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. 

2. 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.

3. 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]

4. 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.