Ketanji Brown Jackson’s confirmation hearing shows difference in how Canada and U.S. pick Supreme Court justices

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The nomination hearing under way for President Joe Biden’s first pick for the U.S. Supreme Court, Ketanji Brown Jackson, is nasty, brutish and long. Justice Jackson, who would be the first Black woman on the court if confirmed, has been asked whether she is soft on child pornography and terrorism; how religious she is; and when human life begins. By comparison, Canada’s own Supreme Court nomination hearings are polite, gentle and short. Globe and Mail Justice Writer Sean Fine explores the differences in the two approaches.

The long and the short of it: The U.S. allows time to search closets for skeletons, or what might pass for them. The 22 members of the Senate Judiciary Committee had about a month to prepare. Each member had 30 minutes for questioning the judge on Tuesday, and another 20 minutes on Wednesday. On Tuesday alone, Justice Jackson sat in the hot seat for roughly 13 hours. In Canada, members of a joint committee of the House and Senate with a representative added from the Green Party had five days to prepare (including a Saturday and Sunday) for the nomination hearing last June of Justice Mahmud Jamal, and were allotted five minutes for questioning (which includes the answer). The hearing lasted less than two and a half hours.

Advise and consent, or not: In the U.S. system of “advise and consent,” ratification by the Senate is required. Richard Albert, the Allan Rock Visiting Professor of Law at the University of Ottawa, explains that advise and consent is part of the “separation of powers” built into the U.S. Constitution. The intent, he said, is to thwart the concentration of power in the hands of any single person or institution, and to foster co-operation and “authentic deliberation.” But the process is being “distorted by the hyper partisanship in American political culture” into “inauthentic theatre,” he said. In Canada, the committee does not confirm the nominee. It is cabinet’s prerogative – in practice, the Prime Minister’s. The purpose of the hearing is informational and educational, Prof. Albert said. While the PM could appoint an acolyte or strong partisan, “it’s just not in the Canadian political culture” to do so. Prof. Albert, a Canadian, is usually based at the University of Texas at Austin.

The adult in the room: Canada uses an outsider – a law professor or retired judge – as moderator of the hearing, a role with no direct counterpart in the United States. This individual spells out the do’s and don’ts for committee members, and shuts down questions they view as beyond the Canadian pale. Marie-Eve Sylvestre, the dean of civil law at the University of Ottawa, oversaw the hearing in June for Justice Jamal. “In the best-case scenario, the moderator is playing a really laid-back role. The judge is able to draw the line. But there’s always this backup,” she said. She hasn’t followed the hearings for Justice Jackson, but she has observed earlier ones, and calls them “a circus. I feel like there should be this buffer in between the committee and the judge.”

The free-for-all versus the no go zones: Many of the questions Republican members of the Senate Judiciary Committee asked Justice Brown would not be tolerated in Canada. Questions on her view of abortion law, for instance, or her sentencing of child-porn offenders, or how she rates her religious faith on a scale of 1 to 10, would almost certainly have been shut down. “It is not appropriate to ask the candidate about pending matters, whether before the Supreme Court or other courts, or to ask him his opinion on highly controversial issues,” Jean-Louis Baudouin, a retired appeal-court judge from Quebec, told the committee when he oversaw the 2013 nomination hearing of Justice Marc Nadon. “Asking him to explain or, worse still, justify some of the decisions he has rendered during his career should also be avoided.” Questions about very personal matters – “except, perhaps, about golf” – should not be asked, he said.

The sparks: An intense moment occurred when Republican Sen. Ted Cruz of Texas, holding up a picture book for children ages 4 to 7, asked Justice Jackson, “Do you agree with this book that is being taught to kids that babies are racist?” She replied: “Senator,” then paused. The pause spoke volumes. In 2011, NDP MP Joe Comartin was skeptical of Justice Michael Moldaver’s promise to learn French and criticized Justice Marshall Rothstein on bilingualism. Justice Rothstein was not there to defend himself because he had been appointed five years earlier. Sparks flew.

The partisanship, as viewed by a retired Canadian Supreme Court judge: Louis LeBel of Quebec City, who sat on the court from 2000 to 2014, said the U.S. hearings sadden him. “I feel that it is sad in a certain way to see a court that is an important, great court, in some parts of its history, being more and more drawn into political disputes. That may impact on its independence. And when you listen to some of the statements of the present Chief Justice [John Roberts], it looks as if he is pretty worried about the way things are going, the trend that is drawing his court more and more into political debate, turning it into another organ of the state.” He added: “I hope that we retain our own traditions.”

The history: The first public hearing in the U.S. with a Supreme Court judge present to answer the Senate committee’s questions occurred in 1939 with Justice Felix Frankfurter. In Canada, they are relatively new. The first was in 2006, with Justice Rothstein of Manitoba. Stephen Harper was the prime minister who held the first such hearing, but he stopped holding the hearings after The Globe and Mail published the secret short list from which he had chosen Justice Nadon in 2013. The U.S. Senate judiciary committee also holds hearings for 870 other federally nominated judgeships; north of the border, judicial nomination hearings are only for the Supreme Court of Canada.

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