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Jeffrey Simpson

Does the Supreme Court of Canada need more checks and balances? Add to ...

A political brawl bids fair to surround the nomination of Antonin Scalia’s replacement for the United States Supreme Court.

Possibly a brawl can be avoided, given that several potential nominees are not known to have ideological slants. One talked-about candidate has worked under both Democratic and Republican administrations. Still, when the Republican leader in the Senate declares that President Barack Obama does not have the right in an election year to nominate anyone – in defiance of precedence and law – a brawl looks more likely than a thorough, non-partisan examination of the nominee.

Political cat fights surrounding at least some nominees for the U.S. Supreme Court send shivers down the spines of Canadian judges, and many lawyers for that matter. Such fights sully the nominee and would deter qualified people from being willing to have their names put forward. Or so runs the Canadian argument.

Most U.S. nominees get through the Senate ratification process with relative ease. Yes, there are hearings where nominees answer lots of questions. Yes, some senator usually shoots off his or her mouth. Yes, in today’s exceedingly polarized politics, members of both parties will be inclined to make a meal of a Supreme Court nomination. And, yes, the conservative-liberal 4-4 split on the court minus Judge Scalia, who died of a heart attack on Feb. 13, adds importance to this nomination.

But, most of the time, Supreme Court nominations are approved without much political rancour.

We tend to remember the controversial nominees whose judicial philosophy and mere presence before the Senate Judiciary Committee set off rancorous political debates. What’s forgotten is that debates around such candidates as Robert Bork, Clarence Thomas, Clement Haynsworth and Abe Fortas (for chief justice) were necessary and important because they lacked the necessary qualifications or had extremely controversial views about how to interpret the law.

Put another way, the U.S. system has not prevented qualified, even outstanding, people from becoming Supreme Court judges, although the process of becoming one is public and intrusive. By contrast, it has prevented unqualified people from serving, or at least waved plenty of red flags before a Senate vote.

Canada, as we learned during the Harper years, has a process for Supreme Court appointments that is opaque. The prime minister has complete discretion to nominate whomever he or she wishes, according to criteria he or she alone determines. All a prime minister must do is respect the geographic distribution of judges and the necessity of having three judges trained in the civil-law tradition. There was briefly a system whereby a group of parliamentarians looked at candidates and confidentially passed on judgments about them, and even a system whereby a Commons committee would hear from a nominee. The committee did not vote; it merely listened and members asked polite questions.

The Harper government scrapped both processes, angered at the rough reception and ultimate rejection of its nomination of Marc Nadon. Serious questions were raised about Judge Nadon’s rather thin record, but what ultimately doomed him was a Supreme Court ruling about the eligibility of judges from Quebec who sat on the Federal Court.

In retrospect, and even at the time, what the Nadon affair showed was the complete lack of institutional capacity in Canada to block, slow down or even cause to have debated a nominee whose philosophy was controversial or whose judicial or legal training was something less than ideal for such an important post.

To use an American expression, Canada lacks either a check or a balance against the undiluted power of a prime minister to make Supreme Court appointments, which is not a major problem provided the prime minister chooses from among highly qualified people. It could be a major problem if, as happened, a prime minister has a political agenda that he wishes to advance through a Supreme Court appointment.

Americans have long understood the importance of the Supreme Court, whose rulings have shaped that country. Canadians, now about four decades into life under the Charter of Rights and Freedoms – which changed the country’s governance from a parliamentary democracy to a constitutional one – still do not appreciate fully the Supreme Court’s judges’ immense power to change Canadian society, without any knowledge or scrutiny of them before being appointed.

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