The Reminder is making its archives back to 2003 available on our website. Please note that, due to technical limitations, archive articles are presented without the usual formatting.
Judicial Appointments: Political or Not? Readers may recall that during the January election campaign, Paul Martin attacked Stephen Harper for his supposed views about judges, warning voters that Harper would appoint radical rightists to the courts. Harper had mused that as most of the judges were appointed by the Liberals, the courts would be a check on his administration. Martin tried to convince Canadians that this was an attack on the courts, and would be bad for Canada. He was partially successful in scaring Ontario people, and Stephen only won a minority. Shortly after becoming PM, Harper and his Justice Minister announced that the next Supreme Court Justice would be selected from the Liberal list of three from Western Canada. On the list was a candidate from each of the Prairie provinces. When I saw the list, I knew it would be Marshall Rothstein from Manitoba, the first Manitoban since Brian Dickson was appointed by Trudeau in 1973. Why Rothstein? Apart from being far and away superior in intellect and experience, a Federal Judge for 14 years and a judge with the Court of Appeal for the past seven, Marshall has impeccable Conservative credentials Ð at least in the past as a law student, and later as a young lawyer with a prominent Winnipeg firm. A member of a prominent Winnipeg family (his family owned the Marlborough Hotel, among other businesses) Marshall and his wife, Sheila, a doctor, were very active in PC Youth politics in the province in the '60s and '70s. Sheila worked on Stewart McLean's campaign for PC leader in 1967-68, and I recall a very pregnant Mrs. Rothstein waving a sign and cheering on Stewart the day of the leadership vote at the Winnipeg Auditorium. Of course at that time the Tories were in power and McLean was Manitoba's Attorney-General. Marshall was as meticulous and intense in politics as he was in law, but with a great sense of humour, something like Woody Allen. He ran Tommy Stefanson's hard-fought campaign for Youth president and worked in several provincial and federal elections. He was always worried, and his most famous statement was, "We're gonna lose!" When we met Marshall, we would shout, "Marshall, we're gonna win!" Rothstein became a very prominent lawyer, perhaps Canada's leading expert on transportation law, and taught for 22 years at the U of M. Law School, instructing such notables as Justice Minister Vic Toews. At his law firm, he was noted for turning on a stop watch when he answered the phone Ð so he could bill clients, of course, for his time. When we called him we would always say, "Marshall, turn off the clock!" In 1992, he was appointed to the Federal Court and seven years later to the Court of Appeal. He is noted by his colleagues as an excellent judge who writes straightforward, easy-to-interpret decisions. His appointment to the Supreme Court can only strengthen it. A good appointment, Prime Minister Harper! One may ask, How did Rothstein get on the Liberal list? Of course as a judge he has not been politically partisan for 14 years, but the Liberals are notorious for appointing Liberal lawyers to the bench. Some cynics speculate that it was all for show, and one of the other two would have been appointed, but they could point to the list of three and claim they were non-partisan, even though Rothstein is far superior to the other two. For the first time, and as promised, Harper set up a parliamentary committee of 12 MPs to question the new appointee on February 27. This is faintly similar to the U.S. judicial appointments, where presidential nominations must be approved by the Senate. Canada's committee will have no such power, at least not this time. This is an experiment in making such appointments more transparent, and subject to parliamentary approval perhaps in the future. In the past, such appointments were just announced by the Prime Minister with no say by MPs. Harper, however, is also giving another message Ð that Parliament is supreme in the country, and the courts are not law-makers but rather law interpreters. More to come.
