Ottawa Citizen
Monday, December 30, 2002

Scrutinize top court nominees: judge

Sitting member of Supreme Court does not oppose opening up process

Cristin Schmitz
The Ottawa Citizen

For the first time, a sitting judge on Canada's high court has suggested that parliamentary scrutiny of Supreme Court judges before their appointment could be worthwhile if it boosts public confidence.

Supreme Court Justice Jack Major said in a rare interview this week he would not oppose opening up the closed selection procedure for the top court if it did not diminish the calibre of judges appointed or damage the court's reputation.

"If it would improve the public perception of the institution it would be difficult to say you shouldn't do it," said the 71-year-old Albertan, who recently marked his 10th anniversary on the court.

After Gerard La Forest stepped down from the Supreme Court in 1997, he became its only alumnus to endorse public vetting of nominees for the powerful nine-judge court.

Judge Major does not go that far, but he is the first sitting member of the Supreme Court to concede there might be merit to reforming the secretive appointment process, a proposal made last October by Liberal leadership contender Paul Martin.

"I suppose it would be just foolish to say we have a system that's the best and you shouldn't entertain any suggestion of change," Judge Major said in an interview with The Lawyers Weekly. "We have a system at the moment that some people complain about the lack of transparency. If there is a better system, if a parliamentary committee can improve it, then I think the most bull-headed person would say 'Yes, let's do it ... the new way'."

Mr. Martin's plan would require a lawyer or judge who was nominated to the Supreme Court by the prime minister to answer questions before a standing committee of the House of Commons.

It would not be an American-style "confirmation" process because the prime minister would retain power to appoint the candidate, whatever the committee's recommendation.

Judge Major said the former finance minister and other advocates of reform have yet to offer sufficient specifics about a parliamentary committee's mandate and procedures to satisfy him that vetting of Supreme Court nominees by politicians would not degenerate into a damaging partisan exercise aimed at embarrassing the government rather than at informing Canadians.

"I guess there is not enough meat on the bones of this thing yet to really comment that 'yes I am in favour', or 'no I'm opposed,' " he remarked. If "they can flesh it out to satisfy me that what we'd hope to be an improvement, would be an improvement, then I'd say 'go ahead and do it.' "

Judge Major said he is "skeptical" of the insistence by some Supreme Court justices that they would have turned down their posts had they been required to submit to advance screening by a parliamentary committee.

"I think most of the ones that I've heard take that position ... would go before a committee if that was the proceeding ... because I think most lawyers and judges think it's a substantial appointment and it's quite an honour to be picked, and are you going to be so touchy that you wouldn't go before a committee after you are picked?"

He added: "Would a useful (nomination) hearing have been a deterrent to me? The answer is 'no.' "

However, Judge Major emphasized that in his mind it is still an open question whether it would be useful to the public and to the justice system if politicians were to grill Supreme Court nominees.

"I don't know what kind of questions they could ask that the appointee could answer. They couldn't ask: 'How would you decide such and such a case?' because the stock answer, in the U.S. at least, is: 'Well, I have to wait and hear the facts.' "

Given the pressures of politics, Judge Major suggested a parliamentary committee might understandably feel compelled to attract media attention by delving into the personal lives of Supreme Court nominees and their families, or by focusing on divisive topics, such as abortion.

"The first few (Canadian hearings) I think everybody would be on their best behaviour to show how civilized we were and how this is a good thing ... but how long would that last in an adversarial parliamentary system?" he asked. "In order for the public to become engaged, the committee would have to spark a controversy, that's what we see in the U.S."

Judge Major acknowledged public hearings might combat the misconception that Supreme Court judges are "plucked out of the air at the whim of the prime minister."

Prime Minister Jean Chrétien has firmly resisted any change to the 127-year-old tradition that allow\s him to exercise his exclusive prerogative to name Supreme Court justices without input from Parliament. The prime minister picks from a short list prepared by the justice minister after extensive, behind-the-scenes consultation with the legal community.

Despite a growing clamour for a more transparent and accountable selection process by the Canadian Alliance, provincial justice ministers, legal academics and newspaper editorialists, Canadians often know nothing about the successful candidate until after the government announces its choice.

An Environics poll this year revealed the public wants more say in shaping the court, with two out of three people supporting the election of Supreme Court justices.

Mr. Martin pledged to create a "responsibly-executed" process of public review of Supreme Court nominees, not a "partisan circus," but he did not say how he would achieve this. His proposal was trashed by the ex-chief justice of Canada, Antonio Lamer, who warned a "political circus" would inevitably ensue. It's a view shared by many incumbent and ex-Supreme Court justices. Mr. Lamer and former Supreme Court judges Peter Cory and Claire L'Heureux-Dube have said in the past they probably would have turned down the job had they been forced to go before a parliamentary committee.

© Copyright 2002 The Ottawa Citizen