Why it’s Unlikely that a Ruth Bader Ginsburg – Amy Coney Barrett Scenario Will Happen in Canada

‘By Michael J. Piaseczny and Giovanni C. Giuga’

Seymour Lipset’s 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] 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—in line with Lipset’s past observations.

The US is currently in an election period, and President Donald Trump has nominated federal appeals court judge Amy Coney Barrett to fill the late Ruth Bader Ginsburg’s seat, thereby triggering immense political backlash.

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?

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 “caretaker convention”; and (2) Canada’s recent changes to the judicial appointment process.

  1. The US Supreme Court Nomination and Confirmation Process

The US is not just built around the Constitution; much of its functioning revolves around political norms and unwritten constitutional conventions.[2]

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

Despite there not being a formal constitutional convention in this regard, now-President Trump and Republican senators argued that then-President Barack Obama’s nomination of Justice Merrick Garland was inappropriate in 2016 because the electorate was soon going to the polls.[3] 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’s nomination of Justice Garland, and the Republican party’s reversal of their position from 2016 by now nominating Judge Barrett.

  1. The US Supreme Court Nomination and Confirmation Process Steps

Without any explicit constitutional convention operating during this process, the president’s constitutional power to nominate a Supreme Court justice is nearly unfettered.[4] 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:

  • The president nominates a candidate,
  • The Senate is tasked with confirming the candidate, and
  • The president officially appoints the candidate.

This process often encounters challenges at the second step, but a 2017 rule change allows a Supreme Court justice (candidate) to be confirmed with 51 votes instead of 60. This rule change effectively makes filibustering—a tactic often used to delay the nomination process—useless because only a mere 51 votes are now required to close the debate.[5]

Also, in the second step, the president’s judicial choice is referred to the Senate Judiciary Committee, which investigates the nominee and offers a recommendation to the full Senate as either “favorable, negative, or no recommendation.”[6] With simple majority rule, the Senate will convey the confirmation vote to the president who will then sign a commission appointing the individual to the Supreme Court.

  1. Canada’s Caretaker Convention and Judicial Appointment Process

3.1 Canada’s Caretaker Convention Restrains Executive Decision-Making During the Writ Period

In Canada, there is a so-called “caretaker convention” that seeks to guide ministers and the public service in exercising their authority,[7] and this is triggered once a general election is called upon Parliament’s dissolution.[8] The Privy Council Office (“PCO”) provides guidelines that ministers should follow to comply with the convention during an election regarding government activity “in matters of policy, expenditure and appointments.” [9] These activities “should be restricted to matters that are: (a) routine, or (b) non-controversial, or (c) urgent and in the public interest, or (d) reversible by a new government without undue cost or disruption, or (e) agreed to by opposition parties (in those cases where consultation is appropriate).”[10]

The PCO’s use of the word “should” in the guidelines merely implies that a caretaker convention guides a ministry’s behaviour but is not legally enforceable.[11] In other words, the power of the convention only rests in the political arena, but the concrete guidelines do showcase a historically entrenched political philosophy that restrains behaviour.

3.2 Canada’s Recent Judicial Appointment Reform Process Limits (to Some Extent) the Prime Minister’s Discretion

In 2016, the Supreme Court justice appointment process was altered by Prime Minister Justin Trudeau when the federal Liberal party created the Advisory Board for Supreme Court Appointments.

This Board is an independent and non-partisan nominating committee with a mandate to seek out qualified candidates and provide three to five non-binding, merit-based recommendations of functionally bilingual candidates to the prime minister.[12]

An open position on the Court is advertised to allow interested lawyers and judges to apply; the Board also seeks out potential candidates.[13] Recent Supreme Court justices have been appointed using this process. Future prime ministers are not obligated to follow this new “arms-length” process, but it serves as “a better way than anything we have had before or than has been proposed in the past.”[14]

  1. Canada’s Caretaker Convention and New Judicial Appointment Process Create a Tough Structural Barrier for Future “Rogue” Prime Ministers to Stray From

Future Canadian prime ministers are unlikely to violate the caretaker convention by appointing a Supreme Court justice. Before 1960, Canada only had three cases where a Supreme Court appointment occurred in between Parliament’s dissolution and the following election.[15] Recently, Prime Minister Stephen Harper created controversy when announcing Justice Russell Brown’s appointment in the pre-writ period that came into effect during the writ period.[16]This Harper-Brown controversy suggests even recent prime ministers fear the political repercussions of announcing and appointing a Supreme Court justice during the writ period. An appointment during the writ period offers opposition parties the opportunity to treat such an appointment as a campaign issue, thereby increasing the partisan perception of the Court that the caretaker convention aims to remove.[17] Canada’s constitutional conventions are enforceable solely by political actors, and thus a Canadian Trump-equivalent may still make a partisan and political choice to circumvent the convention. It is notable, however, that the courts will acknowledge the existence of a convention and whether it has been breached.[18] Even a Canadian Trump-equivalent prime minister would be unlikely to ignore the caretaker convention without significant political consequences.

The current Canadian appointment process identifies a short list of the best candidates that fit the criteria and therefore limits the prime minister’s potential scope for appointment. The president’s candidate selection criteria, on the other hand, often includes (1) “qualifications of the potential nominee,” (2) ideological considerations concerning “the political and ideological belief of the candidate,” (3) patronage, and (4) “political support from a societal group.”[19]Michael Plaxton notes that the second and third factors are no longer considered in Canada’s appointment process.[20]Moreover, the current appointment process addresses the first and last factors through a non-partisan, transparent, and inclusive process that is accountable to Canadians.

A future prime minister would also likely be unable to nominate a Supreme Court justice during the writ period because of the current appointment process. The current appointment process takes much longer than a writ period—a Canadian federal election being at least a minimum of 36 days long and maximum of 50 days “after the day on which the writ was issued” in accordance with paragraph 57(1.2)(c) of the Canada Elections Act. Justice Malcolm Rowe’s appointment process, for example, took over 60 days.[21]

In sum, Canada’s recent and historic constitutional advancements strengthen its democracy through progressively building and insulating its institutions; whereby, procedural safeguards, both written and unwritten, merge together to fill in structural gaps.

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The opinions expressed in this text belong to the authors and do not reflect those of their positions nor of their affiliated institutions.

About the Authors: Michael and Giovanni are 2L students at the University of Ottawa Faculty of Law, where they also serve as Associate Editors of the Ottawa Law Review. Michael and Giovanni previously attended Wilfrid Laurier University, where they both completed a Bachelor of Arts in Political Science, and where Michael completed a Master of Applied Politics. Michael subsequently obtained a Master of Political Management from Carleton University, while Giovanni completed a Master of Arts in Political Science at McGill University.

Note: To avoid potential conflicts, all student blog posts are anonymized during the screening, editing, and review processes; Michael and Giovanni were not involved in their capacity as OLR Associate Editors.

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[1] Seymour Martin Lipset, Continental Divide: The Value and Institutions of the United States and Canada (New York: Routledge, 1990) (“[t]he United States and Canada remain two nations formed around sharply different organizing principles. Their basic myths vary considerably, and national ethoses and structures are determined in large part by such images” at 225).

[2] Neil S Siegel, “Political Norms, Constitutional Conventions, and President Donald Trump” (2018) 93:1 Ind LJ 177 at 183 and 186.

[3] Robin Bradley Kar & Jason Mazzone, “The Garland Affair: What History and the Constitution Really Say About President Obama’s Powers to Appoint a Replacement for Justice Scalia” (2016) 91 NYUL Rev Online 53 at 58.

[4] US Const art II, § 2 (the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint … judges of the Supreme Court”).

[5] Caren Morrison, “Can Trump and McConnel get Through the 4 Steps to Seat a Supreme Court Justice in just 6 Weeks?”, The Conversation (19 September 2020), online: <theconversation.com/can-trump-and-mcconnell-get-through-the-4-steps-to-seat-a-supreme-court-justice-in-just-6-weeks-146544>.

[6] Ibid.

[7] Michael Plaxton, “The Caretaker Convention and Supreme Court Appointments” (2016) 72 SCLR (2d) 455 at 466.

[8] See Philippe Lagassé, “What is the Caretaker Convention? When Does a Period of Caretaker Government Begin? When Does it End?” (9 October 2015), online: Policy Options <policyoptions.irpp.org/2015/10/09/clarifying-the-caretaker-convention/>.

[9] Privy Council Office, “Guidelines on the conduct of Ministers, Ministers of State, Exempt Staff and Public Servants During an Election” (last modified 11 September 2019) online: Government of Canada <www.canada.ca/en/privy-council/services/publications/guidelines-conduct-ministers-state-exempt-staff-public-servants-election.html>.

[10] Ibid.

[11] Lagassé, supra note 8.

[12] Adam Dodek & Rosemary Cairns Way, “The Supreme Court of Canada and Appointment of Judges in Canada” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (New York: Oxford University Press, 2017) 212 at 220–21.

[13] Ibid.

[14] Peter Russell, “Selecting Supreme Court Justices: Is Trudeau’s Sunny Way a Better Way?” (2017) 68 UNBLJ 3 at 17.

[15] Plaxton, supra note 7 at 476.

[16] Ibid at 480.

[17] Ibid at 481.

[18] Re: Resolution to Amend the Constitution, [1981] 1 SCR 753 at 854, 125 DLR (3d) 1.

[19] See Eszter Bodnar, “The Selection of Supreme Court Judges: What Can the World Learn from Canada, What Can Canada Learn from the World” (2017) 2017:2 ELTE LJ 103 at 122.

[20] Plaxton, supra note 7 at 474–75.

[21] Dodek & Cairns Way, supra note 12 at 220.