It's been said that the true measure of democracy is not merely the existence of voting, but whether those votes ever change anything.
Mexico's been having elections for decades, but most agree the country couldn't truly be called "democratic" until 2000, when a guy from outside the clique that had been running things for the last 71 years won the presidency. Today, we evaluate the state of democracy in places like Russia and Iran not simply based on how many elections they have, but whether the opposition is ever allowed to win them.
When he was still leading Canada's official opposition, one of Stephen Harper's vows to voters was to pump more democracy into Ottawa's opaque process of appointing justices to our Supreme Court, which, at the time, simply consisted of the PM installing whoever he liked. Upon his election in 2006, Harper followed through, and promptly instituted a new appointment regime that finally gave individual members of parliament a role in the process. All Harper Supreme Court picks have therefore had to undergo what the press usually describes as "a grilling" from an all-party committee of the House of Commons specially convened for the purpose. Such was the scene on parliament hill yesterday as Harper's fifth Supreme nominee, Justice Marc Nadon of the Federal Court of Appeals, sat before a motley crew of inquisitors for a three-hour job interview.
That this process is better than the alternative goes without saying. When it comes to clipping the wings of the all-powerful prime minister's office, even the smallest snips are improvements. But is it democratic?
Not by the standards we'd use to judge Russia or Mexico.
In the United States, where members of Congress truly do "grill" presidential Supreme Court nominees in every sense of the word, three of the last 12 have withdrawn their candidacies following legislative scrutiny. The late Robert Bork was perhaps the most infamous; in 1987 the Reagan pick was forced to step aside following relentless denunciations of his right-wing political views from Congressional Democrats, particularly Ted Kennedy who gave an especially hysterical speech on the matter. Things didn't go much better for Douglas Ginsberg, Bork's successor -- he went down following revelations of pot use, a major no-no in the epoch of Washington's War on Drugs. Safer nominees followed for the next 18 years, until George W. Bush was forced to pull the candidacy of would-be justice Harriet Miers in 2005, a woman who inflamed politicians of right and left alike with her wafer-thin qualifications for one of the nation's top legal gigs.
The occasional legislative veto of a judicial nominee might be scandalous, but it's also a profound exercise in democratic accountability -- one of the more inspiring checks and balances of the American system. It's also an outcome unlikely to be repeated as a result of the Harper reforms. Of this, the folks in charge have been pretty explicit.
"We must avoid the American model," began Professor Jean-Louis Baudouin, one of the officiators at Justice Nadon's suitability hearing. Especially, he continued, the vulgar Yankee practice of treating judicial vettings as "more of an interrogation than a dialogue." The committee was instructed to avoid asking Mr. Nadon's opinions "on very controversial issues," as well as asking the man to "explain -- or even worse -- justify" any past rulings from his 20 years on the bench.
And so the questions exchanged over the next three hours ended up being less "hiring committee" than "bring your dad to class day." Minister Glover asked Nadon if he "could explain how our legal system works." NDP MP Françoise Boivin asked him to "explain the term 'supernumerary judge.'" Another MP asked who his role models were. Someone else wanted to know how he tries to "stay connected with average Canadians" (the judge's answer? Well, I like to occasionally "drink wine with friends").
"I hope it wasn't akin to being in the dentist's chair," apologized the Attorney General at the end. The Justice, who with his jowly bald head and flashy bow tie already resembles the jovial manager of some 1950s department store, didn't seem bothered in the slightest.
In fairness, not every question was a softball. Irwin Colter, the ex-Liberal justice minister, tried very hard to query the judge about his dissent in a 2009 Federal Appeals Court ruling that ordered the repatriation of Omar Khadr, an episode which some on the left have already declared a deal-breaker. Despite Colter's best efforts at diplomatic language, alas, both attempts were smacked down. For shame, Irwin, scolded Glover, trying to put the nice judge in such "an awkward position."
Another NDP MP, Eve Péclet, meanwhile, made the interesting observation that while roughly 60 per cent of cases before the Supreme Court of Canada involve criminal matters, Justice Nadon has no legal experience whatsoever in this realm -- his expertise is admiralty law. "One of the great things about being a judge is that you learn quickly," was his only defence. It was a particularly ironic comment considering one of the only reasons Nadon is even being considered for the SCC is because he's a Quebecker, and Canadian law stipulates the court must have three French judges at all times, since Quebec civil law is supposedly so different from Anglo-Canadian common law no English judge could possibly hope to learn it. Nadon hasn't really practised Quebec civil law either, incidentally, but he assured the committee that "maritime law is very similar."
Is Justice Nadon a good fit for the Supremes? Who knows. It's certainly not the vetting committee's decision to make -- their role is strictly advisory -- and in any case, no one involved, not even Minister Colter, showed much interest in the sort of adversarial Q and A necessary to contemplate a negative conclusion. Most MPs simply seemed gratified the PM had asked them to play any role at all.
Again, consultations are better than nothing. But true democratic accountability does not exist in a political system that merely offers legislators a chance to nod politely at the decrees of the executive.
It must also encourage their right, occasionally, to say "no."