Parliamentary Committee Questions Mr. Justice Rothstein

Today, a parliamentary committee questioned Prime Minister Harper's nominee to the Supreme Court of Canada, Mr. Justice Rothstein of Federal Court of Appeal. As I previously wrote here, this is the first time this has occurred.

According to press reports, the process appears to have gone smoothly. The committee was co-chaired by the Minister of Justice, Vic Toews, and constitutional scholar Peter Hogg. According to the CBC report here, Professor Hogg advised the committee that Mr. Justice Rothstein could not answer questions about issues that may come before the court, including things such as his views on abortion and same-sex marriage.

The CTV report here has the headline "Judges should apply law, not make it: Rothstein." I have some trouble with this notion that judges may not make law. The common law is judge-made law, albeit made incrementally. If judges had not made law over the last several hundred years, I fear that we might still have trial-by-ordeal. I do appreciate that there is a difference between private law disputes, such as contract cases or negligence, where historically the courts have taken a leading role in developing the law, and public law issues involving broad economic and social issues, where Canadian courts have been deferential to Parliament and provincial legislatures. But I don't think that there is a bright line between interpreting law and making law.

For an in-depth look at Mr. Justice Rothstein's nomination and this historic process, Slaw.ca has done an outstanding job in bringing together interesting materials, from parliamentary debates over selection process, to his decisions as a Federal Court Judge, and how the Supreme Court of Canada has decided appeals from his decisions.

Slaw invited readers to put questions that they would like to ask Mr. Justice Rothstein in the comments. There are some interesting questions. I think that I am most interested in a nominee's life experiences, not only as a lawyer and judge, but also other things that the nominee has done outside of law, and how a nominee has met life's challenges. For example, according to the CTV report, Mr. Justice Rothstein discussed his experience as a waiter working in a dining car on a train between Winnipeg and Vancouver. I think it is helpful if people know that judges do not live in ivory towers, devoid of experiences other than law.

The Slaw "Marshall Rothstein Pages" are here. Michel-Adrien Sheppard at Library Boy also has some good links here.

I am still ambivalent about this process, but I will keep an open mind.