Wednesday, August 25, 2004

Let's talk about your awareness...

I don't have much to add to Bob and Paul on the dog's breakfast that is the new "vetting" process for Supreme Court justices. I did want to note, however, a strange line in the CP story describing the process and the two nominees (hat tip Warren!). The fourth paragraph:

"[Justice Minister Irwin] Cotler will field questions from a panel of MPs and legal experts about each candidate's intellect, racial awareness, integrity and other attributes."

Is this really what's going to be happening today? The three "attributes" cited in this story - is that why we want to vet SCC judges? "What were Ms. Charron's grades in law school? Is she aware of the concept of race, and that Canada is populated by several of them? Is it true that she regularly cheated at dodgeball in junior high?"

The third line of questioning, as I understand it, is to be avoided so as not to Americanize our courts (AAAAAAHHH!). The first is ridiculous. And the only conceivable purpose of the second is to determine whether the nominee is willing to accord specific Canadians unique treatment under the law based on their race. I suppose this is a valuable line of questioning; my problem is that undoubtedly the majority of the panel is looking for a qualified Yes.

But really, it's all ridiculous. The only topic of relevance when examining SCC nominees should be: in what esteem do the nominees hold the various Sections and rights in the Charter, and what history and intentions do they have when two Sections or two enumerated rights come into conflict with one another. How important is freedom of speech in the broader context of the Charter? How about freedom of religion? Are there instances where a right not explicit in the Charter should outweigh one that is? These are questions that SCC nominees should be answering, and they should be answering them personally, because I don't care how smart Cotler is, he is not able to characterize their judicial sensibilities as well as they are themselves.

Point taken from the ubiquitous Mr. McClelland that this is indeed only a "trial program". I wouldn't be surprised at all to see that one of the future changes is that nominees insist on speaking for themselves. (I would be even less surprised to see the process canned wholesale - the problems inherent in this process will provide the government a nifty excuse to nix it.)