Harper nominates Rothstein for Supreme Court
February 23, 2006
Canada Supreme Court Chief Justice Beverly McClaughlin
A well-connected Tory, the 65-year-old Manitoban was appointed to the Federal Court in 1992 by then prime minister Brian Mulroney and elevated to the Federal Court of Appeal by Jean Chrétien.
The other two candidates on a short list prepared by the Liberal government before its defeat in the recent federal election were Constance Hunt of Alberta's Appeal Court and University of Saskatchewan president Peter MacKinnon.
"Marshall Rothstein's candidacy was scrutinized by a comprehensive process initiated by the previous government that included members from all the political parties," Harper said in a news release Thursday.
"I believe he has the qualifications necessary to serve Canadians well from the country's highest court."
An all-party committee of parliamentarians will put Rothstein through a three-hour question-and-answer session that will be broadcast on television on Monday.
Harper, who announced the new selection process this week, retains final power to approve or quash the nomination.
Critics charge the public questioning will lead to the politicization of the process, while supporters maintain it gives Canadians a glimpse into the minds of the top judges.
Wrote high-profile 'Harvard mouse' ruling
Rothstein has written Federal Court decisions on a wide range of issues, from immigration cases to whether a university has the right to patent a genetically modified mouse.
In the mouse ruling, the decision penned by Rothstein said Harvard's new mouse qualified as an "invention," though church groups and environmentalists had argued against the patenting of life forms.
The Supreme Court of Canada later overruled the decision in a 5-4 ruling.
Rothstein was leading candidate
Government officials were tight-lipped about the prime minister's choice in advance of Thursday's announcement, but insiders said Rothstein's strong record on the bench and his deftly written legal decisions were consistent with Harper's view that judges' duties hinge on applying the law, not making it.
"I think Mr. Harper will be looking for a judge who, in those close calls, will be more deferential to both Parliament and the provincial legislatures," said Ted Morton, a former Canadian Alliance party policy chief who has written extensively on the courts.
Gerald Gall, a University of Alberta law professor, agreed that Rothstein was the frontrunner for the post left vacant by retiring Supreme Court Justice John Major.
"If you follow tradition and you follow custom, it will not be an Alberta position because we've had two judges in succession, Justice Major and Justice [William] Stevenson, from Alberta," said Gall.
Nominee led commission, task force
Rothstein was born in Winnipeg on Christmas Day in 1940. He married Sheila Dorfman of Montreal in 1966. They have four children.
He led a commission of inquiry into compulsory retirement in Manitoba in 1981-1982 and a ministerial task force on international air policy in 1990-1991.
Rothstein has also lectured in law at the University of Manitoba. One of his former students, Vic Toews, is now Canada's justice minister.