Changes to Supreme Court appintments in Canada

Allan Hutchinson, my Public Law professor last term, often complained in class about the judicial appointment procedure in Canada being undemocratic, namely that the prime minister appointed judges without any kind of parliamentary review. He mentioned how the United States was more democratic than Canada in this respect, having US Supreme Court nominees go through a confirmation in front of Congress.

Well, Stephen Harper has changed the way Supreme Court judges are to be appointed. Today, for the first time, a Supreme Court nominee - Federal Court of Appeal judge Marshall Rothstein - faced an all-party parliamentary committee for questions on his life and his views on the role of judges. This is supposed to inform the prime minister's decision of whether to appoint Rothstein.

Osgoode Dean Patrick Monahan expressed his support for the new process on TVO's Studio 2, saying it brings out into the open the views of Supreme Court nominees, a good thing given that Supreme Court judges are some of the most powerful people in the country. Former Osgoode dean and leading constitutional law scholar Peter Hogg addressed critics who claim that the new process risks politicizing the appointment of judges.

"This committee today has the opportunity to show that the critics are wrong," [Hogg] said. "This committee has the opportunity to demonstrate that the Canadian virtues of civility in moderation can make an open and public process work."

Mr. Hogg was also quick to lay the groundwork for the review, reminding panel members that judges cannot express views on cases or issues that could come before the court.

"He cannot tell you how he would decide a hypothetical case," he said. "He might eventually be faced with that case.

"For the same reason, he cannot tell what you his views are on controversial issues, such as abortion, same-sex marriage or secession."

Harper is widely expected to confirm Rothstein's appointment.

Does this new stage in the judicial appointment process make it more democratic? Should judicial appointment be subject to democratic approval at all? Or should it be completely independent from politics? I still haven't made up my mind.