There has been little to cheer, and seemingly less to emulate, in Brett Kavanaugh’s Supreme Court confirmation hearings. The process has divided the United States and damaged the prestige of the court. It has been full of political grandstanding and partisan attacks.
But for all that, the Kavanaugh hearings were also illuminating. His confirmation process has taught us an extraordinary amount about the man’s judicial views and personal character – much more, it bears noting, than we have ever known about a Canadian Supreme Court nominee.
Indeed, unlikely as it sounds, the radical transparency of the Kavanaugh nomination has highlighted a corresponding weakness in Canada’s method for elevating men and women to our highest judicial body.
A Coles Notes summary of the Kavanaugh proceedings would run like this: The Senate confirmed the judge and Bush administration veteran by a vote of 50-48 on Saturday despite three allegations of sexual abuse against him, including one presented by Christine Blasey Ford under oath before the Senate Judiciary Committee.
Justice Kavanaugh defended himself in an overwrought, tearful speech before the same committee, accusing Democrats of plotting to derail his nomination with the assault claims. This has all been highly irregular – the most contentious confirmation process since Anita Hill accused Clarence Thomas of sexual harassment in 1991.
American Supreme Court nominees are always grilled about their past rulings and legal philosophy. But almost never do the hearings descend into the kind of circus we’ve just watched. Instead, they are often powerful civics lessons, reminding Americans of the inevitable human element in even the loftiest judicial deliberations.
But even at their worst – and Justice Kavanaugh’s qualifies – the hearings serve a useful function. The public learned in the past few weeks that their next Supreme Court justice is highly partisan and dishonest about his past (he was caught in several wild implausibilities about his drinking and the sexual innuendos he made at the time of the alleged assault against Prof. Blasey Ford).
Since Justice Kavanaugh has been confirmed anyway, that will leave a stain on the court. But surely it’s better to know than to have such a person hiding in plain sight in a position of such enormous power.
Canada’s process for appointing Supreme Court judges has changed over the years, but one constant has been the political system’s preference for not knowing too much about them. Parliament has had limited say in the process – the prime minister has full power over appointments – but Stephen Harper intermittently brought his prospective Supreme Court nominees before an ad hoc parliamentary committee.
Similar hearings have carried over into the Justin Trudeau years, but they are far too limited to teach us much about the people who will have final say over the meaning and scope of our Constitution. The hearing typically lasts just a few hours, is held on about a week’s notice, providing little time for parliamentarians to dig into the nominee’s record, and passes without much fanfare.
Observers disgusted by the Kavanaugh debacle will be tempted to say fanfare is the last thing Canada needs in its judicial appointments.
We should remember, though, that in Canada, a Kavanaugh would likely have sailed onto the Court without anyone learning about his unjudicial temperament.
It’s for that reason that we favour more fulsome public hearings for Supreme Court appointments, with more time for questioning and more advanced notice.
Canada’s political and legal cultures would help insulate us from the worst of the U.S. process. We lack their level of partisanship; candidates for our Supreme Court are suggested to the prime minister by an impartial panel, not by ideological fire-breathers such as the U.S. Federalist Society; our judges are less polarized along political lines; and the impossibility of voting down an appointee would, one hopes, deter MPs from grandstanding.
Fears about politicizing the Court are understandable but misplaced. Supreme Court Justices are already powerful political actors who bring ideological baggage and idiosyncratic personalities to the bench. However great their efforts at impartiality, all of that goes into their rulings and our law. Right now, we simply prefer to pretend otherwise.