Allan Hutchinson is a professor at Osgoode Hall Law School, York University.
Spring is here. And so it seems is a new season of judicial appointments. Both Canada and the United States have vacancies on their nine-person Supreme Courts to replace retiring or deceased justices.
This unusual coincidence provides a suitable occasion to look at the different processes at work in the two countries for the appointment of senior judges. Also, it gives us a glimpse at what Canadians and Americans think about the role and performance of their highest courts.
The American process is multilevelled. Under the Constitution, a candidate is selected and nominated by the president. That nominee must appear before the Senate Judiciary Committee that questions the nominee and hears from witnesses about the nominee's suitability. If approved by the committee, the candidate is put before the full Senate and a vote is taken. A successful nominee can then be formally appointed by the president.
The Canadian process is relatively simple by comparison. While the formal power to appoint lies with the governor-general, the prime minister both nominates and approves a candidate at one and the same time. While he might well seek input from others, the only formal constraint is that of geographical representation – three from Quebec, one from Eastern Canada, three from Ontario and two from the West.
By convention, the governor-general has no authority to review or reject the prime minister's appointment. There is no constitutional or legal requirement for a choice to face parliamentary or any other kind of approval. In short, the prime minister is king.
Ten years or so ago, an informal practice of broader provincial and public consultation was introduced, along with the establishment of a parliamentary advisory committee. However, that practice was ignored on the occasion of the past few appointments. In effect, former prime minister Stephen Harper nominated, approved and appointed the members of the Supreme Court.
But for all the hoopla that surrounds the U.S. process in comparison to the relative low-key Canadian process, the U.S. one has much to recommend it. Mindful of the power of Supreme Court judges, it is hardly the stuff of democratic legitimacy to leave their appointment to the untrammelled discretion of one person.
Some, of course, will applaud the Canadian process as being preferable as it is non-political. There is no occasion for an ideological free-for-all as is shaping up to be the case in Washington: The Senate leaders have already indicated that they will not approve any nomination by President Barack Obama in the last year of his presidency.
But it would be foolish and naive for Canadians to pretend that what goes on behind closed doors is somehow less political by virtue of that fact alone. It is true that Canadian judicial appointments tend to be less strictly ideological than their U.S. counterparts. But it remains the case that Canadian prime ministers do not appoint judges who have opposite views to their own. Strict ideological conformity is not the order of the day, but general ideological compatibility is.
The fact is that the work and effects of both Supreme Courts are deeply political in nature and action. The cases that they decide to take, how they decide them and the consequences of their decisions are all part and parcel of the prevailing social and political context. This will often not line up along strictly party-political lines, but it is no less political for that. The who of judging determines the what and why of judging.
Despite the chorus of established views to the contrary, merit and politics are not distinct cousins. Of course, it would be folly to select an out-and-out ideologue, even though Americans have had a tendency to do that; Antonin Scalia was a prime example. While merit and ideology do not collapse into each other, it is simply not possible to talk of one without the other. Good judges recognize that the resort to values (and contentious ones at that) is an integral and inevitable part of the judicial task.
Prime Minister Justin Trudeau has not yet tipped his hand as to how he intends to proceed. One can only hope that he will not be distracted by the circus-like antics of U.S. politics. He should, at a minimum, encourage and respect broad consultation before he makes his choice. Even better, he should put in place a parliamentary review process that has some teeth.
Either way, the appointment of Supreme Court judges should involve an open, transparent and contestable process. If judges are to be arbiters of what is reasonable in a free and democratic society, as the Charter of Rights and Freedoms phrases it, their appointment and validating process should be reasonable and democratic. In this, the Americans have something to teach us.