Courting Controversy: The House of Commons’ Ad Hoc Process to Review Supreme Court Candidates

Article 8 / 13 , Vol 38 No.4 (Winter)

Courting Controversy: The House of Commons’ Ad Hoc Process to Review Supreme Court Candidates

In 2006, Canadians were introduced to a new ad hoc parliamentary process to review Supreme Court candidates prior to their appointment. This article explores how the English-language news media framed this appointment and review process. The authors note the media emphasized conflict surrounding the process over its scrutiny of the candidates themselves and conclude that it remains an open question whether the process of parliamentary vetting actually provided a meaningful educative function for Canadians.

The Supreme Court’s appointment system is the focus of frequent criticism.1 Its historically executive-driven selection process has been heavily scrutinized, though few contest the high calibre of judges it produces. That said, a consequentialist defence of the appointment process became inadequate long ago. The Court’s judges are simply too important and too powerful to be selected through a process that lacks any formal requirement for transparency or accountability on the part of those charged with the job of judicial selection – the prime minister and cabinet. Beginning in 2004, both Liberal and Conservative governments appeared to agree, and in 2006, the Conservatives introduced an ad hoc parliamentary review process where Members of Parliament interviewed Supreme Court candidates prior to their appointment. While arguably a step in the right direction, these changes may very well have been short lived: after only eight Supreme Court nominations, the Conservative government confirmed in December 2014 that the parliamentary review process would no longer be followed.

Many Canadians would have been oblivious to the Supreme Court’s new appointment process and its abrupt end if it were not for its strong play in the media. As the public’s most prominent source for information on governmental procedure and decision-making, news media had the ability to not only cover, but also frame the discussion surrounding the Supreme Court’s appointment process. By analysing the English language media coverage of the eight judges who were nominated to the Supreme Court between 2006 and 2014, this paper considers how the media covered the appointment process, and in particular, how it portrayed the new parliamentary review process to Canadians.

In our analysis of the media coverage of the Court’s appointments, we find that the media emphasized conflict surrounding the new process from the very beginning. In fact, the media’s coverage of the conflicting views toward the parliamentary review process outweighed its scrutiny of the judicial candidates themselves. The media also heavily covered partisan-based conflict in the form of the Conservative Party’s assertive stance against judicial activism, and the NDP’s criticisms concerning a dearth of female appointees. Finally, in their coverage of the MPs who made up the parliamentary review committee, the media disproportionally covered the conflict between members over the process itself, almost ignoring their actual views on the candidates. While media’s tendency toward the sensational or conflict-driven news is hardly out of step with the larger body of findings around media and politics2, it remains that Canadians were exposed to the parliamentary review process through the lens of partisan squabbling, and may have come to learn less about the Supreme Court candidates than the objectives of the process would intend.

The next section provides a brief review of the Supreme Court’s appointment process, the changes that were introduced beginning in 2004, and the events that eventually led to their retraction in 2014. From there, we elaborate on the findings of our media analysis and conclude by offering thoughts on what can be learned about recent Supreme Court appointments when considered through the lens of the media.

Appointing Supreme Court Justices

In Canada, the formal power to appoint judges to the Supreme Court rests with the governor-in-council. In practice, however, the prime minister in consultation with the minister of justice exercises this prerogative. For a court with final word on both federal and provincial law, this concentration of power in the federal executive has long been criticized by the provinces, and unsurprisingly, was a topic of debate during all recent initiatives to reform Canada’s constitution from the Victoria Charter (1971) to the Charlottetown Accord (1992).

With the entrenchment of the Canadian Charter of Rights and Freedoms in 1982, the Court’s jurisdiction expanded considerably, transforming it from a court primarily concerned with resolving private disputes to one of public law and rights review.3 The Supreme Court’s growing political importance was accompanied by renewed attention to its appointment process. However, in contrast to earlier initiatives that focused on increased participation by the provinces, these new calls for reform often focused on bringing Parliament into the selection process. The Reform Party (1987-2000) in particular, citing a perceived move toward “judicial activism” by the Court, was a vocal advocate for the vetting of Supreme Court candidates by Parliament.4

Such calls for reform gained little traction during the leadership of Liberal Prime Minister Jean Chrétien (1993-2003); but were quickly picked up when new Liberal leader Paul Martin took office in 2003. While the short tenure of Martin’s government (2003-2006) meant that the reforms sought by the Liberals were not fully implemented, the initiative to reform the Supreme Court’s appointment process continued under the Conservative Party when it formed government in January 2006.5

These reforms to the appointment process featured two additions of particular note: (1) upon a vacancy on the Court, a review committee composed of Members of Parliament would now be convened and asked to review a government list of judicial candidates (five to eight names), which the committee would then narrow to a shortlist (three names);6 and (2) an ad hoc committee composed of MPs mandated to publicly interview the government’s proposed Supreme Court candidate prior to his or her appointment.7 In contrast, prior to 2004 all components of the selection process occurred behind closed doors and even the specialists and associations consulted by the government were not disclosed.8

This new process was first used for the appointment of Justice Marshall Rothstein, who appeared with much fanfare before a public committee in February 2006. However, with no legislation or constitutional amendment passed, the informal nature of these reforms meant that the government retained full control of the appointment process. In practice, then, public criticism was the only possible penalty the government risked by deviating from these reforms. In fact, between 2006 when the hearing process was introduced and 2014 when the government announced its intention to abandon the process, only five of the government’s eight judicial candidates actually participated in the committee process.

The longevity of these reforms was tested by a series of unusual events beginning in 2013. In October of that year, Prime Minister Harper announced Justice Marc Nadon as the government’s choice to replace Justice Morris Fish, who had recently annunced his retirement, on the Supreme Court. Less than six months later, the same court declared in Reference re Supreme Court Act ss. 5 and 6, [2014] that Nadon was ineligible to serve and that his appointment was void. This ruling alone was an extraordinary event; however, the outcome was especially remarkable considering the number of supposed parliamentary checkpoints Nadon passed prior to his appointment. Not surprisingly, the rigour of the new appointment process was questioned in light of the Court’s ruling.9 The government responded by bypassing the hearing process altogether when appointing Nadon’s replacement, Justice Clément Gascon. Citing the publication of a leaked candidate shortlist by The Globe and Mail in May 2014 as the reason for not using the committee process, it was bypassed again with the appointment of Suzanne Côté in December 2014. With the latter appointment the Conservative government announced that it would no longer ask parliamentarians to review the candidate shortlist or interview its selected judicial candidates. Instead, the Conservative government appeared prepared to resume the pre-2006 approach, with consultation and review conducted entirely by the government itself. At the time of writing, little is known about how the new Liberal government will approach the process.

Evaluating the Parliamentary Review Committee Process

At this point of apparent transition for the Supreme Court’s appointment process, looking at media coverage can help us to understand how the role of Parliament and individual MPs involved in the appointment process were reflected to the Canadian public. By considering the English language coverage of the eight judges who were nominated to the Supreme Court between 2006 and 2014 in the National Post, The Globe and Mail, the Ottawa Citizen, the Toronto Star, as well as the Canadian Press (all collected from Dow Jones’ Factiva), we can uncover how media portrayed the parliamentary review process to Canadians. In particular, we can illuminate how the media portrayed parliamentarians involved in the process. The former has value in that it illustrates what Canadians were likely to know about changes to the process of appointing members of the Supreme Court – who were recently voted the ‘policymakers of the year’ by the Macdonald-Laurier Institute.10 The latter’s worth lies in evaluating the commentary that Canadians were provided about parliamentarians’ participation in this process. In a system of governance where the executive is known for appointment of judges and other senior offices by fiat, the movement toward a more Parliament-centred approach to the appointment process could have suggested a wresting of power away from the centre. However, a poor review in the media could have equally reinforced the need for a swift, unencumbered executive-driven appointment process. The following content analysis of media coverage of each candidate spans the day that an appointment was announced until one week after the confirmation of the appointment by the Prime Minister. The analysis also contains an assessment of the media’s treatment of MPs during the course of the appointments by looking for all instances where specific MPs’ behaviours or their commentary on the appointment process were reported.

A review of the 211 articles collected shows two types of coverage of the appointments: process-related coverage (reporting that addressed the implementation of the ad hoc parliamentary review process itself), and hearing content-related coverage (reporting of the hearings’ proceedings). We can further break down each of these two categories into four sub-categories. For the process coverage, we identified four sub-themes: (1) Factual information about the hearing process (e.g. “A 12-member committee will publicly scrutinize Justice Rothstein on Monday – the first such televised grilling in Canada.”); (2) Contestation or controversy about the hearing process (e.g. “Harper’s decision to hold such a hearing had already generated controversy and sparked fears that he was politicizing the judiciary.”); (3) Contestation or controversy about the pre-hearing short-list selection process (e.g. “The nomination of Judge Cromwell means that the government has bypassed Newfoundland, which has never had a judge on the Supreme Court and has conducted a spirited lobbying campaign.”); (4) Contestation or controversy about the nominee (e.g. “New Democrat Joe Comartin expressed concerns that Moldaver doesn’t speak French.”). Hearing coverage can also be broken down into four sub-themes: (1) Concern over gender imbalance in the Supreme Court’s composition (e.g. “Judge Wagner’s nomination alters the court’s gender balance – there will be just three female judges, instead of four, now that Madam Justice Marie Deschamps is being replaced by a man.”); (2) Charter-related considerations (e.g. “Mr. Cotler said his party may also ask about the impact of the Charter of Rights in Canada.”); (3) Mentions of transparency/accountability (e.g. “‘This hearing marks an unprecedented step towards the more open and accountable approach to nominations that Canadians deserve,’ concluded the Prime Minister.”); (4) Judicial activism (e.g. “[H]is government feels some things are better left to Parliament and that some judges sometimes overstep their jurisdiction.”).11

Looking at the proportion of coverage dedicated to each of these themes, the data in Figure 1 show the media’s reporting on factual information about the hearing process was more prominent in earlier appointments. Indeed, media provided ample information for the first hearing (Rothstein), a moderate amount for Moldaver and Karakatsanis (who appeared together in a joint hearing), and again for Wagner, but little for Nadon. Understandably, little factual information about the hearing process is provided for Cromwell, Gascon and Côté who, at the prime minister’s direction, bypassed the process altogether. However, the Gascon and Côté appointments did receive ample criticism concerning the hearing process, or rather the government’s choice to omit this step altogether. The largest volume of criticism of the selection process came with the coverage of the Nadon appointment. Much of the standard coverage around what would have been the appointment of Justice Nadon was replaced by coverage of the legal challenge of his appointment. There was also substantial controversy over candidates during the Moldaver and Karakatsanis appointments. Moldaver, widely criticised for not being bilingual, received negative attention from the press after the grilling he received from NDP MP Joe Comartin, while Karakatsanis came under media fire for her lack of trial experience and her connections to the Ontario Progressive Conservative government under Mike Harris. There was also moderate coverage of controversy around the Côté appointment and the candidate’s ties to an on-going tobacco lobby case.

Looking at reporting on the content of the hearings, Figure 2 illustrates that two issues received prominent coverage. During the first three hearings, media increasingly focused on the discussion of Charter issues. However, the nature of the conversation changed from decision-making to representation when coverage turned to the gender imbalance on the Court after Justice Marie Deschamps’ retirement in 2012. Media also covered concerns over judicial activism, though this was only a focus for the Rothstein appointment (spurred on by Conservative MPs’ probing questions during the course of the hearings), and the Karakatsanis/Moldaver and Wagner hearings. In some sense, the Wagner hearing represented a turning point for coverage of the content of the hearing process. While the earlier hearings featured coverage of policy-oriented considerations, such as judicial interpretation of legislation and the Charter, this type of coverage was replaced by the partisan conflict over the failure to restore gender balance to the Court, which remained unaddressed until the Côté appointment. Coverage of the issue of transparency was intermittent, until the final appointment where the press and the legal community strongly criticized the government for reneging on their commitment to follow a more open process.

Looking at media’s take on the process and content of the hearing provides us with information about the process as a whole. However, by examining coverage of the actual committee members in the context of these hearings, we can better analyse how the media portrayed parliamentarians as either helpful or adversarial to the process. Analysing media data for mentions of the MPs who made up the respective panels suggests six themes: (1) Endorsements of the candidate (e.g. “Mr. Comartin stressed that Judge Cromwell ‘is eminently qualified’.”); (2) Critiques of the candidate (e.g. “The Bloc argued that Judge Rothstein’s inability to speak French and lack of background in Quebec’s Civil Code should disqualify him from the Supreme Court.”); (3) Messages of non-conflict about the process (e.g. “But Barnes says the Liberals will be ‘respectful’ when asking Rothstein his opinions on various topics.”); (4) Criticisms of the hearing process (e.g. “Comartin says the hearing won’t generate much useful information.”); (5) Factual information about the hearing (e.g. “Justice Minister Vic Toews will chair the committee and be joined on it by his Liberal predecessor Irwin Cotler.”); (6) Substantive policy or candidate-related questions (e.g. “Mr. Menard also intends to ask broader questions about how Judge Rothstein views the evolution of Canadian law.”).

Once again, the trend toward portraying conflict takes precedence in media coverage, accounting for an increasing portion of MP coverage as the hearings continued. Regrettably, from an informational perspective, there appears little by way of coverage of more substantial issues such as public policy-related questions or questions soliciting the justices’ views on the role of the courts. In other words, during the process of the hearings, media did not associate MPs with information gathering, but portrayed them as conflict-oriented partisans. While there is not much by way of open attacks on the candidates themselves – save for the Karakatisanis and Moldaver hearing where MPs flogged the issue of Moldaver’s unilingualism – there was also little in terms of praise for candidates. Similarly, while messages of non-conflict and ‘across the aisle’ cooperation were present in the Rothstein hearing, future hearings devolved into the adversarialism typically attributed to parliament. MPs are portrayed as being less interested in the candidates they are meant to review than they are in engaging in partisan conflict. In short, those who had hoped that the ad hoc parliamentary committee process might provide an opportunity for MPs to be portrayed with less partisan rancour were ultimately let down.

It has been pointed out that these parliamentary hearings provided a unique opportunity for Canadians to get to know members of the Supreme Court before they took their position on the bench.12However, when you consider that most people would have learnt about the process and content of these hearings through the media, the evidence supporting this laudable objective is less than convincing. The first committee hearing, with Justice Rothstein, was certainly the high water mark in terms of depth of media coverage. However, the educative value of the new process, at least as measured by media coverage, appeared to decrease over time. Admittedly, this may be a function of the weakness of the content produced by the committee process itself, where MPs tended to ask questions of little substance.13 The fact remains, however, that media coverage over this nearly decade of appointments was not especially notable for the information it provided on either the judicial candidates or the appointment process. Moreover, the addition of the parliamentary review process did not drastically increase media coverage of Supreme Court appointments. Using the Globe and Mail as a barometer for national coverage of judicial appointments from 1997 to 2014, the two judges to receive the most media hits were Justice Louise Arbour (appointed in 1999) with 40 stories and Justice Marc Nadon with 28 stories. On balance, the other appointments garnered an average of 8 stories. While the first parliamentary appearance of Justice Rothstein also garnered media coverage that was above the average of this reviewed period (13 stories), media provided the most coverage in situations of celebrity (Arbour as a high profile UN official) and sensationalism (Nadon’s constitutionally contested appointment). In other words, the new appointment process did not appear to bring the reader greater coverage of the judges appointed to the Supreme Court. Altogether, the added educative value of the parliamentary committee process appears limited at best.

Parliamentary Control over Supreme Court Nominations: Looking to the Future

At a time when the integrity and soundness of the Supreme Court’s appointment process is being questioned, what insight does this media analysis provide? First, and unsurprising to those who already follow media coverage of the Supreme Court, controversy frequently surrounded the new appointment process. Whether it was the Court’s gender imbalance, a controversial judicial candidate, or the appointment process itself, the media tended toward frames of conflict in its coverage. Second, while the first appointment under this new system stands out for the depth of its coverage, the media did not follow this lead for later appointments. It remains an open question, then, whether the process of parliamentary vetting actually provided a meaningful educative function. Together, the findings of this article are similar to other media studies of the Supreme Court that have found “coverage begins and ends with politics”.14

On this point, the circumstances that would bring a government to publicly abandon the reforms Prime Minister Harper once referred to as “an unprecedented step towards the more open and accountable approach to nominations that Canadians deserve”15 are interesting to contemplate. Certainly, the failed Nadon appointment and leaked shortlist appear to be the catalyst, but neither can be pinned to the new appointment process alone. The motivation behind the process’s abrupt end does not appear to be on account of its failure to achieve its goals (ostensibly to create a more transparent process and ‘introduce’ the public to the incoming judge), nor because the process resulted in aggressive questioning of the candidates (a critique frequently levelled at the American approach to appointing Supreme Court judges). Rather, as the media analysis here suggests, its fall may be attributed, at least in part, to an unintended consequence: by bringing parliamentarians into the appointment process, it also brought partisanship more explicitly into the process as well, which in turn led to media coverage focussed on controversy and disagreement. That is, the new appointment process created a series of “bad news days” for the government.

Where do we go from here? While all appointment processes will have their shortcomings, the Conservative government’s decision to revert back to an exclusively executive-driven process does little to address the lack of transparency and accountability in appointments – criticisms of the system made repeatedly in the media coverage considered here and by the government itself. While the Liberals’ election promise to “work with all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive, and accountable to Canadians,” means that Supreme Court reform is likely to return to the political agenda, what form it will take remains unclear.16 Ultimately, media analysis cannot answer the question of how members of the Supreme Court should be selected; however, it does show that the media’s portrayal of the process matters in terms of what the public is likely to learn about judicial candidates, parliamentary participation, and the Supreme Court. And, as is the case with all appointed institutions in an age that increasingly cheers the benefits of direct democracy, how the media frames the Supreme Court and its appointment process matters for what the public is likely to think about it.

Notes
  1. For a small selection of these criticisms see Irwin Cotler. “Conservatives Are Turning Back the Clock on Appointments to Supreme Court.” Toronto Star, June 10, 2014; Adam M. Dodek. “Supreme Court Appointments: Fix the Process or Scrap It.” The Globe and Mail, January 22, 2014; Editorial. “No Transparency in Côté Appointment.” Winnipeg Free Press, November 29, 2014; Carissima Mathen. “Supreme Court Appointments: Still More Questions Than Answers.” The Globe and Mail, June 4, 2014; Patrick J. Monahan and Peter W. Hogg. “We Need an Open Parliamentary Review of Court Appointments.” National Post, April 24, 2004; Jacob Ziegel. “Jacob Ziegel: The Right Way to Pick Supreme Court Judges.” National Post, August 19, 2011.
  2. Doris A. Graber. Mass Media and American Politics. Washington, DC: CQ Press, 2010.
  3. See Christopher P. Manfredi. Judicial power and the Charter: Canada and the Paradox of Liberal Constitutionalism, 2nd ed. Don Mills: Oxford University Press, 2001; Donald R. Songer. The Transformation of the Supreme Court of Canada. Toronto: University of Toronto Press, 2008.
  4. See Erin Crandall. “Intergovernmental Relations and the Supreme Court of Canada: The Changing Place of the Provinces in Judicial Selection Reform,” in Nadia Verrelli (ed.), The Democratic Dilemma: Reforming Canada’s Supreme Court. Montreal: McGill-Queen’s University Press, 2013, pp. 71-86; E. Preston Manning. “A ‘B’ for Prof. Russell,” Policy Options, 20 (3), 1999.
  5. For a full discussion of the Liberal Party’s proposed reforms to the Supreme Court’s appointment process, see Irwin Cotler. “The Supreme Court Appointment Process: Chronology, Context, and Reform,” University of New Brunswick Law Journal, Vol. 58, 2008, pp. 131-46.
  6. The first advisory committee, which was formed by Martin’s Liberal government, included MPs, members of the legal community, and the public. Subsequent advisory committees convened by the Conservatives were composed of MPs exclusively.
  7. For further details see Adam M. Dodek. “Reforming the Supreme Court Appointment Process 2004-2014: A Ten Year Democratic Audit,” University of Ottawa Faculty of Law Working Paper Series, WP 2014-07, 2014.
  8. Cotler 2008.
  9. Irwin Cotler. “Marc Nadon’s Supreme Court Rejection was Unprecedented, but Foreseeable.” National Post. March 21, 2014. Sean Fine. “Committee Grilling new Supreme Court Judge Faces Severe Time Crunch.” The Globe and Mail, October 10, 2013; Emmett Macfarlane. “The Supreme Court’s Remarkable Rejection of Marc Nadon.” Maclean’s. March 21, 2014 <http://www.macleans.ca/politics/the-supreme-courts-remarkable-rejection-of-marc-nadon/>.
  10. Toronto Star. “Harper government tosses aside openness at Supreme Court: Editorial,” The Toronto Star, December 1, 2014.
  11. There was also some coverage focused on the threat that the hearing process may lead to an “Americanisation” of Canadian judicial politics (e.g. “Even with the noises about the supposed “Americanisation” of our justice system, all parliamentarians handed this historic opportunity should have eagerly made the most of it.”). There were only 29 mentions of Americanisation in the 211 articles, so it is omitted from the content analysis.
  12. Dodek 2014, p. 50.
  13. Andrea Lawlor and Erin Crandall. “Questioning Judges with a Questionable Process: An Analysis of Committee Appearances by Canadian Supreme Court Candidates,” Canadian Journal of Political Science, forthcoming.
  14. Florian Sauvageau, David Schneiderman, and David Taras. Last Word: Media Coverage of the Supreme Court of Canada. Vancouver: UBC Press, 2005, p. 224.
  15. Bill Curry. “Top-court pick praised, review process panned,” The Globe and Mail, February 24, 2006.
  16. Liberal Party of Canada. “Supreme Court Appointments.” <http://www.liberal.ca/realchange/supreme-court-appointments/>.