America’s darling cousin to the north faces an absolutely precious governance problem.
On Thursday, Canadian Chief Justice Beverley McLachlin complained in a speech to the Canadian Bar Association that Prime Minister Justin Trudeau hasn’t filled a vacancy on the nation’s supreme court that does not open up until next month. “I understand that process is important,” Chief Justice McLachlin told the gathered lawyers, “but it is also essential that the current vacancy be filled so that the Supreme Court of Canada can discharge its responsibilities in the session to come in the best possible fashion.”
Bear in mind that Trudeau’s choice to fill this seat will not face an American-style confirmation process, so the chief justice’s complaint boils down to a concern that Canada’s next justice may not have as much time to prepare before they step into a seat immediately after it becomes vacant.
#CanadaProblems are hard.
Meanwhile, here in the United States, President Obama nominated Chief Judge Merrick Garland to fill a vacant seat on the Supreme Court of the United States in mid-March. Indeed, Tuesday marks the five month anniversary of this nomination — a nomination that Obama did not make until more than a month after Justice Antonin Scalia’s death created the vacancy.
Senate Republican leaders refuse to even hold a hearing on Garland’s nomination, much less an actual vote. Majority Leader Mitch McConnell (R-KY) even suggested that he will not allow any new justice to be confirmed if the nominee is opposed by the National Rifle Association.
There is no indication that gun groups of any kind will have a veto power over Prime Minister Trudeau’s choice to join the Canadian Supreme Court.
The reason why America can no longer perform the basic governmental function of filling key jobs, while Canada gets to complain that its new hire may have a sub-optimal amount of preparation time, is that Canada’s system is built for governance and America’s is built for contention. “Ambition must be made to counteract ambition,” James Madison famously wrote of the U.S. Constitution, and so the American Republic’s new form of government is riddled with veto points that allow ambitious officials in one part of the government to hinder the plans of ambitious officials elsewhere.
Compare our methods for choosing supreme court justices. In Canada, the Supreme Court Act provides that “the judges shall be appointed by the Governor in Council by letters patent under the Great Seal.” In practice, however, the Governor General of Canada — a largely ceremonial representative of the British Monarch — appoints whoever the elected prime minister and the cabinet tells them to appoint.
Prime Minister Trudeau has complicated this process a bit by using an Independent Advisory Board to screen candidates for the Supreme Court vacancy. Trudeau’s also promised that members of Parliament will have an opportunity to question his selection. But here’s what they won’t do: run the nominee through a high-stakes confirmation fight where the opposition party may choose to veto Trudeau’s choice.
Here in the states, potential judges are nominated by the president but then sent to a grossly malapportioned body where a resident of Wyoming enjoys 66 times as much representation as a resident of California.
By contrast, here in the states, potential judges are nominated by the president but then sent to a grossly malapportioned body where a resident of Wyoming enjoys 66 times as much representation as a resident of California. Indeed, the United States Senate is so malapportioned that the Republican Party controls a majority of its seats, even though “the 46 Democratic caucus members in the 114th Congress received a total of 67.8 million votes in winning their seats, while the 54 Republican caucus members received 47.1 million votes.”
On top of all of that, the Senate’s current rules permit a minority of senators to prevent a Supreme Court nominee from being confirmed unless 60 senators agree to break this filibuster. That means that the party which controls the White House and that represents the majority of the American people in the Senate must convince 14 members of the opposition party to acquiescence before President Obama’s nominee to the Supreme Court can be confirmed.
Until Justice Scalia’s death, America’s system functioned despite a minority party’s ability to veto Supreme Court nominees largely because we had strong norms against an opposition party refusing to confirm anyone named by a sitting president. On rare occasions, an individual nominee would be rejected. Judge Robert Bork, for example, was rejected in large part due to his past opposition to civil rights laws. Even in the Bork case, however, President Ronald Reagan eventually got to fill that vacancy on the Supreme Court with Justice Anthony Kennedy.
The norm against complete obstruction ended, however, just hours after Scalia’s death when Majority Leader McConnell announced that “this vacancy should not be filled until we have a new President.” He has since hinted that he will not allow the next president to name a Supreme Court justice either if he does not approve of who that president is.
It is likely, in other words, that the United States has now entered a new phase when Supreme Court vacancies simply aren’t filled anymore when different parties control the Senate and the White House. In the worst case scenario, multiple seats could remain open for many years — only to be filled in a rush by highly partisan appointees that members of the other party will justifiably view as illegitimate usurpers.
Yet Canada’s worried that it may not know who its next justice will be for a few more weeks. It must be nice to have a functioning government.