No, You Can't Talk To The Next Supreme Court Judge

If Irwin Cotler is serious about following his department's full proposal in selecting the next Supreme Court judge, then he's in big trouble.

These are quotations from the Justice Department's proposal, dealing with how the Advisory Committee which vets the next judge should conduct their business:

No In-person Interviews of Candidates

The Government proposes that there should not be any in-person interviews of candidates, either in camera, or in public. The risks inherent in public interviews have been well explored and we agree with the Justice Committee's recommendation that there be "a process of file review only".

In terms of in camera interviews, the Government is of the view that in-person interviews are unlikely to elicit any relevant information that is not otherwise available through consultations and documentary analysis. The real concern with direct candidate interviews is that, even with a strong chair and prior established rules as to the scope of questioning, questioning may stray into ground that is inappropriate or embarrassing for the candidate. In addition, the prospect of being examined in a context where confidentiality cannot be completely guaranteed, could very well deter good candidates from allowing their names to be considered. In our view, the risks of in-person interviews out-weigh the minimal benefits that would be derived.

I highlighted that last passage to point out exactly why the Department doesn't want the Committee to talk to the candidate. The bureaucrats have a very long memory of Clarence Thomas and Anita Hill, and don't want any candidate to be scared off by attacks from partisans on the committee looking to score political points.

The objection to this, however, is that we're talking about a person who's going to interpret the law for all the people. As such, relying on previous written decisions and other documentation isn't going to tell the full story about the candidate. To get a sense about how the candidate really feels about Canadian law and jurisprudence, the Committee really needs to talk to the candidate. It's like trying to hire a person based on CV alone, without a job interview.

Moving right along:

Mechanism to Ensure Confidentiality

The Government proposes that all aspects of the information-gathering, analysis and deliberations of the advisory committee, including the identity of the candidates being assessed, would remain completely confidential.

As indicated earlier, the importance of this issue cannot be overstated. In the Government's view, the overall success and effectiveness of the proposed advisory committee process depends on the confidence of all participants and observers in the confidentiality of every aspect of the committee's work. Without assurances that the process will be confidential, excellent candidates may be hesitant to have their names put forward. Those consulted with respect to individual candidates may be reluctant to provide a candid assessment. Indeed, potential members of the Committee may decline to participate without assurances that other members are committed to maintaining total confidentiality. The requirement of confidentiality would be a continuing obligation on the part of all persons involved in the advisory committee's work, including committee members and staff, as well as to persons consulted with respect to candidates.

In order to underscore the importance of preserving confidentiality, the Government proposes that all committee members and staff would be required to provide written undertakings of confidentiality. The Committee would also be required to obtain prior written undertakings from any person consulted by the advisory committee.

"Conduct in confidence." This means "conduct in secret." No chance for public input, or public scrutiny.

I'd argue that, for a job of this importance, the right of the public to know about the candidate trumps the candidate's right to privacy. We don't need to know if the candidate had an affair with a sorority sophomore, but we do need to know how the candidate feels about sovereignty.

The government doesn't want the appointments process to be turned into a media circus? Fine and dandy. There are mechanisms to prevent that, without putting the whole process undercover. But the appointment of a Supreme Court judge is one that demands, if not public accountability, then at least some semblance of transparency throughout the whole process.

There may be some hope, though, in examining how the Advisory Committee membership should be made up:

Lay Membership

The Justice Committee recommended, and several witnesses supported, inclusion of so-called "lay" members - persons who are neither judges nor lawyers. We agree that the participation of lay members would provide an important perspective to the committee's work, particularly in relation to assessing personal suitability. Lay members would also help promote public confidence in the process by signalling in a concrete manner that appointments to the Court are not the sole preserve of lawyers, judges and politicians.

Accordingly the Government proposes that the advisory committee should include two persons, to be nominated by the Minister of Justice, who are neither active nor retired judges nor lawyers. These will be eminent Canadians of recognized stature in the region - persons of integrity and distinction.

All right. Let's see what we can do about getting Angry and Paul Synnott onto the committee (I'd've suggested Bob Tarantino , but he's a lawyer and so doesn't count) ...