An overview of judicial appointment processes in Canada vs America
Believe it or not, the consequences of the 2016 US Presidential Elections will go beyond the battle for exclusive rights to air “The Inevitable Primetime Talk Show Hosted by the Runner Up” (working title). Postponed punditry aside, the next US president could be responsible for appointing four supreme court justices, who will forever shape the nation’s legal trajectory. Like Canada, the US executive branch has considerable say in choosing members of the supreme court, a prerogative that comes with its own set of political and personal problems. Yet, Canada and the US differ in their processes and authority by which they appoint the individuals to sit on their respective courts of last resort.
Following Justice Scalia’s death in early 2016, Republicans in the Senate vowed to block President Obama’s nominee, Merrick Garland, and instead decided to wait it out in the hopes of having more Republicans in office (and possibly the White House) come 2017.
But President Obama is not the only North American leader in recent memory to struggle in securing his pick for a supreme court justice. In a 2012 controversy known as the Nadon Affair, the Supreme Court of Canada ruled that Prime Minister Stephen Harper’s nominee, Marc Nadon, was ineligible to serve on one of the court’s seats reserved for Quebec, despite having been a member of the Quebec bar and already being sworn in as a supreme court justice, because he had been out of the province for two decades. Oopsies.
In addition to the requirement that three out of the nine justices be appointed from Quebec’s court of appeal or superior court, Canada’s Supreme Court Act outlines other requirements for justices, including functional bilingualism (meaning you shouldn’t require a translator’s presence for oral arguments, written judgments, or to fill the void of loneliness that will inevitably consume you as one of the nation’s top arbiters of justice).
The United States Supreme Court (above) gets its authority from Article III of the Constitution: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Part of the rationale for reserving Quebec seats is that the province’s civil law is enshrined in civil code, i.e., rules and regulations, as opposed to the other provinces’ common law systems that rely on decisions from previous cases to inform judges’ interpretation of the law.
Canadian convention calls for three justices to be appointed from Ontario, two from “Western Canada” (British Colombia, Alberta, Manitoba, and Saskatchewan), and one from the Atlantic provinces.
Canada ‘overhauls’ judicial appointment process to promote diversity, transparency
As opposed to the US, Canadian parliament as a whole is not responsible for approving nominees, which removes some of the dog-and-pony-show politics from the process.
While it used to involve a confidential shortlist and private meeting between the PM, cabinet, and governor general (who represents the queen), Canada recently modified its judicial appointment process as part of Trudeau’s efforts to make the process more diverse and transparent.
The judicial appointment process is as follows, reflecting Trudeau’s recent changes.
- Judges from a superior court or members of the bar for more than 10 years may apply to become a supreme court justice. Applicants fill out a lengthy questionnaire that includes questions on their indigenous status and sexual orientation.
- An independent, seven-member advisory board comprised of lawyers, judges, scholars, and non-legal members — recently chaired by former PM Kim Campbell — reviews applicants and submits a (non-binding) shortlist of three to five candidates.
- Cabinet ministers along with provinces and territories’ attorneys general, several House of Commons committees, and Canada’s chief justice review the shortlist.
- The PM nominates a candidate from the shortlist.
- Members of parliament and senators from various parties interview the nominee via an official Q&A before they are officially appointed and sworn in.
The prime minister’s announcement about ensuring a more “diverse bench” and abolishing the “secretive backroom process” had some critics worried that the new government would forgo the customary regional diversity in favor of other types of diversity.
But fears quelled after the most recent appointment in Canada was appeals judge Malcolm Rowe, an “avid kayaker and sailor,” (and also a white dude) who became the first justice from Newfoundland appointed to the supreme court.
While Canada’s top court has so far ensured regional diversity, it is often criticized for its lack of racial diversity, leading some critics to refer to it as a “judiciary of whiteness.”
US judicial appointment process dependent less on legal tradition, more on political apparatus
Like Canada, the US suffers from diversity in its top courts. Unlike Canada, the US does not mandate eligibility criteria for potential justices, and likewise ends up with a relatively homogeneous supreme court. Despite enjoying some racial and gender diversity, the current backgrounds of the supreme court are relatively similar, most of whom graduated from either Harvard or Yale, hail from either the East or West coast (as opposed to “the Heartland”), and previously taught law school.
Although the US Constitution grants the president the ability to nominate justices and the senate the ability to approve them, it says little else about the judicial appointment process. However, typical appointments are subject to the following steps.
- POTUS consults with advisers, senators, and members of the bar to form a shortlist and then chooses a nominee. (Sometimes, names on the shortlist are leaked to the press, which fortuitously offers the administration a glimpse into how their nominee will be received.)
- POTUS officially announces the nominee to the Senate Judiciary Committee, comprised of 20 senators who are in charge of holding a hearing for the nominee. (The committee also has jurisdiction over other issues like federal criminal law, human rights, and internet privacy.)
- The hearing/Q&A sesh takes place in the full senate.
- Senators vote on the nominee.
- If a 3/5 senate majority is reached, POTUS officially appoints the nominee to the supreme court.
In August, 538 reported that the 2016 election would be “a high-leverage election, judicially speaking,” and projected that both Trump and Clinton would pursue ideologically extreme candidates, relatively speaking. While the National Review praised Trump’s picks for supreme court justices as a solid move to marshal more Republicans in his corner, others have projected that neither candidate will be too keen on choosing a court in favor of constitutional staples — like the First Amendment.
So yeah, we’ll check back in a few decades to evaluate the corollaries of the new picks and process. In the meantime, here’s a table from lawnow.org that compares the Canadian and US courts of last resort. Stay tuned for more supreme court comparisons or contact us with a question.
Also published on Medium.