How Canada Appoints Supreme Court Justices, And Why It's Less Partisan Than The U.S.

Canada's Supreme Court appointment process is significantly less partisan than what Americans are witnessing over President Trump's Supreme Court pick Brett Kavanaugh.

Here & Now's Jeremy Hobson talks with Adam Goldenberg (@adamgoldenberg), a lawyer and adjunct professor at the University of Toronto, to learn why the countries differ so vastly. Goldenberg was a clerk for former Chief Justice of Canada Beverley McLachlin.

On differences between the two countries' judicial nomination processes

"It's a lot less political [in Canada]. In Canada, the prime minister is the chief adviser to the governor general, who is the queen's representative in Canada, and the prime minister gives the governor general a name, and that person is appointed to the Supreme Court.

"There's no necessity for any sort of legislative hearing or other process before the person is appointed, although different governments in the past have chosen, by their own volition, to have some kind of public hearing. The last couple of appointments by the current government have involved some questioning by members of parliament, although it's far more gentle than what Judge Kavanaugh just went through down there in the United States.

"It's much more informal process, and none of it is constitutionally mandated. The only thing that the government has to do is pick a name."

"Imagine a court where you have, of nine judges, at least seven at any one time are Anthony Kennedy."

Adam Goldenberg

On how the Canadian government avoids nominating a justice that would rule in favor of the political party that put them on the court

"There is no procedural means of making sure of that. There's simply constitutional norms and traditions that say the government doesn't do that, and history shows that Canadian governments don't do that.

“The culture of the Canadian Supreme Court is profoundly different, I'd suggest, than the culture of the U.S. Supreme Court … You don't see the partisanship around judicial appointments here that you do there.

"For example, the last government, the conservative government led by Prime Minister Stephen Harper, by the end of his time in office, had appointed seven of the nine judges on the Supreme Court of Canada, and nobody really could tell the difference. The government was still losing appeals on law-and-order issues. The Supreme Court struck down laws against sex work, against doctor-assisted suicide. It upheld a constitutional right to use medical marijuana, and it even struck down mandatory minimums, which was a significant part of the former government's platform. In the U.S., you would expect highly polarized political issues like that to be decided on 5-4 votes, almost on party line votes, like in a legislative body. In Canada, it's much harder to call how an individual judge will vote based on which party put them on the court.

"Imagine a court where you have, of nine judges, at least seven at any one time are Anthony Kennedy."

On differences between the judicial powers of each country's Supreme Court

"Politically speaking, it is not really any less powerful than the Supreme Court is in the U.S. The one difference that you have in the Canadian context is there's a legislative override clause written into our Charter of Rights and Freedoms, which is the equivalent of the Bill of Rights.

"Whereas in the United States, if for example the U.S. Supreme Court says the legislature, Congress, cannot do 'X' because it violates the First Amendment, in Canada, if a law were found to infringe Section 2(b) of the charter, which is the equivalent of the First Amendment, the Parliament of Canada or a provincial legislature could invoke what's called the notwithstanding clause, Section 33 of the Charter of Rights and Freedoms.

"So the legislature does have the power to override the Supreme Court, although that power is used incredibly sparingly, because there are political consequences to using it. And some commentators, particularly in the United States, suggest that this makes the form of judicial review we have in Canada qualitatively weaker than what you see in the United States. But, for practical purposes, when the Supreme Court strikes down a law, it stays struck down."

On the U.S. Supreme Court's focus on constitutional interpretation, and the history of the debate

"In the U.S., the debate that happens now around constitutional interpretation and constitutional meaning is largely informed by forces in legal academia and in politics that were inspired by conservative backlash to rulings that the [Chief Justice Earl] Warren court made in the 1960s and that had continued then in the '80s, particularly when Ronald Reagan was in the White House, and there was a deliberate effort on the part of the Reagan Justice Department to choose judges whose judicial philosophy aligned with conservative policy outcomes.

"The originalism that Antonin Scalia so famously expounded as a U.S. Supreme Court justice and as an academic before he was a judge — and that other judges like Robert Bork, who was almost a U.S. Supreme Court judge, were famous for expounding — [was] largely generated by a deliberate effort to create a conservative response to the Warren court's liberalism and a string of decisions in the '60s, and we all know them, you know: Brown v. Board of Education, that was in the '50s, Miranda and Arizona, Gideon and Wainwright — decisions that the conservative movement in the United States took real exception to."

On the Federalist Society and other partisan organizations that attempt to influence who is nominated to the Supreme Court

"We do have conservative legal organizations that do important work and that do the important job of making sure there is diversity in the legal academy and in the judiciary, but they don't have the same kind of influence that the Federalist Society does in the U.S.

"There is no, for example, equivalent to Leonard Leo, who's the executive vice president of Fed Soc, who actually drafts a list that goes to the president that the president, in President Trump's case, chooses all of his Supreme Court picks from. There's nothing like that in Canada, nor is there the well-established pipeline for both liberal and conservative law students in the U.S. to become liberal or conservative judges or first law clerks and then government lawyers and then private practice lawyers and then judges and then appellate judges and then Supreme Court justices. In Canada, there is nothing like that level of organization, nor has there ever been."

"Judges who reach the Supreme Court in Canada, it doesn't even cross one's mind to think, 'Is this person a liberal? Are they a conservative?' Because chances are, they aren't."

Adam Goldenberg

On estimates that only 1 in 600 Canadians identify with a political party, and whether he believes the Canadian Supreme Court is less partisan because Canadians in general are less partisan than Americans

"So, the statistic there, the 1 in 600 number, is an estimate, and what it represents is the number of Canadians that actually go out and join a political party.

"If I were an American and I wanted to become a Democrat, I would simply say to no one in particular, 'I am now a Democrat,' or I would register as a Democrat with the state government. In Canada, there is no equivalent to that. If you want to become a liberal in Canada, you have to join the Liberal Party. The Liberal Party actually recently made this dramatic move to open up its membership by getting rid of membership fees. The other parties, you actually have to pay money, and that of course is very different than in the United States.

"So very few Canadians actually take the step of formally affiliating themselves with a political party. That isn't to say that Canadians don't identify as being more or less aligned with one party or another, but in the U.S., when you say you're a Democrat, that means a lot more than saying, 'I vote liberal,' in Canada.

"Yes, Canadians are less partisan than Americans are, and so Americans expect each other to be more partisan than Canadians expect each other to be. Judges who reach the Supreme Court in Canada, it doesn't even cross one's mind to think, in most cases, is this personal a liberal? Are they a conservative? Because chances are, they aren't."

"How are you supposed to keep people trusting the decisions of a high court when they see it as an extension of politics? And in Canada, we've managed to avoid that."

Adam Goldenberg

On which country's judicial nomination process he believes is better

"Well, I think the U.S. system is borderline insane, and I say that with great respect to the U.S. constitutional tradition … That being said, the Senate Judiciary Committee hearings were not always this way. Both parties share responsibility for that. I mean, the Robert Bork hearings and the hearings around Clarence Thomas' appointments back in the in the '80s, these were the the watershed moments in turning the Senate Judiciary Committee into the political madhouse that it is today around Supreme Court nominations.

"I do think that when you have judicial appointments become such a partisan issue, there is a legitimacy problem for a high court. When people see 5-4 rulings on issues like gay marriage in Obergefell and Hodges, in campaign finance reform in Citizens United and Federal Election Commission, like very recently on labor unions and the rights of non-labor union members to not pay union dues for political activities in the Janus case … When these sorts of politically contentious issues, which are the subject of partisan contestation in the legislative context, are decided on 5-4 party-line votes by the Supreme Court, it's no surprise that Americans take a judicial appointment to be like a lasting achievement for a Republican president to make the Supreme Court a Republican body.

"How are you supposed to keep people trusting the decisions of a high court when they see it as an extension of politics? And in Canada, we've managed to avoid that, partly by sheer luck, partly by different constitutional traditions that we have in different structures that we have in our constitution, and partly because our judges quite simply are less predictable than yours are."