By Keith Edmund White
Last week highlighted the dramatically different approaches Canada and the United States use to appoint members to their highest courts. For only the second time, Canada witnessed the use of a formal Advisory Committee to question the Prime Minister’s Supreme Court appointments. The term ‘advisory’ in the committee’s title exposes an interesting feature of Canada’s constitutional process: “The MPs have no power to confirm or deny the prime minister’s appointments.”
In short, and this may be shocking to American readers, nominees to the Canadian Supreme Court have only one practical hurdle to clear: getting the Prime Minister’s approval. Canada doesn’t have the pleasure of watching four-day long interrogations of Supreme Court nominees by the U.S. Senate (in fact, the Advisory Committee was limited to three hours of questioning). Nor does Canada subject their Prime Minister to the dubious distinction of being ‘Borked’.
And this difference isn’t just a fun institutional ‘quirk’ to use as fodder for small-talk. The issue of how judges are appointed to the highest courts of Canada and America presents an intriguing, if not troubling, question: how should democratic nations select their top judges, keeping in mind that the judiciary (1) can yield immense political power, but (2) often derives its credibility from being considered above politics (or, stated less positively, being an inherently undemocratic institution)?
But, before reviewing what happened at last Wednesday’s committee hearing or comparing Canada and America’s appointment processes, providing an overview of Canada’s approach to Supreme Court appointment may prove useful to American readers.
Technically, the Governor General of Canada—not the Prime Minister—is vested with the power to appoint members of the Supreme Court, after consultation with the Queen’s Privy Council for Canada (the non-partisan bureaucratic support staff for Canada’s federal cabinet and the prime minister). But, in practice, this means that the Prime Minister’s cabinet—which, in essence, means the Prime Minister’s support—selects and appoints justices to the Canadian Supreme Court.
Also, there are two rules of appointment to the Canadian Supreme Court concerning geographic representation, one formal and one informal, which may surprise American readers. First, reflecting Quebec unique constitutional status, the Supreme Court Act—the 1875 parliamentary act that created and now governs the Canadian Supreme Court—mandates that the Canadian Supreme Court have at least three justices from Quebec. Second, there remains a convention that, out of the remaining six justices, three justices be appointed from Ontario, two justices from Western Canada, and one justice from the Atlantic provinces. (While the two new justices will return the Court to this ‘conventional’ ratio, the Court currently made up of four judges from Quebec, two from Ontario, two from Canada’s Western provinces—Manitoba and British Columbia, and one from Nova Scotia).
But, this background aside, what transpired at last Wednesday’s Advisory Committee hearing? Well, the Globe and Mail predicted that the two appointees—Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis (both currently serving on Ontario’s Court of Appeal)—would face “a battery of questions”:
Supreme Court of Canada nominees Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis have just one day left to prep for a nerve-wracking parliamentary hearing where they will field a battery of questions from MPs.
However, the chances are slim that the hearing will develop into a free-wheeling session in which the personal lives and views of the nominees are flushed into the open. Instead, it promises to be a tightly scripted affair where MPs largely avoid touching on hot-button social, legal or political issues.
“I think there will be fair questioning, but I don’t think it will be adversarial questioning,” said Liberal MP Irwin Cotler, a member of the Supreme Court search committee that prepared a list of six finalists for Prime Minister Stephen Harper to select from.
Yet, Emmett Macfarlane, writing for Macleans, was unimpressed with the committee’s “vacuous” questioning:
For advocates of greater transparency and democratic accountability in the Supreme Court appointments process, Wednesday afternoon’s ad hoc committee hearing—which gave members of Parliament an opportunity to interview the prime minister’s two nominees—was rather difficult to watch.
The questions ranged from vacuous puffery, such as asking Justices Andromache Karakatsanis and Michael Moldaver to name their personal heroes, to glib and disrespectful challenges to Moldaver regarding his inability to speak French. The broader question of whether Supreme Court justices ought to have proficiency in both of Canada’s official languages is most definitely a legitimate one. And it was certainly not out of bounds for members to ask Justice Moldaver about the importance of language capacity and his intentions to learn French. (I’ll set aside for now the debate about whether we should make bilingualism a prerequisite for appointment to the Court).
But by the time NDP MP Joe Comartin was using his second round of questions to ask Moldaver for the fifth or sixth time about the language issue, it had become painfully obvious that the hearing had nothing to do with learning about the judges or the role of the Court and everything to do with the MPs playing politics. Comartin had already asked a question in French to test Moldaver in a manner that could only have been meant to embarrass him. Not only was it rude, it was also pointless; Moldaver had already expressed regret and pledged to do his best to learn French as quickly as possible. It was as if Comartin hoped that his endless pestering would force Moldaver to quit, which is bizarre enough considering Comartin was on the committee that unanimously approved the short-list from which Stephen Harper named the two judges.
That sideshow notwithstanding, the hearing offered little of substance from which to learn anything relevant about the judges’ views on their role as justices or the role of the Supreme Court. It was a stark contrast from the first time a Supreme Court nominee was publicly interviewed in Parliament. The 2006 hearing where Justice Marshall Rothstein answered an array of questions on his views about the Court and its function had its share of fluff, but was truly edifying by comparison.
Yet, this criticism isn’t unique to the Canadian process. This was the Washington Time’s take on Justice Elena Kagan’s (then) upcoming confirmation hearings:
The most important question members of the Senate Judiciary Committee should ask Supreme Court nominee Elena Kagan is, “Who do you think you are kidding?”
The hearings process for high court nominees has become ritualized to the point that it is almost useless. Nominees are extensively coached to avoid voicing a real opinion. There is no intellectual give and take. Spontaneity is largely absent. Anyone who can reasonably keep his cool and regurgitate platitudes for a few hours can enjoy a lifetime appointment to the most important judicial body in the land.
But two important features in Canada’s selection process should be pointed out: (1) the five-person search committee did not only question the Prime Minister’s two Supreme Court choices, but also cut the Prime Minster’s list of 12 semi-finalists to 6 finalists, and (2) the committee included two members from Canada’s opposition parties.
As reported by the Globe and Mail, “[h]aving Liberal and NDP members on the search committee gave them a say in the process as well as a vested interest in the result, [Liberal committee member] Mr. Cotler acknowledged. ‘At the end of the day, the two people were also recommended by us.’”
These differences reflect a boarder, constitutional divergence between America and Canada’s Supreme Court appointment processes. As a result of its unique constitutional history, appointments to the Canadian Supreme Court, in essence, overtly political: the Prime Minister can install anyone to the Canadian Supreme Court who is constitutionally eligible. But this high level of discretion has pressured Canadian Prime Ministers to craft practices that afford their Supreme Court picks greater political legitimacy, and the freedom to experiment with different approaches to gain such legitimacy.
The United States, by contrast, embodies a rigid process of ensuring Supreme Court nominees earn political legitimacy: U.S. Senate confirmation. But this institutional mechanism has seemingly led the United States in a hyper-politicized process that has little hope of changing. (But does, at least to some, still offers a ‘teachable moment’ to American citizens).
Admittedly, both processes are only as good as the political actors make them. And, while Canada’s constitution gives the Prime Minister the power to look for innovative solutions to the Canadian Supreme Court’s democratic deficient, the Prime Minister’s ultimate control over the process could make Canada “look more like a dictatorship.” For example, in 2008 Prime Minister Harper, then with only a minority government, bypassed Parliament completely when appointing Justice Thomas Albert Cromwell to the Canadian Supreme Court. But, it should be noted that Prime Minister Harper (1) chose a justice with board support, (2) was able to quickly fill an important vacancy, and (3) consulted with then Liberal-opposition leader Michael Ignatieff.
And, at the end of the day, it seems Canada and America’s very different approaches to selecting Supreme Court justices bring the same result: hearings that offer little substance, and results dictated by the Prime Minister or President’s political capital.
Perhaps Canada’s current approach to appointing Supreme Court justices needs improvement. Yet, when the next vacancy on the U.S. Supreme Court occurs, American politicians, policymakers, and voters should look to Canada’s recent experiences with judicial appointment. Not only will they perhaps discover new ways to improve the America’s appointment process, they may also come to appreciate the benefits of Canada’s constitutional flexibility.