{"id":5488,"date":"2020-10-26T16:42:00","date_gmt":"2020-10-26T16:42:00","guid":{"rendered":"https:\/\/rdo-olr.org\/?p=5488"},"modified":"2025-03-11T22:03:32","modified_gmt":"2025-03-11T22:03:32","slug":"why-its-unlikely-that-a-ruth-bader-ginsburg-amy-coney-barrett-scenario-will-happen-in-canada","status":"publish","type":"post","link":"https:\/\/rdo-olr.org\/fr\/why-its-unlikely-that-a-ruth-bader-ginsburg-amy-coney-barrett-scenario-will-happen-in-canada\/","title":{"rendered":"Why it\u2019s Unlikely that a Ruth Bader Ginsburg \u2013 Amy Coney Barrett Scenario Will Happen in Canada"},"content":{"rendered":"

‘By Michael J. Piaseczny and Giovanni C. Giuga’<\/em><\/p>\n

Seymour Lipset\u2019s foundational comparative account of Canada and the United States (US) sought to understand the differences between two countries that seem similar when compared to other countries.[1]<\/a> The political situation currently unfolding south of us regarding a judicial nomination actually provides a topical example showing how our two countries seem similar yet are so different\u2014in line with Lipset\u2019s past observations.<\/p>\n

The US is currently in an election period, and President Donald Trump has nominated federal appeals court judge Amy Coney Barrett<\/a> to fill the late Ruth Bader Ginsburg\u2019s seat, thereby triggering immense political backlash.<\/p>\n

The similarity here between our two countries is that in both countries the federal head of government controls the Supreme Court judicial appointment process. But the difference is in how the federal head of government is constrained (or not) in wielding this power. This leads to the question: could a future prime minister of Canada with overt populist and ideological (or Trump-esque) convictions appoint a Supreme Court justice during an election (writ) period?<\/p>\n

In short, the answer is yes, but detailed below are two reasons why we think this is highly unlikely: (1) our prime ministers strictly adhere to the \u201ccaretaker convention\u201d; and (2) Canada\u2019s recent changes to the judicial appointment process.<\/p>\n

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  1. The US Supreme Court Nomination and Confirmation Process<\/strong><\/li>\n<\/ol>\n

    The US is not just built around the Constitution; much of its functioning revolves around political norms and unwritten constitutional conventions.[2]<\/a><\/p>\n

    But in terms of the judicial appointment process in the US, there appears to be no explicit constitutional convention, similar to Canada\u2019s caretaker convention, that prevents or limits a president from nominating or appointing a Supreme Court justice during the formal election period.<\/p>\n

    Despite there not being a formal constitutional convention in this regard, now-President Trump and Republican senators argued that then-President Barack Obama\u2019s nomination of Justice Merrick Garland was inappropriate in 2016 because the electorate was soon going to the polls.[3]<\/a> At this time, the Republican party, in theory, seemingly wanted to create a constitutional convention that a sitting president ought not to nominate a Supreme Court justice close to or during an election period. However, a constitutional convention has failed to form within the American process, as evidenced by the Democratic party\u2019s nomination of Justice Garland, and the Republican party\u2019s reversal of their position from 2016 by now nominating Judge Barrett.<\/p>\n

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    1. The US Supreme Court Nomination and Confirmation Process Steps<\/strong><\/li>\n<\/ol>\n

      Without any explicit constitutional convention operating during this process, the president\u2019s constitutional power to nominate a Supreme Court justice is nearly unfettered.[4]<\/a> Therefore, the president has both political and legal authority to nominate a Supreme Court justice during an election period. The three-step appointment process is summarized as follows:<\/p>\n