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Canada U.S. Supreme Court’s partisan rhetoric should be ‘toned way down,’ Justice Kagan says

The partisan process for judicial nomination hearings in the United States is harmful to the Supreme Court, one of its judges told a Canadian audience on Monday.

Speaking to University of Toronto law students a little more than a month after a fiery, emotional hearing involving U.S. President Donald Trump’s nominee, Justice Brett Kavanaugh, divided the country over an accusation of sexual assault, Justice Elena Kagan declined to address that hearing directly.

But she said that, 25 or 30 years ago, nominees with strong views such as Antonin Scalia, Ruth Bader Ginsburg and Stephen Breyer received wide support during their Senate hearings. And relatively uncontroversial recent nominees – such as herself – have managed to win only a small number of votes from members of the other party. (She did not mention that the Republican Party effectively blocked former president Barack Obama from appointing a replacement for the late Mr. Scalia, leaving the court with eight judges for two years.)

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Supreme Court of Canada Justice Rosalie Abella, left, and U.S. Supreme Court Justice Elena Kagan participate in a public discussion at the University of Toronto on Nov., 12, 2018.

Tijana Martin/The Globe and Mail

“I think it’s bad for the court and it would be better if it was all toned way down,” she told 200 students who packed a law school theatre on Monday to hear Justice Kagan in conversation with Justice Rosalie Abella of the Supreme Court of Canada. Justice Kagan said the court is often viewed as politically partisan in the same way as Congress is – which she denied is the case.

“So something very dramatic in the American political system has changed with respect to Supreme Court justices,” said Justice Kagan, who was appointed by Mr. Obama in 2010, and before that had been the first female solicitor-general of the United States, and before that Harvard Unversity’s law dean. “It’s hard to know how to ever get back there.”

Justice Abella, who like Justice Kagan is a liberal-minded judge, said she is concerned that the “tone” found in some U.S. Supreme Court judgments – such as comments that the other side is making it up as they go along – is finding its way into Canadian judgments, and into the rhetoric used by some lawyers.

“So when it happens on our court, we’re very conscious,” Justice Abella said, “and see if we can persuade colleagues to take that out.”

Justice Kagan said the same thing happens on her court. “Sometimes people will call and say, ‘Can you take this out?’ and almost always people do.”

Justice Kagan said that the late Mr. Scalia had been the best writer on the modern U.S. Supreme Court, but also a “sharp” one. And not the only one, she said, including herself in the group of judges who may have gone too far at times. She added that judges in divisive times need to be careful not to inflame matters. “In a pretty polarized time, a time where you hope the institutions of governance find ways to bring people together, rather than drive them further apart, and where you fear they’re not accomplishing that objective very well, that in such a time we [should] take two steps back before we publish a really acerbic dissent or a really acerbic majority opinion.”

She added: “I recognize that we should not pour fuel on the fire.”

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She took her own advice not to inflame. A first-year law student, Teodora Pasca, asked Justice Kagan how the court could claim legitimacy on issues involving violence against women, now that two of its nine members have been accused of sexual misconduct. (Justice Clarence Thomas is the other one; at his nomination hearing in 1991, law professor Anita Hill, accused him of sexually harassing her. He denied it.)

“I’m a part of this institution,” Justice Kagan, 58, replied. “I care about it a lot and that’s something I’m not going to be talking about.”

Nomination hearings are held for the Supreme Court of Canada, but in a much more limited form than south of the border. Justice Kagan said she still believes they are necessary.

Senators and the public “should have the ability to take a person’s measure,” she said, but “it’s a little bit hard to watch any of these hearings and think that they accomplish all that much.”

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