On judging the judges

I didn't think anybody would waste their breath trying to argue that the Harriet Miers nomination fiasco was a mark of a system worth copying. But leave it a prominent Con to prove me wrong:

Conservative justice critic Vic Toews said yesterday that Ms. Miers's move, rather than reflecting badly on the U.S. system, "demonstrates the accountability of the president to the elected houses for his nominations." The fact that Ms. Miers was forced to drop out after her qualifications were questioned "demonstrates that transparency is a good thing," he said.

It's bad enough that Toews claims that the reason for the withdrawal was based on "the elected houses" rather than pressure groups from the religious right. But it should be all the more obvious that it was an initial need for political calculation that led Bush to nominate somebody who was seen across the spectrum as something short of the best available candidate. And despite that consensus, Miers may well have been confirmed if she'd gone up for a vote, as senators themselves would have cast their votes based on their own political considerations rather than truly answering the question of whether anybody else was a better candidate.

Meanwhile, the arguments against questioning judicial candidates in Parliament aren't based only on criticism of the U.S. process. A realistic appraisal of Canada's political scene suggests that Canada's own political system isn't well-designed to handle such a process:

One roadblock that may slow any future move to give Parliament a bigger role in the selection process is the committee system itself, said Frederick Vaughan, a retired political science professor from the University of Guelph and author of two books on the Supreme Court.

"I think the parliamentary committee system as it works in Canada is in such disrepute that I can't imagine how it would improve the selection of judges," he said. Committee sessions are so "bitterly partisan" that it would add little to the nomination process to subject a candidate to them, he said.

It's easy to forget at times that the Canadian system is unlike the U.S. system in that it's characterized almost entirely by party-line votes and rhetoric rather than individual positions and perspectives. Meaning that as terrible as the partisan wringer can be in the U.S., it could be many times worse here. And that's doubly unjust when past nominations in Canada have been far less politically-based than those to our south.

There are always some political aspects to Supreme Court jurisprudence. But it doesn't improve matters at all to explicitly politicize the process in response, particularly in the absence of any plausible need to change the status quo. The only end result of a U.S.-style hearing process would be to drag Canada's top judicial institution closer to the low levels of trust associated with typical partisan political wrangling. And we're all worse off if the effect is to cause less respect for the law and the people who interpret it.