The Senate Judiciary Committee hearings into the Judge Sonia Sotomayor appointment to the United States Supreme Court have reminded me why the idea of importing these hearings for real into our Canadian SCC appointment process bothers me. They’ve reminded me in a lot of ways, but one that stands out from this time around is the way in which the exchanges are antithetical to the process of judging. Judging should involve thoughtful consideration of the evidence, and, depending on the nature of the case, especially constitutional cases, of the context of the case. Of course, judges have predispositions, based on their life experience and on the material filed by the parties that they have reviewed prior to the hearing. Granted, this is both simplistic and not always achieved, but this is the general idea. Exercising these qualities, though, is likely to be fatal in USSC Senate hearings. The last thing a nominee wants to do is engage; the first and only thing is to avoid controversy, make sure that any previous controversial remarks are disowned and, if possible, reduced to banality. If we want judges who show insight, courage and forthrightness in difficult cases, we don’t find them through this process, although this doesn’t mean they might not slip through by careful staging.
There are those who argue that we would not see this approach repeated in Canada if the government establishes a fully-developed process for parliamentary hearings into Supreme Court of Canada judicial appointments. After all, the U.S. process has been honed to a fine turn so that everyone knows their roles and does their best to perform them (I’m being unfair here to those on the Committee who are expected to oppose Judge Sotomayor’s appointment based on their own party affiliation, but who will apparently vote for her, but they are more than accounted for by their compatriots who bluster their opposition.) And, we are told, our parliamentarians are just not as ideologically directed as are many elected representatives in the United States. So maybe there’s hope that a Canadian variant (if the process really is established) will reveal thoughtful questioners and intellectually honest and independent judicial candidates who will together provide the public with a wonderful display of what the justice system at its best can offer. Maybe – and maybe I can still dream that I have the full summer ahead of me.