Historic Canadian judicial appointment fails to produce political transparency or judicial accountablity

Putting a human face to a judicial fix

Don Martin, The Calgary Herald
Published: Tuesday, February 28, 2006

It was a toasting, not a roasting, as a love-in of MPs gently prodded the next Supreme Court appointment to see if he had the right stuff to join the gods of Canadian law.
The all-party committee gathered yesterday to put nominee Marshall Rothstein under the intense stare of television cameras and an umbrella of boom mikes for what Justice Minister Vic Toews hailed as "historic proceedings in the life of our country."

But Rothstein hadn't even opened his mouth for the first-ever questioning of a potential justice's credentials when fawning praise for his "pleasant ... engaging ... highly respected" character, glowing tributes to his "brilliant" judgments, "clear" writing and accolades for his prodigious production of written verdicts were gushing forth from the political fan club seated around a horseshoe table before him.
Any American with confirmation hearing experience watching this would've wondered what planet they'd landed, as our new Supreme Court nominee was pointedly asked to list his mentors, describe what made him want to become a lawyer and suggest what personal experiences had prepared him for the big bench. They clearly forget to ask him his favourite colour and what sort of tree he'd be, given the choice.
Even Rothstein finally had to blush at the "extravagant reaction" by the committee to his nomination and fret that "expectations are so high, I have no where to go but down."

Ultimately, it was an exercise in character definition, not a judicial reference. Let history show that the first question was a Liberal MP wondering what sort of questions the justice shouldn't be asked. Not to be outdone, the New Democrat MP declared himself opposed to this "interrogation" process, which made me wonder why he didn't walk out and spare the committee his inane queries such as how many judgments Rothstein had written. The candidate's correct answer: "I've never gone back to count."
Constitutional expert Peter Hogg described the encounter as "a job interview," but then declared everything of substance off limits to curious MPs except, he suggested, to raise concerns about Rothstein's energy level, his open mind and his ability to play well with others.

It was particularly pointless because Rothstein is the perfect pick for the job and wasn't about to tripwire himself into areas of future deliberation by his fellow Supreme beings.
Was the gun registry a legitimate crime-fighting tool? No comment.
What about the notwithstanding clause? Rothstein appeared ready to answer until Toews rode to the rescue, insisting there was no need to respond and suggesting he could use his time to answer any other question that struck his fancy. A grateful Rothstein ducked.
But if there was ever any doubt Rothstein will be collecting the $266,800 paycheque, it came in his answer to questions about judge-made law.
It's an issue near and dear to Prime Minister Stephen Harper's heart. And when Rothstein said justices should "apply the law, not depart from it and not invent it" while insisting they take "the least intrusive approach" to challenged laws given elected legislative legitimacy, well, that was legal grounds for Harper to instantly promote him to the highest court.

Beyond that, the only value in the exercise was listening and seeing a future justice in the unfamiliar setting of a committee room before he wraps himself in the court's red Santa-like robes, straying beyond the walls of their grey stone castle only to nod off in the Senate while listening to Speeches from the Throne.
Perhaps a lesser mortal will prove the process as valuable, a future candidate whose credentials and record rate closer public scrutiny and perhaps a formal or binding confirmation vote. There is, however, no vacancy in the cards for another seven years, and that sort of decision will probably defer to another prime minister.
As for Rothstein, he'll quickly become an untouchable as one of the Supreme nine with society-redefining powers.
We always knew there was a sharp legal mind under the grey-haired combover who do well peering down from the elevated bench at quaking lawyers below, asking good questions on a finer points of law.
Thanks to yesterday's process, we now know he's the son of immigrants from humble beginnings who developed an intense puritan work ethic on the railway and armed himself with a self-deprecating wit and enough survival skills to credit his wife for his success. But political transparency? Judicial accountability? Nothing of the sort was accomplished by this committee. They succeeded only in putting a human face to a judicial fix.