public hearing system for Supreme Court nominees.

But despite any advantages, bringing the appointment process into the public arena sets a dangerous precedent that will inevitably degenerate into political warfare, said retired justice John Major.

"This is going to become political eventually," Major said Monday.

Rothstein is expected to fill the vacancy left by Major, who retired in December.

Major said the polite, civilized manner that dominated Rothstein's hearing, where many controversial topics weren't addressed in-depth, will eventually give way to a highly politicized debate.

The Canadian Bar Association agrees.

Letting MPs grill a Supreme Court nominee dangerously blurs the lines between the government's judicial and political branches, Tabor said.

"We are concerned with the optics, the perception that we have created. It creates the impression that justices are somehow beholden or accountable to parliamentarians," he said. "I think (Canadians) did have an opportunity to meet the new justice, but we think this opportunity should happen post-appointment."

However, exposing part of the Supreme Court-selection process to the public provides an important check on the power of the prime minister when choosing a judge, Monahan said.

"It brings a discipline to the process," he said.

"The general impact it's going to have is it's going to discipline a prime minister because he or she is going to know this nominee is going to have to come in a public hearing and answer questions and I think it imposes a check on the direction of a prime minister in who he's going to select."

Major said it doesn't seem to make sense that judges should be put before a public committee while other high-profile appointments, such as the Governor General, still happen behind closed doors.

"It's a funny thing. We trust the government to take us to war, to do a lot of things, and then it comes to judges and they make such a production out of this, as though people are really interested."

Illustration:

• Photo: Canadian Press / Supreme Court nominee Marshall Rothstein (left) appears alongside his lawyer Peter Hogg

Edition: Final
Story Type: News
Length: 487 words




High court contender faces the nation on TV: Legal expert lays out ground rules for questioning
The StarPhoenix (Saskatoon)
Mon 27 Feb 2006
Page: A7
Section: National
Byline: Janice Tibbetts
Dateline: OTTAWA
Source: CanWest News Service

OTTAWA -- Dubbed the Meet the Judge show, Canadians will get their first chance today to see federal politicians publicly question a Supreme Court of Canada contender on television.

Toronto legal expert Peter Hogg -- whom Prime Minister Stephen Harper has tasked to preside over the event -- is expected to keep MPs on a tight leash by unveiling a protocol that would prevent the hearing from degenerating into a political free-for-all.

Forget quizzing Justice Marshall Rothstein, 65, about his personal life. Queries into his positions on controversial issues like abortion and same-sex marriage also will be out of bounds. And don't expect the judge to get into hypothetical questions or even specifics about past rulings.

The 12 MPs who will ask questions in the hearing will be instructed to tread gingerly and the hearing is expected to be a far cry from the often partisan displays during U.S. confirmation hearings.

Rather, the committee of federal politicians could have a hard time even filling three hours of TV.

"If the questions that are asked are limited to those that should be asked, it's not going to be very interesting at all," predicted Joe Comartin, the NDP committee member.

Comartin opposes publicly questioning a judge and he is threatening to boycott the hearing unless members agree in advance to a list of questions that will be banned, regardless of Hogg's instructions.

Comartin said he was inspired to lobby for a no-go list of questions after reading that committee member Real Menard, of the Bloc Quebecois, suggested he would quiz Rothstein on whether he supports assisted suicide. The Bloc has been lobbying for changes to the federal ban.

At a pre-hearing meeting this morning, Comartin will seek to limit questioning to such areas as Rothstein's skills, professional background, and ability to write clear and reasoned rulings.

Harper initiated the historic televised hearing to bring more transparency to the secretive Supreme Court appointment process. The committee, however, has no veto power over the prime minister's nominee, which Harper is expected to confirm Wednesday.

Rothstein, a 65-year-old Federal Court of Appeal judge, was nominated by Harper last week to fill a vacancy left by the December retirement of John Major.

Patrick Monahan, dean of York University Osgoode Hall Law School, said Hogg, the former dean, should feel free to intervene if MPs stray from a general line of questioning confined to such queries as how Rothstein views the role of the Supreme Court and the Charter of Rights and Freedoms.

"Dean Hogg and I have advocated the concept of a protocol whereby you would set certain kinds of questions that are appropriate and others that are not," Monahan said.

"Questions about the judge's personal views on social issues are not really appropriate. This is really an inquiry into the judge's conception of his role as a judge."

One question that is expected to be raised without opposition will be whether Rothstein considers his inability to speak French a hindrance. He would be the only judge on the Supreme Court who is not bilingual.

Many Supreme Court hearings originating from Quebec are conducted in French and materials are also filed with the court in an applicant's language of choice.

The court provides translation services, but language and legal purists say that falls short of hearing arguments in an applicant's mother tongue.

The committee member who has the most aggressive track record of judge bashing is Justice Minister Vic Toews, who recommended Rothstein to Harper and will tell committee members that he strongly endorses the nomination.

Toews, who will chair the hearing, will deliver "a very broad opening statement" explaining how and why Rothstein was chosen, said spokesperson Patrick Charette.

Toews, who has been extremely critical of the Supreme Court, will not ask Rothstein any questions.

By all accounts, Rothstein is expected to sail through the hearing with ease and his supporters predict he will be the most prepared person in the room, in keeping with an unblemished record of leaving no stone unturned.

"No matter what he does, he is always so well prepared," said Winnipeg lawyer Cy Fien, a former colleague of Rothstein. "He's intellectual and honest and I think he will deal with the questions in a straight-forward manner. He's tremendously respectful."

Illustration:

• Photo: CanWest News / Supreme Court of Canada contender Justice Marshall Rothstein, faces questions from MPs today

Edition: Final

Story Type: News

Length: 709 words

HARPER'S CHOICE LAUDED
The Edmonton Sun
Fri 24 Feb 2006
Page: 32
Section: News
Byline: BY BILL RODGERS, SUN OTTAWA BUREAU

Prime Minister Stephen Harper's choice to fill a vacancy on the country's highest court received high praise from the Canadian legal community yesterday.

Manitoba's Marshall Rothstein, who has sat on the Federal Court for 14 years, will appear before an all-party committee of MPs next Monday for an unprecedented review of his credentials for the job. The committee does not have the power to reject the appointment, which Harper made from a short list drawn up for the previous Liberal government.

"I think this (choice) will be universally applauded, certainly by the legal community, and I think it's a very strong appointment," said Patrick Monahan, dean of Osgoode Hall Law School.

Rothstein, 65, was appointed to the trial division of the Federal Court in 1992 by then-PM Brian Mulroney and was elevated to the appeal division seven years ago by Jean Chretien.

Monahan played down concerns the new public review process will create a more politicized high court, saying unlike the U.S. system, appointments in Canada are seldom made to balance or shift the court in a particular direction.

"First of all, our court is unanimous in 70% of its cases," Monahan noted. "That's a fact that's not often known, whereas the United States Supreme Court is unanimous only in about 40% to 45% of cases. So our court is a much more collegial court. You don't have these five-to-four splits that often."

Opposition Leader Bill Graham called Rothstein a "superior jurist" and commended the PM for picking from the pool of candidates drafted by former justice minister Irwin Cotler.

Graham said Liberal MPs will participate in the public hearing on Monday, but will do so in a "respectful" manner that won't compromise the integrity of the judicial system.

Canadian Bar Association president Brian Tabor said the CBA fears public hearings will leave the wrong impression among Canadians.

"The concern is that the perception becomes the reality in Canadians minds that somehow this is a politicized process, when really the goal of government is to reinforce and restore public confidence in the legal system ... and ensure that the judiciary is an independent judiciary," Tabor said.

© 2006 Sun Media Corporation. All rights reserved.




Rothstein seen as top court pick
Winnipeg-born jurist served on federal bench for 14 years
Touted as Harper's likely choice for Supreme Court opening
Feb. 23, 2006
SEAN GORDON
OTTAWA BUREAU

OTTAWA - Prime Minister Stephen Harper announces his first Supreme Court nominee today and all indications point to Winnipeg-born Federal Court of Appeal Justice Marshall Rothstein as his choice.

Talk of Rothstein's impending elevation to the country's top court was rampant in legal and political communities.

The 65-year-old jurist, on the federal bench for 14 years, is seen as a top candidate with impeccable judicial credentials.

"He's the guy, I don't think there's any doubt about it," said a source close to the selection process.

Rothstein would replace John Major, who retired late last year at 75, the mandatory retirement age for Supreme Court judges.

Harper could still opt for other short-listed candidates: Peter MacKinnon, president of the University of Saskatchewan and a former law school dean, or Alberta Court of Appeal Justice Constance Hunt.

But either choice would be a shock at this stage.

The nominee will face questioning from a panel of MPs on Monday, a first for the Supreme Court of Canada.

But many legal observers say those looking for U.S.-style confrontation or partisan grandstanding will be disappointed.

"I think it will be more akin to a structured job interview ... it's probably going to be a very constructive session. I really don't expect any fireworks," said Patrick Monahan, dean of Osgoode Hall law school.

The ad hoc 12-member panel will include NDP justice critic Joe Comartin, his Bloc Québécois counterpart Réal Ménard, Tory Justice Minister Vic Toews and his Liberal predecessor Irwin Cotler. Officials in all four parties said they expect the proceedings to remain civilized.

The session will be directed by constitutional expert and former Osgoode Hall dean Peter Hogg, and Monahan said questions will primarily focus on Rothstein's vision of what it means to be a judge.

"I suspect they'll want to talk about his judicial philosophy, his approach to the Charter (of Rights and Freedoms), how he sees the question of balancing rights against the collective interest," said Monahan, adding Rothstein would bring "sterling silver credentials to the table."

While Harper said this week no questions would be off-limits, queries on Rothstein's personal opinions on issues such as same-sex marriage and abortion are likely out of bounds.

Nor will the committee likely have much luck getting Rothstein to explain or justify past rulings. Monahan said legal tradition holds that "a judgment stands by what it says."

The process of submitting Supreme Court nominees to public scrutiny has prompted objections from many legalists and from the Canadian Bar Association, which said the practice risks imperilling the independence of the court.

Major questioned the usefulness of the idea in an interview this week, and his former bench mate — retired justice Claire l'Heureux-Dubé — wrote in a Montreal newspaper that the hearing is simply "a put-on to respect campaign promises."

Others have said the fact the short list leaked out threatens the integrity of the process.

While the mechanics of selecting an appointee are the subject of heated debate, Rothstein's bona fides for the job are not.

Educated at the University of Manitoba and trained as a commercial lawyer, Rothstein later taught transportation law at his alma mater.

He has lived in Ottawa since being appointed to the Federal Court in 1992, but would be considered the court's Prairie representative. (Convention holds the next nominee must come from Saskatchewan, Alberta or Manitoba.)

Rothstein is highly regarded for his incisive judgments and is an expert in the intricacies of intellectual property law.




A very judicious process
Requiring Supreme Court nominees to appear before a parliamentary committee shines a much needed spotlight, says law dean PATRICK MONAHAN
The Globe and Mail, Page 21, February 22, 2006

Prime Minister Stephen Harper's decision to require his nominee for the vacant seat on the Supreme Court of Canada to appear before an ad hoc committee of MPs represents an important step toward greater transparency and accountability in the appointments process.

First, both the current and the previous government have recognized the need for some form of prior parliamentary review of appointments to the Supreme Court. Given the enormous power wielded by members of the court in the Charter of Rights era, the traditional appointment process -- which essentially vested unreviewable power in the hands of a single individual, the prime minister -- is widely seen as being inconsistent with basic democratic norms.

The more difficult question was how to design an appointment process that would involve MPs in a meaningful way without compromising the independence of the Supreme Court or diminishing the high quality of appointments.

Former attorney-general Irwin Cotler had created an independent advisory committee that recommended a short list of three names for final selection by the prime minister. After the appointment was made, the minister of justice (but not the nominee) would appear before a parliamentary committee to explain the basis for the selection.

While a significant improvement, these changes did not go far enough.

First, there was still no opportunity provided to review a potential candidate's qualifications in advance of the actual appointment. Under the revised approach announced this week, the nominee will be publicly identified in advance of his or her actual appointment, thereby creating a space within which debate and deliberation over his or her qualifications can take place.

The significance of this change is illustrated by the debate over President George W. Bush's nomination of Harriet Myers to the U.S. Supreme Court last fall. Her nomination led to an intense public debate over her credentials, a debate that eventually led to the withdrawal of her nomination before the Senate hearings even began.

Second, requiring the nominee to appear before an independent committee will provide an important opportunity to understand the nominee's background, qualities and suitability for appointment to the country's highest court.

What of the fear that the public hearings will descend into an American-style partisan circus, the prospect of which will either deter suitable candidates from allowing their names to stand or taint any nominees who do stand and are eventually appointed?

Two points are worth remembering. First, the acrimonious confirmation hearings involving Robert Bork and Clarence Thomas are really the exception rather than the rule in the United States. The vast majority of U.S. Senate confirmation hearings during the past 60 years have been characterized by a high degree of consensus, with presidential nominees having been confirmed in the vast majority of cases. Second, the Canadian hearings process will be quite different from that in the United States. Here, the parliamentary committee will serve an advisory function only, with no veto power over the nominee (unlike in the case of the U.S. Senate, which must confirm the nominee for that person to take office).

The advisory character of the Canadian committee will lower the temperature in the hearing room quite dramatically. Given the fact the committee cannot veto the appointment, it is unlikely interest groups and political organizations will invest the huge sums of money and resources that are devoted to the U.S. confirmation process.

Also, the committee members will not have the same incentive to seek to embarrass a nominee for political or partisan reasons, given that a qualified nominee will very likely be appointed by the prime minister anyway.

In effect, the hearings will be more akin to a structured job interview, rather than an occasion for political grandstanding.

There are also safeguards that ought to be put in place to ensure that the process does not go awry:

In future, the review committee should be composed not only of MPs, but also of other experts or knowledgeable individuals of integrity and commitment to the independence of the judiciary. This will further counteract any tendency by politicians on the review committee to engage in partisan bickering or character assassination.

A review protocol should be prepared, which would be a document that would govern the proceedings of the review committee. The protocol would establish limits on the kinds of questions that could be asked of the nominee. For example, the protocol would clearly indicate that any attempt to question candidates as to the manner in which they will decide future cases is inappropriate and unacceptable.

The review protocol would also set out the criteria that are to be used by the attorney-general and prime minister in their selection of the nominee. These criteria would include reference to personal qualities such as the highest level of proficiency in the law, superior analytical and written skills, proven ability to listen and open-mindedness, and soundness of judgment.

It must be understood that the review committee's role is to assess the application of these criteria by the government, rather than for the committee to write its own criteria. In short, the purpose is to bring transparency to the appointment process, but recognize that the responsibility for making the appointment remains that of the government. For this reason, the committee should hear from the minister of justice as well as from the government's nominee.

A public hearing process designed with these kinds of safeguards would bring greater accountability and transparency to the appointments process, while protecting the independence of the judiciary.

While there will be some initial hesitation in the first few cases, once the process has operated successfully, I believe it will come to be widely regarded as quite appropriate. And, in the process, the legitimacy of the Supreme Court and of the Constitution in the eyes of ordinary Canadians will have been strengthened.

Patrick J. Monahan is dean of Osgoode Hall Law School at York University.





Grilling judges for the Supreme Court
CanWest Global Transcripts
Mon 20 Feb 2006
Byline:
Source:
Time: 18:30:00 ET
Network: GLOBAL

KEVIN NEWMAN: Welcome back. When they were in opposition, the Harper Conservatives often took aim at the Supreme Court, saying it was creating law on issues such as same-sex marriage, not simply interpreting it. Well now the new Prime Minister has the chance to set his own tone by announcing his first appointment to the court this week. But how different will it be? Here's Ben O'Hara-Byrne.

BEN O'HARA-BYRNE (Reporter): It's just a short walk from the Supreme Court to Parliament Hill, but for more than a century justices who sit here have avoided the very public personal scrutiny that is the hallmark of politics. Not any more.

STEPHEN HARPER (Conservative Leader): The public, through their elected representatives, deserves to know who sits on the courts.

O'HARA-BYRNE: So for the first time in Canadian history, before taking a seat on Canada's highest court, the nominee the Conservatives named Thursday will next Monday take the hot seat on Parliament Hill. And with cameras rolling, they will spend three hours taking questions from an all party group of 12 MPs. A constitutional expert will guide the process, but there will be no barriers on the kinds of questions that can be asked. For some, it's a welcome window into a previously dark room.

PATRICK MONAHAN (Osgoode Hall Law School Dean): There are going to be questions raised about the backgrounds of these justices. Isn't it better to have those raised before they're actually appointed?

O'HARA-BYRNE: But others argue this could one day make our court more vulnerable to shifts in the political sands. In other words, our nomination process would become more like the one we see in the United States.

ED RATUSHNY (Supreme Court Expert): There will be pressures, as there will be future decisions that the government doesn't agree with of the court that will fire up members of the caucus and want them to go after future appointees.

UNIDENTIFIED WOMAN: You clearly stated that you believed Roe should be overturned.

O'HARA-BYRNE: In the US, a nominee's past is laid bear, and philosophical leanings picked apart during days of Senate hearings. But unlike the US Senate, the Canadian committee will not have veto power. The MPs will not even vote. Now the nominee will be chosen from a list of three approved by all major parties in November. Still, Stephen Harper will be watching and he will have the final word. But he offers some American sounding advice to anyone who wants to sit on Canada's Supreme Court.

HARPER: In my view, when someone is a judge, they're prepared to apply the law, rather than make it.

O'HARA-BYRNE: And that, more than any public hearings, may show the political sands are already shifting in Canada's highest court. In Ottawa, this is Global National's Ben O'Hara-Byrne reporting.

Supreme Court nominee to be grilled by MPs
CTV News and Current Affairs
Mon 20 Feb 2006
Byline:
Source:
Time: 23:00:00 ET
Network: CTV

LLOYD ROBERTSON: In the coming days, Canadians will witness something that's never happened in the 135 year history of the Supreme Court of Canada. A nominee to the high court being grilled by members of parliament. Prime Minister Stephen Harper announced the new ground rules today, adding he will name his choice this week with televised hearings to follow. And CTV's Rosemary Thompson has learned who's on that short list.

ROSEMARY THOMPSON (Reporter): Canada's next Supreme Court Justice will face a nationally televised job interview. Stephen Harper's nominee will have to answer three hours of questions from a parliamentary committee on Monday.

STEPHEN HARPER (Prime Minister): I think it's reasonable in this day and age, given all of the power that resides in Supreme Court justices, that prior to their announcement Canadians would have an opportunity to know them better.

THOMPSON: CTV News has learned who the three people are on Harper's short list. They are Winnipeg's Marshall Rothstein, a judge of the federal court of Canada; Saskatoon's Peter MacKinnon, the president of the University of Saskatchewan; and Calgary's Constance Hunt, a judge of Alberta's Court of Appeal. Their names were on Irwin Cotler's desk when the government fell last November.

IRWIN COTLER (Former Liberal Justice Minister): Any one of the three will be a credit to the court and will continue the tradition of excellence for which the court has become known not only domestically and internationally.

THOMPSON: Some critics fear Canada may be heading for a US-style nomination process, citing the case of Justice Clarence Thomas whose private life was pulled apart during Senate confirmation hearings.

CLARENCE THOMAS: I will not provide the rope for my own lynching or for further humiliation.

THOMPSON: Legal experts don't want a free-for-all.

CRAIG FORCESE (University of Ottawa Law Professor): It would encourage MPs to be shock jocks rather than give careful contemplation to whether a person is qualified to be a judge.

THOMPSON: Others welcome a public hearing.

PATRICK MONAHAN (Dean, Osgoode Hall Law School): Well Supreme Court judges are amongst the most powerful public officials that we have in this country. They're more powerful than most cabinet ministers, and up until this week we've had absolutely no opportunity to scrutinize their records, their philosophies.

THOMPSON: The television drama will unfold on Monday. But unlike the United States, Canadian MPs can only question the nominees, not reject them. The final decision rests with the Prime Minister, as it always has. Rosemary Thompson, CTV News, Ottawa.

© 2006 CTV Television Inc. All Rights Reserved.

Judicial Uneasiness; Public hearings on Supreme Court appointment provoke comparisons to U.S. system
Hamilton Spectator
Tue 21 Feb 2006
Page: A11
Section: Canada/World
Byline: SEAN GORDON, With files from Rob Ferguson
Dateline: OTTAWA
Source: Toronto Star

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, and now usually result in votes along party lines.

However, that is unlikely to happen in Canada this time. 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 sub-committee, 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 mandatory retirement age of 75 last 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 that 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 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 that there is "an inherent good" in having 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 that 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 who avoid being "inventive" in their rulings.

Past comments on judicial behaviour 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.

The 12-member ad hoc Parliamentary committee will be struck this week and on Monday it will hold its hearings.

Osgoode Hall constitutional specialist Peter Hogg, who advised both the Tories and their Liberal predecessors on the new nominating process, will help direct the proceedings.

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

"I'm very satisfied about the public input into a merit-based process that will protect the independence and integrity of the judiciary," said Cotler, calling Harper's plan "an add-on" to the reforms he instituted.

Harper insisted that public hearings need not become a partisan circus, noting: "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."

Cotler and McGrath both stressed that, in order for judicial independence to be preserved, 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.

© 2006 Torstar Corporation

Illustration:

• Photo: Hamilton Spectator File Photo / PM Stephen Harper will have final say on the appointment of the Supreme Court justice.

Harper unveils plan for MPs to question Supreme Court nominee
CanWest News Service
Tue 21 Feb 2006
Byline: Janice Tibbetts and Paul Samyn, Compiled by Kirsten Smith
Dateline: OTTAWA
Source: CanWest News Service

OTTAWA - The next Supreme Court of Canada judge will be subjected to a historic, televised hearing next week in which politicians will be able to grill the contender on anything from personal views to past rulings.

Prime Minister Stephen Harper will announce his selected candidate on Thursday from a short-list of three names, which insiders confirm are Marshall Rothstein, of the Federal Court of Appeal; Constance Hunt, of the Alberta Court of Appeal and Peter MacKinnon, president of University of Saskatchewan.

It will be the first time in Canadian history a candidate will face a public hearing before ascending to the bench and the new process has sparked fears it will degenerate into a U.S.-style political circus.

``The Supreme Court is a vital institution that belongs to all Canadians and the public, through their elected representatives, deserves to know who sits on the court,'' Harper told reporters.

The three-hour hearing will take place next Monday and there will be no questions off limits, he said, adding he is counting on the ``professional restraint'' of Parliamentarians to avoid getting too personal or out of line.

The unprecedented hearing will be led by Peter Hogg, a constitutional expert and former dean of York University's Osgoode Hall Law School in Toronto, who will advise Parliamentarians on the type of questions that will be the most productive, Harper added.

The committee members will be selected by the Conservatives and include representatives from all four political parties.

Unlike the U.S. process, the federal committee will have no veto power because the Canadian Constitution dictates the prime minister makes the final decision.

The short-list of three names was crafted last fall by an advisory panel of politicians, legal experts and community activists, established by the former Liberal government in an effort to include public input in a process that has been condemned for being too secretive.

Former justice minister Irwin Cotler, after private consultations, had given the committee a list of six names to narrow down.

By convention, the judge will come from the Prairies, to replace Justice John Major of Alberta, who retired in December, two months short of the mandatory retirement age of 75.

Harper, a fierce critic of judges whom he says are too ``activist'' in striking down the laws of elected legislators, said he is confident his chosen candidate understands the ``judicial temperament'' of restraint.

``Judicial temperament means in my view that when someone's a judge, they're prepared to apply the law rather than make it and that they apply it in a way that uses common sense and discretion without being inventive,'' he said.

The trio on the short list, which was revealed to the Winnipeg Free Press, gives Harper the choice of Rothstein, a 65-year-old Manitoban who has been a Federal Court judge for 14 years; MacKinnon, a 58-year-old former law school dean who has no bench experience; and Hunt, a 56-year-old former law dean at University of Calgary with 15 years experience on the Alberta courts.

Only Harper's final choice will appear at the hearing and he indicated Monday there is little chance he will change his mind as a result of the committee hearing.

The Canadian Bar Association denounced the pending hearing saying it will accomplish little in terms of shedding light on the potential appointee, but at the same time taint the candidate with a political brush.

``We're really concerned,'' said Susan McGrath, past president of the organization, representing Canada's lawyers. ``It will appear that the appointments are partisan and that politicians are in control.''

Moreover, questioning judges about their past rulings with be a disaster because it breaks the sacred tenet that judgments speak for themselves, said McGrath.

She predicted judges will refuse to answer questions about their decision because speaking out could create confusion and takes away certainty about decisions that are final.

Patrick Monahan, dean of law at Osgoode Hall, however, lauded the Conservative plan for adding transparency to a system that has been maligned for its secrecy.

``The fact that the hearing has to take place operates as a kind of check on the prime minister,'' said Monahan. As an example, he cited the case of Harriet Miers, a U.S. Supreme Court contender who withdrew her candidacy last year amid public scrutiny of her qualifications.

Monahan said he has no fear the hearings will get too personal because he doubts judges would answer questions about their personal views because they are irrelevant to the job of judging.

``I think the point is to ask about their general approach and their judicial temperament and their openness to different ideas,'' said Monahan. ``If all of their judgments reflect a certain approach, the question is whether they are open to different approaches.''

Cotler, whose party considered public hearings but backed away for fear they could descend into a free-for-all, stressed judges should not be asked about their position on controversial issues that could potentially reach the Supreme Court because it would appear they are pre-judging the outcome.

Harper's decision to pick a judge from the Liberal list means he could be losing his only chance to put their stamp on the highest court in the country, which decides issues that will affect Canadians for decades to come.

The current bench is relatively young and, barring any unforeseen departures, the next mandatory retirement is not scheduled until November 2013, when Justice Morris Fish must step down at age 75.

The controversial idea of a public hearing has been hotly debated in legal and political circles for years.

Canada's chief justice, Beverley McLachlin, recently waded into the debate to warn against politicizing the high court.

Major, who now works for a Calgary law firm, said in a recent interview that allowing politicians to publicly question Supreme Court contenders would inevitably ``deteriorate into political warfare.''

The Canadian tradition over the last several decades has been to make non-partisan appointments to the court, drawing respected judges who mainly sit on provincial appeal courts.

CanWest News Service/Winnipeg Free Press

Three contenders for the vacant Supreme Court seat.

- Justice Marshall Rothstein was born on Christmas Day 1940 in Winnipeg. He studied at the University of Manitoba and graduated with a law degree in 1966. He was admitted to the Manitoba bar that same year. He worked for the firm of Aikins, MacAulay and Thorvaldson and taught law at the University of Manitoba from 1970 to 1992. His area of expertise is transport law, commercial and labour arbitrations and administrative law and litigation. He has served as a member of the Canadian Human Rights Tribunal and chaired a Manitoba commission on compulsory retirement. In 1992 he was appointed to the Federal Court trial division. He has also served on the Competition Tribunal and the Martial Appeal Court. He has been with the Federal Court of Appeal since 1999.

- Peter MacKinnon was born in eastern Canada but has lived in Saskatoon for more than 30 years. After graduating from Dalhousie University, Queen's and then finally the University of Saskatoon with an LL.M he began teaching at the U of S law school in 1975. He was called to the Ontario bar in 1975 and to the Law Society of Saskatchewan four years later. MacKinnon, 58, has been a full professor at the University of Saskatchewan since 1983, and from 1988 to 1998 he was Dean of Law. In 1999 he was appointed president of the university. Mackinnon has also been active in the Association of Law Teachers and the Association of Law Deans. Mackinnon's teaching focus has been criminal law and evidence.He has written numerous articles and commentaries in the legal literature as well as authoring three books, After Meech (1991); Drawing Boundaries: Legislatures, Courts and Electoral Values (1992); and Citizenship, Diversity and Pluralism (1999).

- Constance Hunt was born in Yorkton, Sask. in January 1950. She graduated from the University of Saskatchewan in 1972 and from Harvard in 1976 with her LL. M. Prior to being appointed to the bench she was counsel for Mobil Oil Canada, executive director of the Canadian Institute of Resources Law, counsel for the Inuit Tapirisat of Canada and a law professor at the University of Calgary. In that capacity she rose to dean of law. She was appointed to the Court of Queen's Bench in 1991, appointed to the Alberta Court of Appeal in 1995 and in 1999 appointed to the Nunavut Court of Appeal.

Clarence Thomas a cautionary tale as Harper requires hearings for top judges
CP Wire
Mon 20 Feb 2006
Section: National general news
Byline: BY SUE BAILEY
Source:

OTTAWA (CP) _ The name Clarence Thomas still evokes powerful images of what can go wrong when politics and justice mix.

His story is a cautionary tale as Prime Minister Stephen Harper reshapes the way top judges are chosen _ starting with a first-ever televised hearing planned Feb. 27 for a nominee to be announced Thursday.

Thomas was a candidate to sit on the U.S. Supreme Court when his 1991 Senate confirmation hearing descended into a partisan circus carried on national TV.

Thomas withstood days of grilling by the Democrat-controlled Senate judiciary committee, which challenged his conservative views on civil rights and pressed him to declare his stance on abortion.

Unlike MPs in Canada, U.S. senators can veto the president's choice when it comes to the most powerful judges.

As Thomas fielded a range of partisan-fuelled queries, professor Anita Hill, a last-minute witness, accused him of sexual misconduct. She had worked for Thomas 10 years earlier.

Live coverage of the resulting barrage of denials and counter-claims pre-empted soap operas and drew huge audiences.

Hill's claims were never proven and Thomas was narrowly confirmed to sit on America's highest court.

Harper expressed some concern Monday as he announced plans to allow MPs to publicly question the next Supreme Court nominee. The successful candidate will replace the retired Justice John Major on the nine-member court.

``The Clarence Thomas experience, I think, was extreme,'' Harper said.

Still, the Conservatives are moving slowly to revamp the judicial selection process in part because they want to avoid ``excessive partisanship,'' he added.

Peter Hogg, retired dean of Osgoode Hall law school, will oversee the hearing and advise MPs on questions that would be both appropriate and insightful, Harper said.

The prime minister downplayed any risk that nominees in future may balk at exposing themselves to such public scrutiny.

``My own instinct is that being on the Supreme Court of Canada is a sufficient capstone to one's career that one would be prepared to answer a few questions.''

Harper also suggested that more changes are to come.

``Today's announcement does not preclude further reforms _ in fact it lays the foundation, a foundation for greater openness and accountability.''

The danger is not so much that potential high-court judges will bow out, said Eugene Meehan, a former president of the Canadian Bar Association.

``On the one hand, U.S.-style confirmation hearings would prevent a convicted arsonist from being appointed fire chief.

``But the risk is that only the bland will apply, and the blandest of the bland will be appointed.''

Patrick Monahan, dean of Osgoode Hall law school, said the hearing process will allow more input into a system that otherwise gives the prime minister final say.

``This in fact is a check on the discretion of the prime minister. There's always a need to be concerned and watch what happens, but on the whole this is a positive development.''

Ed Ratushny, a law professor at the University of Ottawa, said Harper is jeopardizing an already sound selection process with changes that don't achieve his stated goals of increased openness and transparency.

``They've only been dusted over in a superficial way.''

MPs should be allowed to question all three of the nominees selected by an advisory committee that included input from all political parties, Ratushny said. That way, Harper would truly be consulting Parliament before making a final choice.

As for the danger of partisan hijinx, Ratushny predicted it's all but inevitable.

``The fact is, we have an adversary political process. And the purpose of the Opposition is to make the government look bad. And I don't know why, eventually, you won't get the same dynamic (in Canada) in a forum like this.''

The merits and pitfalls of vetting judicial appointees on live TV have been debated in Canada for years. Beverley McLachlin, chief justice of Canada's highest court, and many other jurists have long said it's a bad idea that could politicize the bench.

Former prime minister Paul Martin toyed with the prospect of public hearings but backed off in the face of vehement resistance from his justice minister, Irwin Cotler.

Vic Toews, the new Conservative justice minister, was a vocal proponent of the right of Canadians to learn more about nominees before they become judges.

Toews left a news conference Monday after Harper's announcement without taking questions from reporters.

Copyright © 2006 The Canadian Press

CHANGING THE SUPREME COURT

Top-court nominee faces fire Monday
Candidate won't object to grilling, PM says
GLORIA GALLOWAY AND RICHARD BLACKWELL
The Globe and Mail
Print Edition 21/02/06 Page A1
With a report from Murray Campbell.

Prime Minister Stephen Harper announced a historic change yesterday in how judges are appointed to the Supreme Court of Canada, saying the nominee to be announced Thursday will have to submit to a three-hour televised grilling next week by an all-party parliamentary committee.

Mr. Harper said the new process is intended to ensure greater openness in the selection of Canada's top judges, although the final decision remains with the prime minister and justice minister. He said he does not expect objections from the as-yet-unidentified nominee.

"My own instinct is that being on the Supreme Court of Canada is a sufficient capstone to one's career that one would be prepared to answer a few questions," Mr. Harper said yesterday at a news conference.

But some legal observers, including the former Supreme Court judge whose job is being filled, said public hearings could scare off potential candidates for the top court.

John Major, who retired from the court in December, said Monday's question-and-answer session will not reveal potential long-term problems with the process, because committee members will be "on very good behaviour" this time.

But there could be problems several years from now when there is another retirement from the court, he said. Potential Supreme Court judges might withdraw from the running, he said, because of "skeletons in their closet."

It makes more sense to have Parliament question the Prime Minister about his choice for the nominee, Mr. Major said.

"I'm just skeptical that [public questioning] does anything other than undermine the nominee."

Still, he acknowledged, most judges would likely be willing to submit to a hearing.

"Look at the U.S.; they go through a gruelling process, yet people seem prepared to do it," he said.

Brent Cotter, dean of law at the University of Saskatchewan, said the spectre of appearing in public might alienate some highly qualified candidates.
If hot-button issues were on the court's agenda, "it would be hard for politicians to resist wanting to explore in detail, and sometimes not very tactfully, the views of an individual candidate," he said.

Mr. Cotter participated in the independent committee that selected the short list of candidates from which Mr. Harper will choose. He said allowing the committee to interview candidates would have been more helpful than having the parliamentarians do so after the nominee has been chosen.

Some members of the legal profession panned the idea of public hearings for other reasons.

"We really don't think it will do anything to improve public confidence in the judicial system and may in fact undermine it, and it may very well leave the impression that the judges are being controlled by the politicians," said Susan McGrath, past president of the Canadian Bar Association.

"We have a very clear distinction between the judicial branch and the executive branch of government, [and] we have that for a reason. It has served our government very well -- our society very well -- and we think we should continue to maintain those separate entities."

Conservatives, including Mr. Harper, have accused previous Liberal governments of stacking the courts with judges who were sympathetic to their views on issues such as same-sex marriage.

In this case, "the nominee will speak to Canadians. And Canadians, through their elected representatives, will be able to learn more about the nominee," Mr. Harper said. "The mere fact that a public hearing will take place represents an unprecedented step forward."

The ad hoc parliamentary committee that will perform the verbal examination will consist of politicians from the four federal parties. Each party must nominate its members by the end of the business day tomorrow. They will be allotted seats according to their representation in the House of Commons.

But, when the examination has ended, there will be no vote by committee members to endorse or reject the candidate before Mr. Harper confirms his nomination on March 1.

"We're not asking for a vote," Mr. Harper said. "I will obviously follow the hearings and I will certainly, in the hours that follow, expect to hear opinions from the various committee members. We don't want, at this point, to overpoliticize the process."

The Prime Minister pointed out that because Parliament has not yet resumed sitting after the Jan. 23 vote, the MPs who do the grilling would not be part of a formal committee of the House.

"And I think it would be a bit unwise to turn that kind of authority over to an ad hoc committee," he added.

Mr. Harper said he would be surprised if the nominee named Thursday is not the person he ultimately names to the court -- in part because all parties have already had some input into the selection.

The Prime Minister has said his nominee will be selected from a list that was compiled by the previous Liberal government, then narrowed to a shorter list of three by a committee that included politicians and outsiders.

Irwin Cotler, the Liberal MP from Montreal who was his party's justice minister, said he was glad to see that the Conservatives did not abandon the selection work done by the Liberals.

Some critics, including Ms. McGrath, have complained that the interrogation will impose on Canadian Supreme Court judges the kind of partisan public scrutiny endured by members of the U.S. Supreme Court.

Ontario Attorney-General Michael Bryant said it will "Americanize and politicize" the judicial system.

"It will not render a better judiciary," he said. "It will render a more political judiciary."

Mr. Cotler disagrees.

"It's not an American-style hearing in the sense that this committee doesn't have the veto power," he said. "The ultimate decision will be made by the Prime Minister and the cabinet in accordance with our own constitutional process."

He argued, however, that MPs should not be allowed to ask questions about matters the judge might be asked to decide -- same-sex marriage, for example.

"I would think it would be inappropriate to elicit from a nominee a comment that could subsequently compromise the independent judgment."

Jamie Cameron, a law professor at York University, said she supports the new process because it gives the legislative branch an important role in selecting a powerful court. Concerns about a U.S.-style system are overblown, she said.

"We seem to think that we'll behave the same way the Americans do when we borrow any of their processes."

York University dean of law Patrick Monahan said the added scrutiny could prevent politicization of the process by discouraging a prime minister from nominating politically tainted candidates, or those who are "outside the mainstream."