Red Rover, Red Rover, I Call Rothstein Over

Harper Nominates Marshall Rothstein As New Supreme Court Justice

Canadian Press
Published: Thursday, February 23, 2006

OTTAWA (CP) - Marshall Rothstein of Winnipeg has been named as Prime Minister Stephen Harper's nominee to the Supreme Court of Canada.

The Federal Court of Appeal judge has agreed to face a first-ever public hearing before Harper confirms his appointment to the country's highest court.

"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 prepared statement.

"I believe he has the qualifications necessary to serve Canadians well from the country's highest court."

Rothstein, 65, specialized in commercial law in private practice before he was named to the Federal Court's trial division by Brian Mulroney's Progressive Conservative government in 1992.

He was elevated to the court's appeal division by the Jean Chretien Liberals in 1999 and has presided over a wide range of cases.

The Supreme Court overturned Rothstein's most celebrated ruling - the case of the so-called Harvard mouse, a genetically engineered rodent developed at Harvard University for use in cancer research.

The new judge will be the first in history to appear before a parliamentary committee - in a televised, three-hour hearing set for next Monday - to field questions from MPs before taking a seat on the court. Justice Minister Vic Toews will chair the 12-member, all-party panel.

"I am looking forward to watching the ad hoc committee's work and listening to Mr. Rothstein's answers," Harper said. "This hearing marks an unprecedented step towards the more open and accountable approach to nominations that Canadians deserve."

Harper has billed the hearing as an effort to bring "openness and transparency" to the judicial selection process.

Critics say it threatens to politicize the judiciary and spark the same kind of partisan bickering that has marred similar hearings in the United States.

Unlike the American process, however, the Canadian committee will have no veto power. Under the Constitution the prime minister is ultimately responsible for Supreme Court appointments, no matter who he consults along the way.

In addition to Rothstein, the others on the short list were:

-Peter MacKinnon, 58, former dean of law at the University of Saskatchewan, now president of the same school. The husband of former NDP provincial finance minister Janice MacKinnon, he has never held judicial office.

-Constance Hunt, 56, who specialized in resource law in private practice, then served as dean of law at the University of Calgary. She was named to Alberta Court of Queen's Bench in 1992 and Alberta Court of Appeal in 1995.

The list was supposed to be confidential, with only the winner's name made public, but was leaked to the media earlier this week.

The nine-member Supreme Court was left one judge short with the retirement in December of Justice John Major of Alberta. Chief Justice Beverley McLachlin had made it clear she wanted the bench back to full strength in time for the spring term that opens April 10.

Rothstein was widely seen as the favourite of the three short-listed for the post.

Considered one of the bright lights of Federal Court, his cases dealt with everything from immigration to national security, access to information, environmental regulation, trademark and patent disputes, taxation and contract law.

Rothstein wrote the majority opinion in a judgment that granted Harvard a Canadian patent on the mouse - dismissing arguments by church groups and environmentalists who contended that living animals should not be subject to patents.

The Supreme Court overturned the ruling in a 5-4 split decision in 2002.

© The Canadian Press 2006