How do you replace a Supreme Court Justice?

A Supreme Court appointment has been quite a different creature in Canada than it has been in the United States. Canada’s traditionally quiet process has come nowhere near stirring up the vitriolic, knock-down-drag-out political brawls that have played out in the U.S. Senate. Nor has Canada given rise to a neologism as the 1987 defeated nomination of Robert Bork gave the world a new verb. Yet though there are many possible explanations for the difference between the two countries’ experiences, one that often recurs in discussion is the variation in judicial appointment procedures.

With Justice Michel Bastarache set to retire on June 30th and speculation already beginning on who his successor will be (see our post by Professor Philip Girard), another pertinent question is by what process will the selection be made? The answer could have a profound effect on the future of Supreme Court appointments in Canada, and more broadly on the relationship between the judiciary, the legislature and the public.

The push for reform in recent years has been predicated on the concern that the appointment process lacked transparency for one that had such import. Though the court plays a significant role in providing judicial review of legislative action, the justices are not widely known to the public. Further, despite the process’s non-partisan face, some have feared that rather than eliminating the political dimensions of an appointment, those machinations merely transpired out of view.

In an attempt to address these concerns, Stephen Harper and the Conservative government adopted a new appointment process the last time around. Having chosen Justice Marshall Rothstein off a shortlist inherited from Paul Martin’s Liberal government, Harper decided that Rothstein would face a round of questions in a public hearing before a parliamentary committee. Despite fears of an American-type circus, the whole affair was remarkably restrained, with seemingly no one wanting to be seen to be stirring the pot.

The adopted process stopped short of granting Parliament the power to ratify a nomination and did not go as far as the Conservatives had, while in opposition, argued it should. Nevertheless, the Canadian Bar Association raised a number of concerns. Responding to Justice Rothstein’s questioning in a press release dated February 27, 2006, the CBA warned that the new “approach could slide down the slippery slope in the future with harder, more partisan, and politically motivated questions.”

If the next nominee goes through the same process as Rothstein J., it’s hard to tell whether he or she will face as civil a committee. And more so than last time around, there seems to be constant talk of an imminent election swirling around Parliament, and with time running out before the fixed election date, some parties may see this process as an invaluable opportunity to posture for voters.

There is, however, also the possibility that an election could replace the government before the vacancy created by Justice Bastarache’s departure is filled. A new government could create a new appointment process all together. Before the Conservatives came to power, then Justice Minister Irwin Cotler had put together a proposal for a four stage process. Under the proposal, the Justice Minister would have consulted widely, and appointed an advisory committee with a mandate to vet the merit of candidates against criteria outlined by the minister as well as to provide an unranked three candidate shortlist. The Minister would have then conducted more consultations before making a recommendation to the Prime Minister who would make a final recommendation to Cabinet. In the fourth and final stage after the actual appointment, the Justice Minister would have appeared before a Justice Committee and explained the process as well as introduced the appointee.

A third option was forwarded by the CBA, where the professional association would oversee the interview of a nominee by a leading Canadian journalist. Questions could be submitted by legal experts, members of the public, as well as members of Parliament.

Regardless of the process followed, the next Supreme Court appointment has the potential, for better or worse, to re-organize the relationship between the court and the legislature and the public.