Canada's second-ever public hearing for Supreme Court nominees showed the two prospective judges, Mr. Justice Michael Moldaver and Madam Justice Andromache Karakatsanis, to be humane, humble and intelligent. Stephen Harper deserves credit for choosing them, and for creating the public hearing (first for the 2006 appointment of Mr. Justice Marshall Rothstein of Manitoba). But he should improve the process so that more probing questions can be asked next time of a nominee's views on the law.
Refreshingly, the two nominees were not treated as if they were made of the most delicate glass. There were some challenging questions. But these were not, for the most part, about their perspectives on law, except in the most general way – allowing for two smart people to answer in very intelligent, but general, terms.
The main challenge was to Judge Moldaver over his inability to speak French. The New Democrats on the Parliamentary ad hoc committee pressed him on why he hadn't bothered to learn it. He replied, disarmingly, that he never in his "wildest dreams" expected to be on the Supreme Court – though he promised to study it, with help from his brother, who has a PhD in French literature. NDP MP Joe Comartin asked whether the French spoken by Judge Moldaver in his opening remarks had been written for him, and whether he'd understood any of Mr. Comartin's French. This was shabby and disrespectful.
In the United States, the prevailing view is that any one Supreme Court judge can have an enormous impact on the country. The best questions are seen to be specific ones on substantive legal issues. Why shouldn't Canadians know where judges stand on, say, where to draw the line between accuseds' rights and community protection? Judge Moldaver said he is cautious about striking down government laws. When does he feel government goes too far? Judge Karakatsanis wrote a ruling on privacy rights in an Internet porn case. Why not ask her about it?
The hearing was illuminating, but it could be even more useful, if committee members were given more than a day and a half to prepare. The hearing should be more than an opportunity for a prime minister to parade his selections. Everything should be on the table.