February 23, 2006

Stephen Harper says that three hours of public questioning of one of three nominees for the Supreme Court of Canada will make no difference to our system of selecting judges.

If so, why do it?

I am trying to imagine what possible questions could be asked of the nominee that would not disqualify her or him.

According to Harper, the MPs on the committee are free to ask anything they wish. One assumes that would include: "Do you favour a national gun registry?" Or: "Do you approve of same-sex marriage?" Or: "Should women be allowed to have abortions?"

A smart nominee would answer that it all depends on the case before the court. A polite nominee would answer "yes" or "no," while adding that personal opinion is irrelevant to a judicial opinion. Like the presumption of innocence, a judge's disregard of casual preferences is the golden thread that runs through justice. A hard-headed nominee would refuse to answer.

But Harper, who will then privately chat with any committee members he chooses, would not be the man I think he is to let through a nominee who says "yes" – or is likely to think "yes" – to all three questions.

The judicial crisis spreads like a red wine stain on the carpet. Get the salt! Try Canada Dry! And then comes the inevitable call: Get me a Conservative MP! For Harper can humiliate the nominee and disgust the nation by consulting pals, turfing the candidate and saying: "Send us the second one."

He says he'd be surprised to do it, but notes than he can. That's not public. That's backroom.

At this point we become Americans, minus even any constitutional rules governing the committee. We will have a politicized court.

The process will actually be more shameful than this. MPs will resort to stealth questions. "Do you consider your internal organs to be private? Liver? Spleen? Um, uterus?" A male nominee can dodge this last bit, only to hear: "Of course you don't have a uterus. Silly me. So hypothetically, is someone else's uterus privatized or government-run?"

Stealth questions are something we frequently use in our private lives, on a first date or a job interview, but there's something Orwellian about welcoming them into the public sphere.

If you are sharing a candlelit dinner with a person whose, how shall I put this, organs you want to get internal with, by all means ask her to name her favourite movie.

If it's: "Father of the Bride! – No! Father of the Bride II was even better, I don't know why people say Steve Martin is prostituting his talent to finance his art collection!" either skip dessert and take her back to your place or run out of the restaurant screaming.

But if you got this answer from someone planning to judge big time until age 75, you have a real problem.

Fine, your judge is unfit for polite society, join the crowd. But the point is, he's not fit to judge those who are – as is apparent to any Canadian ever trapped on a plane with any Steve Martin movie made since 1991's L.A. Story.

And what if the judge answers sonorously: "Frankly, I reserve my greatest admiration for the Polish filmmaker Marcel Lozinski." Everyone groans inwardly. Spare us the intellectuals.

But this was a trick answer. Lozinski's documentaries are splendidly accessible to viewers of all ages and IQs. A clever MP would see through this verbal feint and realize the humanity and wisdom of the judicial Lozinski fan.

And there's your problem. Name a clever MP. Please don't say Art Hanger, member for Calgary Northeast, or I'm afraid I shall have to ask you to leave this column.

My point is, this way madness lies. Direct questions won't work. Stealth questions won't wash. Stealth answers are daft.

Can't we just do the sane thing and not have a hearing beyond the fair-minded semi-investigative process we already have:

• Did the judge lie on his resumé?
• Who built that mysterious new deck after he found for the handyman in McSporran1991's Family vs. Silly P Cedar Flooring?
• Has he ever had a beer or two and mistaken a quail for a 78-year-old man in an orange baseball cap?
• Can he slow dance?

That sounds sensible to me.

You could always use my test of character, which is: "Do you miss Princess Diana?" I do. I still mourn her deeply and I don't really like anyone who doesn't, which is why I never ask that question, especially of my husband, who rolled over in bed when I came upstairs sobbing from watching CNN at 2 a.m. on Aug. 31, 1997, and said the equivalent of: "Yeah? And?"

We are still married.

There are some questions best left unasked. I say leave the judges alone. Harper spilled the wine. The bottle's lying there, glugging onto the rug. You just try getting the wine back in. Too late now.