The Right Person to Ask

There was an interesting op-ed in yesterday’s Globe by Adam Dodek, arguing that the mechanism which the federal government has devised for bringing greater transparency to the appointment of new Supreme Court judges, namely the interview of the new appointee by a special committee of the House of Commons, is a failure, and that instead of the judges, it is the those who appoint them who should be interviewed. This suggestion seems quite right to me, with perhaps a minor question mark.

Prof. Dodek writes that the hearings at which the newly-appointed judges are interviewed are “about nothing ― or at least nothing of legal significance.” Judges tell their life stories, make jokes, and generally appear pleasant. But they say nothing at all about their views on the law or on the job that they are about to take up. And although the hearings allow citizens to learn something (trivial) about the new members of the Supreme Court, they do not make the politicians who appoint them accountable for their decisions.

Hence prof. Dodek’s suggestion:

The wrong person is on the hot seat. It should be the justice minister, not the nominee, explaining the selection. As it stands, the process has actually led to less accountability: By putting forth the nominee to be interrogated, successive justice ministers have completely escaped having to explain their decisions.

Irwin Cotler, when he was Justice Minister, did appear before a committee of the House of Commons to explain the appointments of Justices Abella and Charron, talking about their qualifications and jurisprudence. That, says prof. Dodek, is how we should do it.

That seems about right. The small question mark I mentioned above concerns the identity of the member of the government who should explain appointments to the Supreme Court. Unlike ordinary judicial appointments, which are primarily the Justice Minister’s responsibility, appointments to the Supreme Court are (also) a direct concern of the Prime Minister. As prof. Dodek says, bringing some accountability to the process is meant to be a check on Prime Ministerial power. So why should not the Prime Minister himself appear? There may well be good reasons for this. For example, the Justice Minister is probably better placed to talk about Judges’ careers and past decisions, even if the ultimate decision to appoint them is not really his. But it’s too bad that prof. Dodek does not explain this.

Apart from that question, I think it would be a very good thing to have the government explain its decision to appoint a judge, rather than the judge appear for a meaningless getting-to-know-you interview. Of course, the Justice Minister or the Prime Minster would mostly deliver feel-good boilerplate, but that would be no loss over the current process. Any substance at all that they might provide would be an improvement. And they could be questioned more aggressively than a judge. There are good reasons why judges should be circumspect in talking about the law ― they should not give rise to any worry that their minds are made up about issues that they might have to resolve in the future. (There are bad reasons for circumspection too, such as the desire to preserve the appearance of a judiciary that does not shape the law, but they are not the only ones.) There are no such reasons for cabinet ministers explaining their decisions.

Of course, it is difficult to expect any government, and especially the present one, willingly to submit to more accountability instead of deflecting questions. But such things happen, every now and then. Let us hope that this will be one of these cases.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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