Prime Minister Stephen Harper announced a historic change yesterday in how judges are appointed to the Supreme Court of Canada, saying the nominee to be announced Thursday will have to submit to a three-hour televised grilling next week by an all-party parliamentary committee.
But some legal observers, including the former Supreme Court judge whose job is being filled, said public hearings could scare off potential candidates for the top court.
John Major, who retired from the court in December, said Monday's question-and-answer session will not reveal potential long-term problems with the process, because committee members will be “on very good behaviour” this time.
But there could be problems several years from now when there is another retirement from the court, he said. Potential Supreme Court judges might withdraw from the running, he said, because of “skeletons in their closet.”
It makes more sense to have Parliament question the Prime Minister about his choice for the nominee, Mr. Major said.
“I'm just skeptical that [public questioning] does anything other than undermine the nominee.”
Some members of the legal profession panned the idea of public hearings for other reasons.
“We really don't think it will do anything to improve public confidence in the judicial system and may in fact undermine it, and it may very well leave the impression that the judges are being controlled by the politicians,” said Susan McGrath, past president of the Canadian Bar Association.
“We have a very clear distinction between the judicial branch and the executive branch of government, [and] we have that for a reason. It has served our government very well — our society very well — and we think we should continue to maintain those separate entities.”
The legal profession is always so quick to call for more transparency in everything, except into the minds of its supposedly best and brightest.
Why should a nominee for the highest judicial office in the land fear to face a few questions about his judicial philosophy or his opinions about the state of the law in general? The nominee is not being called upon to answer for prior judicial decisions he may have made as a judge on a lower court, nor is he being asked to declare how he would decide on an actual case that will come before him.
Past Supreme Court justices have shown no fear in lecturing the public and politicians from the bench and public podium. Yet now they shrink from answering a few simple questions that will not compromise any court rulings.
The real fear is that for the first time, the judiciary might be called to account for using the Charter to create an unaccountable super-legislative body to re-engineer society. If they have to answer questions about their judicial philosophy, its logical and factual errors might be exposed. The judiciary might lose public confidence in its position as infallible interpreter of the sacred Charter.
Some Protestant polemicists still claim that the Church deliberately hid the Bible from the faithful to protect her power over them.
Now it appears that the judiciary have been hiding their thoughts to do the same.
Source: Globe and Mail