The United States and Canada have each created a Supreme Court to act as the highest court of the land. Throughout each country’s history, precedents have established a system of judicial review by the Supreme Court, transforming a weak court into an increasingly powerful arbiter of the constitution portraying judicial activism. With a Supreme Court that has the power to amend a constitution through judicial interpretation, it becomes essential to study the process whereby the chief justice and eight associate justices are appointed to the bench. Canada and the United States both have federal systems of government, yet Canada has a parliamentary system and the United States has a presidential system. This consequently creates a contrast between the judicial appointment process in each country.

The United States government is based on a principle of checks and balances where the executive, the President and Cabinet, is separated from the legislature, Congress. Each branch of government acts as a check on the other branches. Appointments to the Supreme Court adhere to this principle. Article II of the American Constitution states that, "[The President] shall nominate, and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court…" The Senate is given the power to disallow presidential appointments and act as a representative to each state’s wishes. In Federalist No. 76, Alexander Hamilton says, "[Senate approval] would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."

The President of the United States has no legal or constitutional guidelines to follow for judicial appointments. There are, however, conventions set in place by previous presidents that pave the way for present day appointments. Appointees should have a bachelor of law degree, but they need not have practiced law to qualify. No non-lawyer has ever served on the Supreme Court though. Moreover, appointees should be aware of the changing social tensions within society and be susceptible to these changes. Presently, aside from the conventions established, the President will normally base his decision upon any of four major influences: merit and experience; personal friendship; balancing geographical, religious, racial, and sexual representation; and, political and ideological compatibility. Many scholars and politicians contemplate the reasoning for a president’s appointment and are left in disarray. The only person who knows the actual reasoning for an appointment is the president himself.

In making a nomination, the President may first consider an appointee’s merit and experience. It may seem appropriate to select a justice that has an extensive background showing strong character and knowledge of the law, politics, and the judicial process. Prior career experience in politics or law would be a strong asset.

Furthermore, the President may also appoint on the basis of personal friendship. The president may still be indebted to other politicians and will award an appointment as a return favour. Partisanship, however, may not sit well with the American people and can lead to criticism and a possible loss of re-election, providing it is the president’s first term in office.

Moreover, Presidents may base their judgment for appointments on balancing geographical, religious, racial, and sexual representation. To satisfy the trend of a modern tolerance to multiculturalism, presidents may seek to balance the Supreme Court along these lines. With the rise of feminist groups and homosexual rights, the President must also be aware of the increasing political pressures to have a voice for minorities. In the 19^th century, regional representation played the most dominant role in the appointment process, however, today it plays a very small role.

Finally, a president may also base an appointment on political and ideological compatibility. The president may be concerned with whether an appointee shares the same ideological preference as the president. With the power to declare laws unconstitutional, it may be in the president’s best interest to appoint a justice that favours the president’s programs and policies. Furthermore, the president will normally not select someone from the political opposition. It may also come down to whether the president feels that the appointment will make him more popular with interest groups dealing with particular legislation or policy areas. Appointments based on ideological compatibility often are labeled as court packing. Most presidents have been accused of court packing at some point in time, the most famous for this being President Franklin D. Roosevelt.

After the President has nominated a candidate for a position as a justice on the Supreme Court, the nomination moves to a Senate vote. The probability of the Senate disapproving of the appointment is slim, however, it does come in to practice. Probably the most famous instance was the recent attempt to appoint Judge Robert H. Bork to the Supreme Court. President Reagan’s candidate was met with strong antagonism from both lobbying groups and the Senate. Although the Senate does have the power to disallow appointments, at times it may appear to be for the wrong reasons, such as with the Bork affair. The Senate will tend to disallow an appointment if there is popular opposition to a nominating president, not the nominee; the Senate disapproves of a nominee’s involvement with a particular public policy issue; the nominee is claimed to be unreliable; and the nominee lacks the ability or qualifications to be a Supreme Court justice.

In Canada, there is, contrarily, no system of checks and balances like the United States. Canada’s system of government relies on a fusion of powers in which the executive, comprised of the Prime Minister and Cabinet, is part of the legislature, the House of Commons. The power to appoint judges to the Supreme Court, by convention, is left solely to the Prime Minister with no direct check on his decision. Public outcry and the probability of getting re-elected may influence the Prime Minister’s decision, however, there is no process within the government structure that can legally stop a Prime Minister’s appointment. Many cases put before the Supreme Court of Canada deal with the Canadian Charter of Rights and Freedoms. Section 33 of the Charter gives the provinces the power to override a judicial decision and enact a law notwithstanding the court’s decision. Some feel this is one of the few mechanisms available for Canadians to check the authority of the Supreme Court.

The Prime Minister has historically tended to base an appointment on one of patronage, regional representation, group and ethnic representation, or, political program and ideology. The Prime Minister does have a few more conventional guidelines than that of the President. Because Canada is a bilingual country, the position of Chief Justice alters from a francophone to an anglophone. Canada’s movement towards multiculturalism in the 20^th century has caused a rise in group and ethnic representation and a reduction in regional representation. Moreover, by convention, there are presently at least two seats reserved for women justices and all justices are required to have at least ten years of law experience.

As the Supreme Court in Canada takes on a more activist role, the question arises as to whether there is a need for reform to Canada’s process of judicial appointment. Non-elected judges have the power to amend the constitution, the highest law of the land. Do Canadians really want such power given to possibly incompetent and inexperienced judges? In Federalist No. 78, Alexander Hamilton states that, "The complete independence of the courts of justice is peculiarly essential…" The court has often been seen as the heroic judiciary and the protector of disadvantaged groups and minorities in both Canada and the United States. The question that arises then is just how independent should the courts be. Is it necessary to reform the appointment process or would that only lead to less of an independent body? Canadians may look towards the south and the United States’ process of judicial appointment for an answer. Possible reforms may entail provincial governments to act as a check on the Prime Minister’s appointments or a reformed Senate’s approval of a candidate. This may, however, only lead to a stronger version of coercive federalism and the tug-of-war between the provincial governments and Ottawa would only increase. Leaving non-elected judges responsible for the final constitutional say may seem unconstitutional in itself.

2. Abraham, Henry J. The Judiciary: The Supreme Court in the Governmental Process, 4^th ed. Boston: Allyn and Bacon, Inc., 1977, pg. 146-160.
3. Wasby, Stephen L. The Supreme Court in the Federal Judicial System, 3^rd ed. Chicago: Nelson-Hall Inc., 1988, pg. 87-91, 116-125.

1. Bork on the Foundation of Judicial Decisions

http://members.aol.com/basfawlty/bork.htm

2. Media & Politics – Bork

http://cii.inre.asu.edu/~george/bork.html

3. Background Briefing – Judge Rating – American Bar Association

http://www.backgroundbriefing.com/judgrtg.html

4. Starting Over: The Presidential Appointment Process in 1997

http://www.tcf.org/Task_forces/Nominations/Mackenzie/Process.html

By Carman Neustaedter

ID # 990001

Poli Sci 377

March 3, 1999