The new Supreme Court appointments process announced today stands as a considerable break from the past approach of behind-the-scenes selection at the virtually unfettered discretion of the prime minister.
Given the policy-making power exercised by members of the highest court in the land, the lack of transparency in the historic process has long been a source of criticism. The closed process has encouraged some to portray Supreme Court appointments as apolitical, but it is well established that appointments make a difference in both the style and substance of the Court’s decision-making, albeit not in the starkly partisan way we see in the United States context. The new process sheds light on the process in a number of important ways. (Disclosure: I provided non-partisan, unpaid advice to the government during the development of this policy).
The most significant change is the creation of an independent advisory committee to canvass for candidates and consider applications in order to draw up a shortlist for the prime minister’s review. If run properly in an arms-length fashion, this committee significantly reduces the discretion the executive has previously enjoyed in determining candidates for the bench. The prime minister’s ability to retain the final selection is an important feature, as it avoids potential constitutional issues (although eliminating the executive from the process entirely would also leave no political actor with accountability for the selection, which in my view would also be undesirable).
Another important element is that the minister of justice will appear before a parliamentary committee to answer questions about the process (and, if necessary, defend it against criticism) following each nomination. This innovation occurred only once, in 2004, before being abandoned by the previous government. It should help to add a measure of accountability and dialogue to the process, as well as ensure continual scrutiny should problems arise.
The nominee will also appear before parliamentarians to answer questions, ideally focusing on how they see the role of the Court, their role as a judge, and their relationship to the other branches of government and society at large. Public “interviews” of this style occurred sporadically under the previous government, but were hampered, in my opinion, by poor (inane, irrelevant) questions. One problem is that MPs received very little lead time—sometimes only 48 hours—from the time the appointment was announced to the appointee’s appearance for the public interview.
Under the new process, parliamentarians will receive at least a week to scrutinize the nominee’s record and develop questions before the public Q&A. Importantly, the formal appointment will follow this final stage in the process. This theoretically implies that unexpected developments or revelations could lead to someone else being nominated (and while that is highly unlikely, it would have been interesting to see if this would have changed the developments surrounding the failed appointment of Marc Nadon to the Court in 2013).
It is my hope that the nature and substance of questions by MPs are not subject to excessive control by whoever moderates the public Q &A. MPs should be encouraged to ask any questions they think relevant to the role of a future Supreme Court justice. If the nominee feels it would be inappropriate to answer a question, she or he is free to decline. There has been, frankly, undue deference on the part of MPs in interviews with appointees in the past.
On the whole, the new process is a marked improvement. Given the nature of the Supreme Court’s work, there is no such thing as perfect appointments process. It is necessary to balance transparency and accountability with legitimate concerns about partisanship and (excessive) politicization of the Court. So long as the government is willing to review the process and make adjustments in the future, this should be seen as a positive step.
Nevertheless, there are some legitimate concerns with the government’s approach. The mandate of the advisory committee to only include functionally bilingual justices may, in fact, be unconstitutional. In 2014 the Court declared that any changes to the eligibility criteria for Supreme Court justices requires the unanimous consent of the provinces under the amending formula. It is one thing for a prime minister to exercise discretion in making appointments and to decide to only appoint bilingual judges, but had the government formally legislated this process, it would undoubtedly run into the constitutional wall. But the committee mandate arguably falls somewhere between discretion and formal policy, and could conceivably be challenged.
Moreover, statements that the committee will canvass across Canada to fill the new appointment has been met with criticism that the government is doing away with the convention of regionally-based appointments. The upcoming vacancy is historically Atlantic Canada’s seat on the Court. There is speculation that one reason the government would look to other parts of Canada for the next appointment is the desire to appoint an Indigenous or visible minority candidate to the bench. Not appointing someone from Atlantic Canada would not conflict with anything in the constitutional text, but it would be contrary to convention. While the courts tend not to enforce conventions, the government invites significant controversy if it chooses to abandon one here.
The regional issue aside, the lack of diversity on the Court is also a serious problem, at least from the perspective of the institution’s legitimacy. Lack of representativeness in a key governing institution like the Court runs contrary to the stated objectives of the Trudeau government (because it’s 2016, after all). Since the Court’s creation in 1875, every justice has been white. The language of the committee’s mandate is no doubt intended to rectify that. Whether it will, and whether the new process will succeed in bringing greater transparency to appointments and to the Court itself, remain to be seen.
Emmett Macfarlane is a political science professor at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane.