Selecting The Supremes: What America Can Learn from Canada’s Approach to Appointing Justices to the Canadian Supreme Court

By Keith Edmund White

Last week highlighted the dramatically different approaches Canada and the United States use to appoint members to their highest courts. For only the second time, Canada witnessed the use of a formal Advisory Committee to question the Prime Minister’s Supreme Court appointments. The term ‘advisory’ in the committee’s title exposes an interesting feature of Canada’s constitutional process: “The MPs have no power to confirm or deny the prime minister’s appointments.”

In short, and this may be shocking to American readers, nominees to the Canadian Supreme Court have only one practical hurdle to clear: getting the Prime Minister’s approval. Canada doesn’t have the pleasure of watching four-day long interrogations of Supreme Court nominees by the U.S. Senate (in fact, the Advisory Committee was limited to three hours of questioning). Nor does Canada subject their Prime Minister to the dubious distinction of being ‘Borked’.

And this difference isn’t just a fun institutional ‘quirk’ to use as fodder for small-talk. The issue of how judges are appointed to the highest courts of Canada and America presents an intriguing, if not troubling, question: how should democratic nations select their top judges, keeping in mind that the judiciary (1) can yield immense political power, but (2) often derives its credibility from being considered above politics (or, stated less positively, being an inherently undemocratic institution)?

But, before reviewing what happened at last Wednesday’s committee hearing or comparing Canada and America’s appointment processes, providing an overview of Canada’s approach to Supreme Court appointment may prove useful to American readers.

Technically, the Governor General of Canada—not the Prime Minister—is vested with the power to appoint members of the Supreme Court, after consultation with the Queen’s Privy Council for Canada (the non-partisan bureaucratic support staff for Canada’s federal cabinet and the prime minister). But, in practice, this means that the Prime Minister’s cabinet—which, in essence, means the Prime Minister’s support—selects and appoints justices to the Canadian Supreme Court.

Also, there are two rules of appointment to the Canadian Supreme Court concerning geographic representation, one formal and one informal, which may surprise American readers. First, reflecting Quebec unique constitutional status, the Supreme Court Act—the 1875 parliamentary act that created and now governs the Canadian Supreme Court—mandates that the Canadian Supreme Court have at least three justices from Quebec. Second, there remains a convention that, out of the remaining six justices, three justices be appointed from Ontario, two justices from Western Canada, and one justice from the Atlantic provinces. (While the two new justices will return the Court to this ‘conventional’ ratio, the Court currently made up of four judges from Quebec, two from Ontario, two from Canada’s Western provinces—Manitoba and British Columbia, and one from Nova Scotia).

But, this background aside, what transpired at last Wednesday’s Advisory Committee hearing? Well, the Globe and Mail predicted that the two appointees—Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis (both currently serving on Ontario’s Court of Appeal)—would face “a battery of questions”:

Supreme Court of Canada nominees Mr. Justice Michael Moldaver and Madam Justice Judge Andromache Karakatsanis have just one day left to prep for a nerve-wracking parliamentary hearing where they will field a battery of questions from MPs. 

However, the chances are slim that the hearing will develop into a free-wheeling session in which the personal lives and views of the nominees are flushed into the open. Instead, it promises to be a tightly scripted affair where MPs largely avoid touching on hot-button social, legal or political issues. 

“I think there will be fair questioning, but I don’t think it will be adversarial questioning,” said Liberal MP Irwin Cotler, a member of the Supreme Court search committee that prepared a list of six finalists for Prime Minister Stephen Harper to select from.

Yet, Emmett Macfarlane, writing for Macleans, was unimpressed with the committee’s “vacuous” questioning:

For advocates of greater transparency and democratic accountability in the Supreme Court appointments process, Wednesday afternoon’s ad hoc committee hearing—which gave members of Parliament an opportunity to interview the prime minister’s two nominees—was rather difficult to watch. 

The questions ranged from vacuous puffery, such as asking Justices Andromache Karakatsanis and Michael Moldaver to name their personal heroes, to glib and disrespectful challenges to Moldaver regarding his inability to speak French. The broader question of whether Supreme Court justices ought to have proficiency in both of Canada’s official languages is most definitely a legitimate one. And it was certainly not out of bounds for members to ask Justice Moldaver about the importance of language capacity and his intentions to learn French. (I’ll set aside for now the debate about whether we should make bilingualism a prerequisite for appointment to the Court). 

But by the time NDP MP Joe Comartin was using his second round of questions to ask Moldaver for the fifth or sixth time about the language issue, it had become painfully obvious that the hearing had nothing to do with learning about the judges or the role of the Court and everything to do with the MPs playing politics. Comartin had already asked a question in French to test Moldaver in a manner that could only have been meant to embarrass him. Not only was it rude, it was also pointless; Moldaver had already expressed regret and pledged to do his best to learn French as quickly as possible. It was as if Comartin hoped that his endless pestering would force Moldaver to quit, which is bizarre enough considering Comartin was on the committee that unanimously approved the short-list from which Stephen Harper named the two judges. 

That sideshow notwithstanding, the hearing offered little of substance from which to learn anything relevant about the judges’ views on their role as justices or the role of the Supreme Court. It was a stark contrast from the first time a Supreme Court nominee was publicly interviewed in Parliament. The 2006 hearing where Justice Marshall Rothstein answered an array of questions on his views about the Court and its function had its share of fluff, but was truly edifying by comparison.

Yet, this criticism isn’t unique to the Canadian process. This was the Washington Time’s take on Justice Elena Kagan’s (then) upcoming confirmation hearings:

The most important question members of the Senate Judiciary Committee should ask Supreme Court nominee Elena Kagan is, “Who do you think you are kidding?” 

The hearings process for high court nominees has become ritualized to the point that it is almost useless. Nominees are extensively coached to avoid voicing a real opinion. There is no intellectual give and take. Spontaneity is largely absent. Anyone who can reasonably keep his cool and regurgitate platitudes for a few hours can enjoy a lifetime appointment to the most important judicial body in the land.

But two important features in Canada’s selection process should be pointed out: (1) the five-person search committee did not only question the Prime Minister’s two Supreme Court choices, but also cut the Prime Minster’s list of 12 semi-finalists to 6 finalists, and (2) the committee included two members from Canada’s opposition parties.

As reported by the Globe and Mail, “[h]aving Liberal and NDP members on the search committee gave them a say in the process as well as a vested interest in the result, [Liberal committee member] Mr. Cotler acknowledged. ‘At the end of the day, the two people were also recommended by us.’”

These differences reflect a boarder, constitutional divergence between America and Canada’s Supreme Court appointment processes. As a result of its unique constitutional history, appointments to the Canadian Supreme Court, in essence, overtly political: the Prime Minister can install anyone to the Canadian Supreme Court who is constitutionally eligible. But this high level of discretion has pressured Canadian Prime Ministers to craft practices that afford their Supreme Court picks greater political legitimacy, and the freedom to experiment with different approaches to gain such legitimacy.

The United States, by contrast, embodies a rigid process of ensuring Supreme Court nominees earn political legitimacy: U.S. Senate confirmation. But this institutional mechanism has seemingly led the United States in a hyper-politicized process that has little hope of changing. (But does, at least to some, still offers a ‘teachable moment’ to American citizens).

Admittedly, both processes are only as good as the political actors make them. And, while Canada’s constitution gives the Prime Minister the power to look for innovative solutions to the Canadian Supreme Court’s democratic deficient, the Prime Minister’s ultimate control over the process could make Canada “look more like a dictatorship.” For example, in 2008 Prime Minister Harper, then with only a minority government, bypassed Parliament completely when appointing Justice Thomas Albert Cromwell to the Canadian Supreme Court. But, it should be noted that Prime Minister Harper (1) chose a justice with board support, (2) was able to quickly fill an important vacancy, and (3) consulted with then Liberal-opposition leader Michael Ignatieff.

And, at the end of the day, it seems Canada and America’s very different approaches to selecting Supreme Court justices bring the same result: hearings that offer little substance, and results dictated by the Prime Minister or President’s political capital.

Perhaps Canada’s current approach to appointing Supreme Court justices needs improvement. Yet, when the next vacancy on the U.S. Supreme Court occurs, American politicians, policymakers, and voters should look to Canada’s recent experiences with judicial appointment. Not only will they perhaps discover new ways to improve the America’s appointment process, they may also come to appreciate the benefits of Canada’s constitutional flexibility.

CONDITIONAL RESIDENCY: THE U.S. HAS IT, NOW POSSIBLY CANANDA?

By Racheal Clarke
Staff Writer

As neighbors, Canada’s immigration law is a vital part of understanding the bilateral relationship between the two countries. With proposals to relax security at the U.S.-Canadian border and instead adopt a continental security approach, understanding the differences of how individuals can get into the United States and Canada is a critical topic in Canada-United States relations. This post explores the emotional political debate over whether Canada should adopt a U.S.-styled conditional residency requirement on immigrants who enter Canada by virtue of marrying a Canadian citizen.

The United States imposes a two year conditional residency requirement on individual immigrants who are beneficiaries of an immigrant petition filed by their U.S. citizen spouse. If the couple is married for less than three years, the immigrant spouse receives a conditional resident card when their application for permanent resident status is approved. Ninety days before the second anniversary of the marriage, the couple must file Form I-751 Removal of Conditions. In order to remove the conditions, the couple must submit documentation proving the bona fide nature of the relationship and must show proof of marital union. This is normally done by sending in pictures of the couple together with friends and family, joint accounts, affidavits from the couple, friends and family, etc. However, there are times that the marriage ends before the two year requirement. This makes it difficult for the immigrant spouse to adjust their status. Knowing that they would immediately be placed in removal proceedings, many immigrant spouses stay in a broken marriage. In worst case scenarios, these immigrants put up with physical and emotional abuse in order to receive their permanent resident status.

Canada’s Minister of Citizenship and Immigration has proposed a policy to create a two year “conditional residency” similar to the U.S.[1] The proposal would amend the Immigration and Refugee Protection Regulations to include a specified period of conditional permanent residence for spouses and partners sponsored by Canadian citizens/permanent residents. Unlike the U.S., this policy would only apply to spouses and partners who have been married to their sponsor for two years or less at the time of the sponsorship application.[2] The sponsored spouse or partner would be required to remain in a bona fide relationship with their sponsor for a period of two years after receiving Canadian permanent residence status or risk losing their status.

This proposal has created serious concerns about the vulnerability of spouses and partners in abusive relationships. Canada’s Immigration Legal Committee (ILC) is opposed to the proposed changes. Among other objections, the ILC believes that the new policy would place the immigrant spouse, who usually are women, in increasingly vulnerable situations such as abusive relationships. They also believe that there are enough measures in place to prevent and identify marriage fraud.

A report done by Status of Women Canada shows that this is a legitimate concern. The report entitled, “Sponsorship…For Better or For Worse,”[3] states that “although not all sponsored women are negatively affected by the legal relationship, […] often sponsorship seems to be a source of conflict, tension, blackmail and at times abuse.”[4] The proposed changes may very well force women sponsored by Canadian spouses to remain in an abusive relationship for fear of losing her permanent resident status. However, the Minister has stated that “a process for allowing bona fide spouses and partners in such situations to come forward without facing enforcement action would be developed if a conditional permanent residence period were introduced.”[5] It will be interesting to see if this policy works for Canada as well as it works (or doesn’t work) for the U.S.



[1] The proposals were published in the Canada Gazette. See Canada Gazette, Government Notices (2011), available at http://www.gazette.gc.ca/rp-pr/p1/2011/2011-03-26/html/notice-avis-eng.html#d114 (last visited Sept. 24, 2011).
[2] This is one year less than is required in the United States.
[3] ANDREE COTE, et al., SPONSORSHIP. . . FOR BETTER OR FOR WORSE (2001), http://dsp-psd.tpsgc.gc.ca/Collection/SW21-54-2000E.pdf.
[4] Id.
[5] Jim Bronskill, Feds Propose New Rules For Sponsored Spouses, March 28, 2011,  http://news.ca.msn.com/canada/cp-article.aspx?cp-documentid=28166829.

The WTO at a Crossroad? FTAs and the Future of International Trade.

By Steven Paille

Staff Writer

Introduction

With the US Congress finally ready to vote on three bilateral trade deals, it seems a good time to look at the Canada-United States trade relationship and its impact on the WTO.  In particular, should proponents of liberalized trade welcome or read the ongoing negotiations between Canada and the EU for a Comprehensive Economic and Trade Agreement (CETA)—and, perhaps, its push for America to conclude its own free trade agreement (FTA) with the EU?  

Answer:  It is possible that nations pursuing ‘free-er’ trade could actually end the era of free trade as we know it—and gut the WTO.

The United States (US), Canada, and the European Union (EU) are all members of the World Trade Organization (WTO).  Since the US and the EU make up approximately half of the world’s GDP, their inclusion in the WTO is vital to the continuance of international trade norms, dedicated to non-discrimination, transparency, and low trade barriers.  However, the current economic downturn could signal a change in international trade norms and individual countries’ trade policies.  The blogosphere has already questioned whether the world is “moving back towards the protectionist system of the 1930s.”  In contemplating whether the US and EU will ever enter into a Free Trade Agreement (FTA) or whether the EU and Canada will successfully conclude the Comprehensive Economic and Trade Agreement (CETA), one must ask whether the world will return to the “spaghetti ball of bilateral trade agreements” dueling with one another, and whether the WTO can endure such a change in international trade norms.

Most-Favored-Nation and GATT Article XXIV

One of the fundamental trading principles of the WTO is “Most-favored-nation” (MFN), or non-discrimination.  In fact, this principle is the first article of the General Agreement on Tariffs and Trade (GATT), the second article of the General Agreement on Trade in Services, and the fourth article of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).  The MFN principle articulates that an individual country should keep trade barriers low, transparent, and equal for all WTO trading partners.  Further, an individual country should not discriminate between local products/services and foreign products/services.  Moreover, the WTO provides for an international trade arena, whereby bilateral agreements are not needed.  In fact, the WTO states, “[Regional Trade Agreements] (RTAs) can complement the multilateral trading system, help to build and strengthen it. But by their very nature RTAs are discriminatory: they are a departure from the MFN principle, a cornerstone of the multilateral trading system.” 

Like most agreements, there are always exceptions.  Here, a big one is that countries can still discriminate against one another by liberalizing their trade restrictions more with other countries through regional trade agreements of RTAs. (Other exceptions include more favorable trade policies for developing countries and restrictions to trade from countries that are “trad[ing] unfairly.”)

The Concern of RTAs

RTAs, while seemingly an excellent inducement for all countries to lower trade barriers, could obliterate MFN—and with it the WTO itself— if it is used by Canada and the United States to obtain preferential trade deals with the EU.

The WTO reports a “surge in RTAs [that] has continued unabated since the early 1990s.  As of 15 May 2011, some 489 RTAs, counting goods and services notifications separately, have been notified to the GATT/WTO.  Of these, 358 RTAs were notified under Article XXIV…”  As a result, while the exception for RTAs may have been needed to attain the support 153 WTO member states, the increase in RTAs and an eventual EU-US FTA and Canada-EU FTA may make MFN the exception, rather than the rule.  Clyde Prestowitz, President of the Economic Strategy Institute, explains that a “US-EU free trade agreement…would probably destroy the WTO because the US and the EU together represent somewhere between two-thirds to half of the world economy.  If half of the global economy entered into an FTA and excluded the other half – where would that leave the WTO?”  Mr. Prestowitz calls FTAs “preferential trade agreements,” which, according to the MFN doctrine, are disfavored by the WTO.

And a FTA between the EU and the US may solidify an international trade regime defined by competing blocs of FTAs.  If approximately half of the world’s economy had a preferential trade agreement, the other half of the world’s economy, spread across a number of countries, may lose out.  Although current tariffs between the EU and the US are low, “economic gains are higher when you do trade deals between bigger economies.”  Therefore, the aggregate effects of an EU-US FTA could be quite large.  This could result in disincentives for the EU and the US to engage in trade with outside countries.

As a result, an EU-US FTA could start an interesting cycle across the world.  If outside countries are left out because of an EU-US relationship, each outside country would be incentivized to quickly develop their own FTAs with the EU and the US.  This could create another “spaghetti bowl” effect. 

On the other hand, the dramatic increase in FTAs could create a reinforcing web of county-to-country trade deals that, in time, would allow the WTO to set even more liberal trade rules. The result could then be that the international trade norm of low trade barriers is strengthened.  In fact, as Fredrik Erixon, director of the European Centre for International Political Economy, points out, the EU and the US “will inspire others to follow their lead.”

Conclusion:  Will the WTO Step In?

The impact of FTAs on the WTO will depend on these agreements specifics.  Hence, the critical question becomes if the WTO will step in either to block these agreements (unlikely) or influence their terms (more likely). 

The FTA-exception, drafted into the WTO’s governing documents with critical qualifiers, could permit the WTO’s judicial arm to step in and ensure FTAs will not harm—but only reinforce—a global norm for liberalized trade among all countries.  I’ll be exploring this topic in my next post.