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, S Scrittinize top ‘court nominees: judge so. is member * of Supreme Court doesnot oppose _ ‘opening up process r, BY CRISTIN SCHMITZ For the-first time, a sitting judge on: ‘Canada’ s high court has suggested that parliamen- tary scrutiny of Supreme Court judges béfore their appoint- ment cotild-be worthwhile if it ’ boosts public confidence. ~ Supremeé Court Justice Jack Major said in a rare interview this wéék’ heWwould not oppose. Opening up the closed selection procedure for the top court if it did not diminish the calibre of judges appointed or damage the court's r réputation. “If it would i improve. the pub- lic perception ‘of the institution it would be difficult to say. you shouldn’t ‘do it,’ said the 71- year-old Albertan, who.recent- ly marked his 10th anniversary on the court: : After “Gerard La Forest |. stepped: “down from the Supreme | Eoiirt in 1997, he be- came its orily alumnus to en- dorse public vetting of nomi- nees for-the. powerful nine- judge court.- * Judge Major doés not go that far, but hé-ig the first sitting member Of the Supreme Court 4o concedéthere might be mer- it to reforming the secretive ap- pointment-process, a proposal made las€-Oétober by Liberal leadership.“ contender Paul ‘Martin. ’ +, “I'suppose,it would be just f foolish to'say-we have a system ‘that’s the best t and youshould- xt entertain any suggestion of. ‘change,” Judge. Major said in an ‘interview swith The Lawyers Weekly. wWeshave: a system at the moment that some people ‘complain . about the lack of “ Judge: St@! unconvinced, but keeping an open mind Continued from page A1 Judge Major said the former finance minister and other advocates of reform have yet to offer sufficient specifics about a parliamentary committee’s mandate and procedures to satisfy him that vetting of Supreme Court nomi- nees by politicians would not degener- ate into a damaging partisan exercise aimed at embarrassing the government rather than at informing Canadians. “T guess there is not enough meat on the bones of this thing yet to really com- ment that ‘yes I am in favour’, or ‘nom opposed,’ ” he remarked. If “they can flesh it out to satisfy me that what we'd hope to be an improvement, would be an improvement, then Id say ‘go ahead and doit?” . Judge Major said hei is “sképtical” of the insistence by some Supreme Court justices that they would have turned down their posts had they been re- quired to submit to advance screening by.a parliamentary comunittee. “T think most of the ones that I’ve - heard take that position ... would go be- fore a committee if that was the pro- ceeding ... because I think most lawyers and judges think it’s a substantial ap- pointment and it’s quite an honour to be picked, and are you going to be so. touchy that you wouldn’t go before a committee after you are picked?” He added: “Would a useful (nomina- tion) hearing have been a deterrent to me? The answer is ‘no.’” However, Judge Major emphasized that in his mind it is still an open ques- tion whether it would be useful to the public and to the justice system if politi- cians were to grill Supreme Court nom- “ ‘transparency. If there is a better ‘System, ifa parliamentary com- Mnittee can: improve it, then I ‘think the most bull- headed per- ‘son would say ‘Yes, let’s do it ... ‘the new way’.” ” ' ., Mr. Martin’s plan would re- | ‘quire a Tawyer or judge who: ‘was nominated to the Supreme’ ‘Court by. the. prime minister to janswer .questions before a ‘standing committee of the ‘House of Commons. Tit would-not ‘be an Ameri- »can-style. “confirmation” “process..because the prime ministef would retain power ito appoint, the candidate, ‘whateveritie committee’s rec- /ommendation. inees. . “I don’t know what kind of questions they could ask that the appointee could answer. They couldn’t ask: ‘How would you decide such and such a case?” be- cause the stock answer, in the U.S, at least, is: ‘Well, I have to wait and hear the facts.” Given the pressures of politics, Judge Major suggested a parliamentary com- mittee might understandably feel com- pelled to attract media attention by delving into the personal lives of Supreme Court nominees and their families, or by focusing « on divisive top- ics, such as abortion. “The first few (Canadian hearings) I think everybody would be on their best behaviour to show how civilized we were and how this is a good thing ... but how long would that last in an adversarial par- liamentary system?” he asked. “In order for the public to become engaged, the committee would have to spark a contro- versy, that’s what wé see in the US.” Judge Major acknowledged public ‘hearings might combat the misconcep- tion that Supreme Court judges are “plucked out of the air at the whim of the prime minister.” - Prime Minister Jean Chrétien has - firmly resisted any change to the 127- year-old tradition that allow\s him to exercise his exclusive prerogative to name Supreme Court justices without input from Parliament. The prime min- ister picks from a short list prepared by the justice minister after extensive, be- hind-the-scenes consultation with the legal community. Despite a growing clamour for a more transparent and accountable se- lection process by the Canadian Al- liance, provincial justice ministers, legal academics and newspaper editorialists, Canadians often know nothing about the successful candidate until after the government announces its choice. An Environics poll this year revealed the public wants more say in shaping .the court, with two out of three people. supporting the election of Supreme Court justices. Mr. Martin pledged to create a “re- «ssponsibly-executed” process of public review of Supreme Court nominees, not a “partisan circus,” but he did not say how he would achieve this. His pro- posal was trashed by the ex-chief jus- - tice of Canada, Antonio Lamer, who warned a “political circus” would in- ‘ evitably ensue. It’s a view-shared by ~ . Many incumbent .and ex-Supreme Court justices. Mr. Lamer and former Supreme Court judges Peter Cory and. Claire LHeureux-Dube have said in the past they probably would have turned down the job liad they been forced to go