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Harper and the Supremes (and What It Means for Our Democracy)

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SUPREME COURT
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Prime Minister Pierre Elliott Trudeau once commented that members of Parliament were "nobodies" 50 yards from Parliament. In a recent interview, Prime Minister John Turner modernizes the observation by dropping the 50-yard qualifier: "Who wants to be a member of Parliament when the job isn't worth anything any more?"

In Toronto on Tuesday night, writer Andrew Coyne debated former Deputy Prime Minister Sheila Copps; the resolution was "power corrupts Canadian prime ministers." (You can find articles based on the opening comments here and here.)

Coyne had the easier argument to make -- Canada's first minister can unilaterally appoint the heads of Crown corporations, the deputy ministers, the governors of the Bank of Canada, the Supreme Court justices, the Cabinet, the House committee chairmen, and the list stretches on. Too much power, in other words, gets concentrated into the PM's hands. Coyne paraphrased Peter Russell's quip that the prime minister is a president without congress.

Coyne's observation is the corollary of Turner's: as Members of Parliament have grown weaker in their influence, the PMO has grown stronger.

Many regret the trend.

On the left and the right, there is a concerted effort to reconsider the role of Parliament. Transparency in the nomination of Supreme Court justices is one of many ideas discussed -- indeed, Coyne made special mention of this, arguing that it is a step in the right direction. (Other ideas touted by parliamentary reformers: an elected Senate, free votes for MPs, a meaningful Question Period.)

On this, we can all agree: Parliament has grown dysfunctional, with too little transparency and too much partisanship. But while reform is desirable, the result may not be.

Consider the "new" process for approving Supreme Court of Canada nominees. Two weeks ago, members of a House of Commons committee questioned nominees Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis.

The only feisty moments occurred when an NDP MP challenged Moldaver over his inability to speak French. (For the record, he committed himself to learning the language.)

Emmett Macfarlane summarizes things well, over at macleans.ca:

For advocates of greater transparency and democratic accountability in the Supreme Court appointments process, Wednesday afternoon's ad hoc committee hearing -- which gave members of Parliament an opportunity to interview the prime minister's two nominees -- was rather difficult to watch...

The questions ranged from vacuous puffery, such as asking Justices Andromache Karakatsanis and Michael Moldaver to name their personal heroes, to glib and disrespectful challenges to Moldaver regarding his inability to speak French.

Even The Globe and Mail -- which has breathlessly endorsed the process -- was tempered in its review, noting that "the hearing was illuminating, but it could be even more useful."

Let's leave aside the issue of whether being unilingual disqualifies a person from the highest bench in the land and whether that line of questioning is even appropriate. It's the whole process that seems flawed. For starters, the conclusion of the event -- an appointment to the Supreme Court -- was virtually assured, given that the prime minister has the power to unilaterally make that decision. And, in fairness to the MPs, the questioning was limited to two and a half hours and the types of questions were also restricted.

But if mid-October was more circus than bread, the potential is there for lively future hearings. The process of having nominees questioned by an ad hoc committee draws its inspiration from the United States. And looking to the American precedent, only one thought jumps to mind: what a disaster.

It reminded me of an email I had received from an acquaintance years ago. At that time, I worked for an American think tank, and the acquaintance asked if I'd consider applying for a job in the U.S. government. The first words describing it? "This position does not require Senate confirmation." For anyone who follows American politics, those seven words are golden.

Some positions in the U.S. government -- usually high offices -- require nominees to be subjected a vote by the Senate. The resulting process is picky, slow, and -- for some -- humiliating, as personal details are trucked out before a committee or two. Over my years of doing public-policy work, I've met more than one clever person who would never subject himself to that type of scrutiny.

The U.S. Senate process represents so much what is wrong with the American political system itself -- the partisanship and hard-ball politics. Of course, everyone knows about Robert Bork's hearings -- so vicious that 'Bork' has become a verb (that is, to bork someone). But few appreciate how much the Bork nomination has influenced all nominations since.

The result? Call it the triumph of the thin resume. Since Robert Bork, nominees to the U.S. Supreme Court have typically spent limited time on the bench -- and thus, face limited potential for tough questioning, since every decision, every utterance, every journal paper can be turned into a weapon against the nominee him or herself. Chief Justice Roberts had spent just two years on the U.S. Court of Appeals when then-president George W. Bush nominated him. Others, of course, have had more decisions under their belt, but it's difficult not to see that jurists with spectacular careers on the bench -- with landmark decisions and controversial opinions -- are not Supreme Court material, or rather, confirmation process material.

Criticizing a nomination process may seem unfair. For starters, many would argue that it's better than nothing. Before the Harper hearings, prime ministers unilaterally appointed people to the court. (I'll ignore the Martin government's "hearings" that featured outside experts and the minister of justice since this was more a meeting of the Mutual Admiration Society than a meaningful attempt at transparency.)

But as we mull the process of approving future Supreme Court nominees, we should look South and see what not to do.

And that speaks volumes about our overall efforts to strengthen the institution of Parliament -- reform ideas may not address the problem that Turner raises; indeed, they could leave us with more partisanship and a weaker Parliament.

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