Harvard Mice come home to roost

February 23, 2006 11:49 AM

(CanCon Newsfilter): The vacant seat on the Supreme Court of Canada will be filled by Marshall Rothstein of the Federal Court of Appeal. Interesting enough, as he's the fellow that ruled that Harvard was entitled to patent a mouse (which was overturned by the SCC) and was involved in banning Ernst Zundel and David Irving from Canada. However there's a twist. For the first time in Canada, Stephen Harper's new Conservative government has decided that an all-party committee will question the nominee and provide recommendations to the PM (although the final decision rests with Harper, and the committee has no veto power).
posted by loquax (14 comments total)

Good post.

Although I disagree vehemently with moves toward elected judges and even disagree with the idea of vetting judges with the House or Senate, (I think these things encourage unsophisticated black-and-white Supremes and inflame the bad side of partisan politics,) upon reflection I think that this is a pretty good move. So long as the House has no veto power, I think it's good for democracy for the public to have heard the judge's answers to some questions, to have a better idea of the person who is going to join Canada's highest court.
posted by Marquis at 12:00 PM on February 23, 2006

It'll be really interesting to see how the MP's act - what kind of questions they ask, etc. This time out, there is no rules about what questions they can or cannot ask. But the MP's haven't had very long to prepare themselves for this, so I'll be interested to see how the attack it.
posted by raedyn at 12:05 PM on February 23, 2006

The Canadian Bar Association is pretty dead set against this, as is just about every lawyer I know, for what it's worth. I don't really see a problem, as the whiff of political backing for a judge exists even without a parliamentary grilling, as they are unilaterally appointed by the PM.
posted by loquax at 12:16 PM on February 23, 2006

CanuckistanFilter
posted by AaronRaphael at 12:17 PM on February 23, 2006

We elect those representative (well, not the Senate yet) to represent the will of the people. This is a very good move, and I'm not sure that a near-unanimous (90%?) vote against the candidate by the committee, therefore getting past partisanship, should not have veto power.

I do not want elected judges/sheriffs/dogcatchers/etc. in Canada, but we've suffered a democratic lack for a long time that really needs to be fixed.
posted by Kickstart70 at 12:19 PM on February 23, 2006

So long as we absolutely avoid the current fubar situation in the USA, where a socially regressive panel is likely to haul their laws back into the dark ages.
posted by five fresh fish at 12:26 PM on February 23, 2006

By the way, I can't find anything too meaty online about Rothstein and the Irving and Zundel cases beyond some odd Rense links and rubbish from pro-Zundel sites. Although there is this interesting press release from the Zundel defense team that has this gem from Irving:

Our appeal was heard by a Mr Justice Rothstein, who mysteriously took over the case from a judge with a less unpromising name; in a one-line judgment Rothstein refused to hear the appeal, without stating any grounds.
posted by loquax at 12:36 PM on February 23, 2006

I don't see this being a nutty situation like in the US. Abortion is not a particularly thorny legal issue, as we've had two 9-0 Supreme Court rulings on the issue, and even the Conservative appointees supported a woman's right to choose. The prevailing wisdom is that gay marriage would be unanimously upheld by the Supreme Court as well, even by the two Conservative appointees (including the chief justice).

I suspect that Rothstein will follow the current trend.

I do see the idea of an all-party committee questioning the candidate as troubling solely for the reason that it politicizes the process much moreso than it already is. The judiciary in Canada are noteworthy for their apolitical nature (compared with many other nations).
posted by solid-one-love at 12:44 PM on February 23, 2006

It seems to me that this committee idea is turning into an illustration of the Mickey-Mouseization of the Canadian political process. On the one hand you have this great-sounding committee to vet nominees, but on the other hand that same committee is, frankly, as pointless as committees can get, since the only person who actually gets any input in the decision is the guy who nominated the nominee in the first place. Get a lot of talking heads on the telly (well, on the parliamentary channel anyway), but no power whatsoever. All show and no substance. I wonder if that's the kind of bold leadership we can expect from this Conservative government.

In a way it's almost cute, in the way a 3-year-old attempts to mimic the actions of his dad without consequence or even clear idea of what the father is really doing.

Anyway, we're stuck with this sort of thing for the next, what, 18 months at least, so we might as well consider the positive side: the average Canadian might end up actually knowing the names of the Supreme Court justices. I don't think that's the case now. Most of us probably know more of the members of SCOTUS than of our own high court.
posted by clevershark at 12:52 PM on February 23, 2006

But debate and dialogue - even without veto power - is valuable. It helps set the terms of the national discussion, much as the NDP have had an impact on the frame of Canadian politics even when not in power.
posted by Marquis at 1:08 PM on February 23, 2006

I do see the idea of an all-party committee questioning the candidate as troubling solely for the reason that it politicizes the process much moreso than it already is.

Honestly this strikes me like Harper et al. have watched too many episodes of West Wing and the like and want to put nominees through something like a senate confirmation hearing.
posted by Zinger at 1:30 PM on February 23, 2006

(although the final decision rests with Harper, and the committee has no veto power).

I don't know, it doesn't strike me as particularly unique to have a multi-party panel come together to be summarily ignored by the ruling party, which is what I expect will ultimately happen.

Or maybe they'll appoint a liberal judge and he'll "cross the bench" immediately after?! ;)
posted by The God Complex at 1:52 PM on February 23, 2006

Can the appointment of judges spark a No Confidence vote, or are they treated more like cabinet members, where it's totally the PM's whim?

(Man, Canadian politics is fascinating to me because they -largely- speak English and have little impact on my life. It's like this neat little laboratory that doesn't get all mixed up with the emotional response I have to politics here...)
posted by klangklangston at 3:06 PM on February 23, 2006

Can the appointment of judges spark a No Confidence vote, or are they treated more like cabinet members, where it's totally the PM's whim?

Totally the the PM's whim. Justices are appointed by the PM alone and are not voted upon by parliament. I suppose an unpopular appointment could trigger other parliamentary reactions, but in most cases, with a majority government, it wouldn't matter. In any case, the short list (and Rothstein) was assembled by the Liberal government, not Harper.
posted by loquax at 3:54 PM on February 23, 2006