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Why Canada’s Supreme Court Appointments Are Less Politicized Than the USA’s

Eight days after United States Supreme Court Justice Ruth Bader Ginsburg’s death, President Donald Trump nominated Amy Coney Barrett to the vacant seat of the Supreme Court of the United States.

  • This nomination was met with fervent criticism from the Democratic Party, who lambasted the President for not waiting until after the election to confirm a nominee for the vacant seat.

On the flip side, the nomination was praised by religious conservatives, as Justice Barrett opposes abortion, has defended President Trump’s hardline immigration policies, and is devoted to developing ‘the Kingdom of God’. Justice Barrett belongs to People of Praise, a small and relatively obscure Christian group that has adopted Pentecostal practices such as speaking in tongues, belief in prophecy, and divine healing.

Supreme Court nominations have been wildly politicized and sensationalized in the United States. In 2016, a similar situation to the Barrett nomination occurred with President Barack Obama’s nomination of Justice Merrick Garland, a political centrist. The Garland nomination was similarly launched on an election year. In this case, Senate majority leader Mitch McConnell refused to hear the nomination until after the election. Following President Trump’s victory, Justice Neil Gorsuch, a conservative, was sworn into the vacant seat.

The opposing party will often cite the ‘Thurmond Rule’ to reject a nomination on an election year. It generally stands for the doctrine that no judges should be confirmed without the consent of the Republican and Democratic leaders, the judiciary chairman and ranking minority member.

Yet this is more a political stratagem than a constitutionally binding doctrine, and it is invoked inconsistently. Majority Leader McConnell weaponized the rule to prevent a Garland nomination but insists that the rule should not apply to Justice Barrett. Notably, Barrett’s nomination marks the shortest period of time between a nomination and an election in the United States since 1864.

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What about Canada?

Canada’s Supreme Court structure is largely similar, but there is significantly less hoopla when a Supreme Court vacancy emerges in Canada. Why is this?

The Short answer is that the United States’ ideological schism is historically rooted in the never-ending battle for universal civil rights. Many Republicans are opposed to certain freedoms for disenfranchised communities, which underlines the deeply divided stances many political powerhouses seem to hold.

The appointment of Clarence Thomas was a highly contentious appointment for this exact reason. President George H. W. Bush nominated Justice Thomas to replace the highly respected civil rights icon Thurgood Marshall following his death in 1991. The nomination was contentious not only for his deeply conservative views, which included adherence to the idea of natural law, criticism of affirmative action and suspected criticism of the abortion ruling in Roe v Wade – but also a sexual harassment allegation from Anita Hill, a law professor who had previously worked under Thomas.

The Senate Hearings were televised and sensationalized akin to the recent Brett Kavanaugh hearings. The Senate nevertheless passed Thomas through a narrow majority vote. Justice Thomas is currently the longest-serving member of the Supreme Court at nearly 29 years.

The Key Political Questions for Canadian Judicial Appointments

On the flip side, Canadian politics is divided on different issues, and civil liberty is not one of them. In 2013, five of the nine Justices in the unanimous declaration of Canada v Bedford that “it is not a crime to sell sex for money” were Harper appointees. In 2015, the Court that ruled on Carter v Canada, which provided an avenue for medically assisted suicide, seven of the nine justices were appointees of Stephen Harper. Similar cases, if ruled by the current United States Supreme Court, are unlikely to receive such glowing endorsements.

This is not to say that Canadian politics does not feature some degree of controversy. There are three fundamental political issues that have existed since Confederation:

  • First is the question of federalism. In Canada, sections 91 and 92 of the Constitution Act, 1867 divide power between the federal and provincial government. Generally, matters of civil property, healthcare and labour relations are provincial powers, while criminal powers, the postal service and banking are powers vested in Parliament. This division has consistently sparked tension between the provinces and Parliament.
  • Second, and more immediately pressing to Supreme Court nominations, is the question of Quebec. The Supreme Court Act sets out a legal requirement that three Justices of the Court are from Quebec, to ensure that the civil law system used only by Quebec in Canada, is represented. There is a further desire to ensure Quebec’s confidence remains vested in the court. As for the remaining seats, by convention, three are from Ontario, two are from Western Canada and one is from Atlantic Canada. This is done to ensure fair representation from the provincial bars.  
  • Associated to the second requirement, but can be expressed separately is the need for French language representation. French is a constitutionally protected language, and for political reasons it often features in both Cabinet appointments and Supreme Court nominations.

Controversy about the Quebec Requirement

In 2013, Stephen Harper appointed Marc Nadon as a member from Quebec. Despite being a native Quebecer, he had not been part of the Quebec bar for many years, and his judicial experience came from the Federal Court – not the provincial court. Harper amended the act to allow former members of the bar to be eligible. A reference was launched about this amendment. The Supreme Court decided 6-1 that the amendment was impermissible because it represented an amendment to the constitution, which cannot be casually done by the Government, but rather requires consent of all the provinces.

How does a Supreme Court Nomination Work?

In the United States the President is constitutionally empowered to nominate a judge upon a vacancy emerging in the Court. The Senate must then confirm the appointment through a vote. Typically, a supermajority of 2/3 of the senate is required to confirm an appointment, although through complicated procedural sorcery, the Majority Leader can invoke the ‘nuclear option’ and alter the standing rules and allow a nomination to pass with a simple majority of 50+1.

The Senate’s Judiciary Committee is tasked with evaluating the candidate and perusing the nominee’s background before the Senate has the opportunity to confirm the nomination. Once a nomination is confirmed, the appointed judge remains on the bench of the Supreme Court for life, barring impeachment or early retirement.

In Canada the appointment process was augmented by Trudeau in 2016. There is now a non-partisan advisory board, currently chaired by former Prime Minister Kim Campbell. The board creates a shortlist for the Prime Minister and the Minister of Justice. A representative of the advisory board and the Minister of Justice themselves must explain the nominated candidate to the House of Commons’ justice committee.

The justice committee, members of the Senate’s legal and constitutional affairs committee and representatives of minor parties are then invited to take part in a Q&A session with the nominee.

While those MPs and senators can question the nominee on his legal experience and job readiness, the appointment does not depend on a vote by those parliamentarians. In Canada, the appointment of a Supreme Court justice is made by the Governor General on the advice of the prime minister alone.

An appointed judge serves on the Bench until the age of 75, barring exceptional circumstances or early retirement. The next appointment in Canada will occur next summer, following Justice Rosalie Abella’s mandatory retirement on July 1, 2021.

The key difference in both appointment processes is that the nomination process is more insulated in Canada than in the United States. There are very few decision makers that can affect a nomination in Canada, and if the nomination is reasonable and in accordance with the requirements of the Supreme Court Act, there is very little resistance.

In the United States, much of the appointment is dependent on the Senate, which retains the power to reject a nomination, although most nominees eventually make their way onto the Supreme Court’s bench.

The Big Picture: Justice Barrett’s nomination is only the latest in a string of highly contested Supreme Court nominations. The radically differing views between the two dominant political parties on civil rights and contested issues such as abortion, labour rights and LGBTQ+ rights have underlined the appointment process.

Because these appointments are for life, long tenures are the norm. Justice Barrett, who is only 48 years old, if confirmed, could remain on the bench for several decades. The ideological divisions on civil issues between the parties mean that Presidents often look for candidates whose views best align with their own, and profoundly conservative values are not rare among American politicians.

These differences are muted in Canadian politics, and a mandatory retirement age makes appointments slightly more commonplace than in the South.

Supreme Court appointments are a big deal, and can vastly change the legal landscape of the country. Should a civil rights questions be raised at the Supreme Court level again, a federal mandate on presently enjoyed civil rights could occur, with costly implications for disenfranchised minorities in the United States.