Bring the hot seat to Canada

Bruce Garvey
National Post

Friday, September 16, 2005

John Roberts, in all probability the next chief justice of the U.S. Supreme Court, is on the hot seat.  The photogenic 50-year-old lawyer and appeals court judge is facing the supreme test of confirmation hearings prior to a Senate vote on his appointment.  [...]

[L]ive television coverage is giving us a tantalizing insight into the process that controls the selection of America's judicial elite.  It's a civics and history lesson par excellence that should be mandatory viewing � especially for Canadians.

For weeks now, every word that Judge Roberts ever wrote, every memo, judgment and legal opinion was dissected by pundits and lobby groups.  And now the unflappable judge is facing cross-examination by legislators on a range of issues that run the gamut from Abraham Lincoln, Alexander Hamilton and the Federalist Papers to abortion, the death penalty, civil rights, the right to die and whether Congress could vote to end the war in Iraq, given the President's constitutional role as commander in chief.

As a Canadian, one can only watch this drama unfold in wonderment, frustration and the stark embarrassment of how we appoint our Supreme Court justices north of the border.  In place of all this scrutiny, we ultimately get our judges at the sole discretion of Paul Martin � the same prime minister who continues to flout his anti-cronyism commitment by appointing friends and associates to our flabby, pointless Senate � with virtually no input or meaningful consultation.

Last year, with much fanfare, Justice Minister Irwin Cotler announced the "revolutionary" concession that a parliamentary committee would be allowed to review the appointment of liberal feminists Rosie Abella and Louise Charron to the top court.  But only Cotler himself ever appeared before the committee � to praise the appointments, naturally.  Some revolution.

You cannot watch Judge Roberts sparring with the likes of Democrats Joe Biden and a "deeply troubled" Ted Kennedy without imagining Mme. Justice Abella � who previously stated that a teenager's right to practise gay sex was protected by Pierre Trudeau's Charter of Rights and Freedoms as a form of expression � squirming under a similar spotlight.  While her left-wing activist background makes her a darling of Toronto's liberal Rosedale set, Canadians know precious little about her beyond superficial newspaper reports.  Subject her to the Judge Roberts treatment and they would be in for a shock.  [...]

Dumbing it down to the Civics 101 level, he stressed � Beverley McLaughlin take note � that no supreme court is there to make the law.  "I believe very strongly in the separation of powers," he said.  "It was a very important principle that the framers set forth that is very protective of our individual liberty and makes sure that the legislative branch legislates, the executive executes [and] the judicial branch decides the law."  [...]

Whatever your preference, the process on display in Washington helps Americans understand what kind of justices will be responsible for interpreting their nation's Constitution.  Sadly, we're so accustomed to the Supreme Court being part of the Prime Minister's personal fiefdom that if we ever tried to follow suit, we might have to bring in American senators to do the confirming.