Pass the Milquetoast

Yesterday’s all party review of Justice Rothstein’s pending appointment to the Supreme Court of Canada was as historic as it was meaningless, but I would not go so far as to call it a waste of time. The idea of a Parliamentary review of judicial nominations is a good one, but the implementation is a bit tricky.

Patrick Monahan and Peter Hogg from the Osgoode Hall Law School at York University proposed several principles for such a review process in April of 2004 when Prime Minister Paul Martin first suggested such a review.

• The ultimate decision must rest in the hands of Cabinet on the recommendation of the Prime Minister.
• As the goal is transparency and accountability, the role of a Parliamentary review must be advisory, rather than executive.
• The review should occur after the PM has made the selection, but prior to final appointment.
• A protocol should be established to govern the proceedings and establish limits for appropriate questions.

Monahan and Hogg also recommended that the review committee include members of the Canadian Judicial Counsel, Law Societies and Bar Associations as well as representatives of the Provincial Attorneys General.

For Justice Rothstein’s review, the protocol for questions was limiting to the point of being absurd. The restriction from asking hypothetical questions and inquiring about issues that might come before the court makes sense – you do not want Parliament to pressure the court to decide cases in certain ways. As I am not a legal scholar however, I fail to understand why questioning a nominee to explain the legal basis for past judicial decisions compromises judicial independence. I can however see how it could make the process more partisan and acrimonious. The result was civil and respectful, but not exactly probative.

One thing is sure, now that the process has been opened up, it would be very difficult (and just as meaningless) to go back to a closed process. Additionally, just because this particular review was cordial, does not mean that the format will always produce such results. I can imagine a scenario in which a Liberal cabinet nominates a fairly liberal judge and the Conservatives repeatedly ask questions pertaining to past, present or future cases before the court, and making a big partisan deal of the nominee’s refusal to answer these questions.

In the end however, like a pair of warm socks at Christmas, this time everyone got more or less what they needed, but not what they most desired. Parliamentarians and the Canadian public got a public review process lacking both partisan rancour and probative rigour. Conservatives got a well qualified moderate conservative judge who will apply constitutional law as narrowly as required and who lacks an activist social agenda. Liberals got a well qualified moderate conservative judge who will apply constitutional law as broadly as required, but who lacks an activist social agenda.