PHOTO BY LISA LIGHTBOURN/UNIVERSITY OF TORONTO

A U of T Law-hosted conversation between Elena Kagan, Associate Justice on the Supreme Court of the United States, and Rosalie Abella, Canadian Supreme Court Justice, focused largely on the state of the American judiciary, as well as the recent controversial hearings of US Supreme Court Justice Brett Kavanaugh.

The event took place at the Jackman Law Building on November 12 and was livestreamed on YouTube.

Abella began the conversation by asking Kagan, “I think it’s on everybody’s mind who watched the recent hearing: Do you like beer?” referring to Kavanaugh’s repeated phrase during the Senate proceedings — eliciting a laugh from the audience.

Kagan dodged the question and the discussion moved on to comparisons between the two judicial bodies of Canada and the US. Kagan noted that although confirmation hearings allow the public to get to know the process and the nominees, they have some problems.

“It seems good to me from the perspective of transparency of governance, people [senators] taking their constitutional role seriously and having an opportunity to see a person, and to try to figure out what kind of justice she or he would be, and in the abstract, I think that’s a good thing,” said Kagan.

“In the concrete, it’s a little hard to watch any of these hearings and think they accomplish all that much.”

In Canada, justices are appointed by the governor general according to the prime minister’s recommendation, unlike in the United States, where the president nominates a person who must be subsequently confirmed by senators.

Kagan also said that in previous years, many nominations to the US Supreme Court have had wider bipartisan support, noting that judges received support from members of a party that did not nominate them. More recently, debates have become more politicized and divided.

“I do think there’s room for people to listen to each other and try to find common ground and try to find areas of compromise,” said Kagan. “The way to find agreement and the way to find consensus, is not to keep talking about those big questions, because you’re just going to soon run into a wall, but to see if you can reframe the question.”

Kagan noted that after Justice Antonin Scalia’s death, the court worked very hard to not come under gridlock and get stuck with tied votes by only having eight members. In the two-year period, Senate Republicans refused to consider Judge Merrick Garland, a nominee of President Barack Obama.

During the Q&A session, law student Teodora Pasca told Kagan that she “almost regretted” asking her question, but she said that she and many people she knew in the legal profession watched the Kavanaugh hearings “with a little bit of pain in our hearts.”

“I’m wondering what you think the role of the Supreme Court is,” she asked, “and how it can be considered legitimate in its treatment of women who have experienced violence, when you have not one, but two justices who have been levelled with credible accusations, and the appointment process has put them forth.”

The two justices referenced are Kavanaugh, who has been accused of sexual violence by Christine Blasey Ford, Deborah Ramirez, and Julie Swetnick; and Clarence Thomas, who was accused by Anita Hill in 1991.

Kagan replied, “You’re right, you should not have asked me that question, and I’m sorry to say that but there are some questions that — I’m part of this institution, I care about it a lot, I care about my colleagues a lot and that’s something that I’m not going to be talking about.”

Disclosure: Teodora Pasca was The Varsitys Comment Editor from 2016–2018.

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