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Why copy the flawed American judicial appointment system? Print E-mail
Written by Link Byfield   
Monday, 06 March 2006

It isn’t often I agree with an NDP Member of Parliament, but Joe Comartin had it right.

The first public “review” of a Supreme Court appointee last week was a waste of time.

Indeed it was worse. Now, no matter how loopy or bossy Justice Marshall Rothstein may get before he is forced to retire 10 years from now (and it’s amazing what undiluted power does to decent people), he can say he was approved by Parliament.

In fact he was secretly short-listed by the Liberal cabinet, secretly approved by Stephen Harper, and faced no challenge whatever from the 12 members of the “review committee” of MPs.

They did not review his past rulings, or the values, attitudes and opinions he will bring to future ones. Mainly they asked why he chose a career in law and similar irrelevancies.

This was a welcoming committee, not a review committee.

But even if it had been a real review, what point would be served? Broad, abstract answers to hypothetical questions are almost worthless.

Senate hearings have not stopped the American court system from becoming highly politicized and autocratic. American judges routinely dictate massive spending programs on things like desegregation and pay equity, erase democratically enacted laws on matters like abortion and euthanasia, define property rights out of existence, and invent new rights for the criminally accused.

Nor should we be reassured that Rothstein said he would "apply the law, not depart from it, and not invent it," and will take "the least intrusive approach" to striking down laws passed by Parliament or legislatures.

Chief Justice Beverley McLachlin probably would have said the same before she started had she been asked. Since then she has pronounced (in New Zealand, not here) that as far as she’s concerned the constitution resides ultimately in her own head.

There’s a far better democratic safeguard than challenging Supreme Court nominees before they sit down to make rulings. It is to challenge the rulings after they are made.

There are three quite different systems of constitutional supremacy.

In Britain and many Commonwealth countries, the elected Members of Parliament are the ultimate guardian of rights. Judges can't overrule them.

The second approach is the American one, allowing judges appointed for life by some long-departed president, and approved by long-departed senators, to overrule elected houses and cabinets.

The third is to leave constitutional questions to the people in a referendum, as in Switzerland.

Canada switched from the British to the American system when we adopted the Charter of Rights, and our Supreme Court soon went from one of the most self-restrained in the world to one of the least.

We didn’t need to. We could have instituted the Charter while leaving elected legislators as its supreme interpreters, rather than switching to U.S.-style judicial supremacy.

Or we could have created -- and could still -- a hybrid system of our own, in which any serious disagreement between courts and legislatures must be settled by public referendum, more like the Swiss.

We could also introduce a Swiss-style limitation on the length of Supreme Court appointments, making reappointment subject to ratification by a joint committee of Parliament every five years.

These restraints would make judges more respectful of the people whose laws they are messing around with.

As for “review” hearings, why copy an American judicial system that’s as bad as ours?

- Link Byfield

Link Byfield is chairman of the Edmonton-based Citizens Centre for Freedom and Democracy, and an Alberta senator-elect.
"Just Between Us" is a feature service of the Citizens Centre for Freedom and Democracy. The purpose of the Citizens Centre is to enhance freedom and democracy by enabling ordinary citizens to become active and effective on important issues outside the normal processes of party politics.

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