National Post (National Edition)
WHY SUCH SPECTACLES DON'T HAPPEN IN CANADA.
Picking Supreme Court judges is never like this in Canada. Historically, it has involved a phone call from the prime minister, announcing the decision is already made, sometimes on the advice of an all-party committee, sometimes just on a quiet nod from governing party mandarins.
In 2016, the Liberal government created an independent advisory panel to select candidates from eligible judges and lawyers, in an effort to bring long-promised transparency to the opaque process. Scandal is uncommon, and even when it does occur, no one gets “Borked,” as in the American slang for a campaign of public vilification to disrupt a confirmation process, named for a failed 1987 Supreme Court nominee.
What Canada does not do, by design, is make replacing judges into a grand partisan spectacle, like the haunted garden party that appears to have been a super-spreader event for the COVID-19 outbreak at the White House, just weeks before the presidential election.
Ruth Bader Ginsburg, a Bill Clinton nominee, seemed to loom from another realm over those gathered, maskless, to fete her nominated replacement, Amy Coney Barrett. By dying of pancreatic cancer aged 87, the liberal jurist and feminist icon had created an opportunity for President Donald Trump to shift the balance in the scales of justice, the long game of American politics.
This balance moves at a tectonic pace depending on who is lucky enough to be in the White House when one of the judges dies. But it does move. Until 2005, for example, there had not been a vacancy in 11 years. Then, in a single summer, Sandra Day O'Connor retired and William Rehnquist died, opening two spots for George W. Bush to fill.
Barrett would make it a 6-3 split in favour of right-leaning justices. This would benefit Trump personally in the short term if the court is called on to rule about him or the election results, and Republicans in general as the court revisits red meat issues like abortion and guns.
Eventually, the business of deciding and confirming will shift to the Senate, but first came the announcement party, a tightly packed affair in the White House Rose Garden. A row of maskless Barrett children sat in the front row exposed to a president who was flouting pandemic precautions, both before and after the garden party. Examples include a reception for Gold Star families on Sept. 27, after which a Coast Guard vice commandant tested positive, leading to the quarantine of the Joint Chiefs of Staff; and a fundraiser at Trump's New Jersey golf course that led to requests for children to stay away from school if their parents attended.
A few days after the party, news broke that Trump adviser Hope Hicks had tested positive, and a few hours after that, Trump revealed his own positive COVID diagnosis, and his wife Melania's.
COVID-19 ripped through the White House like lice at summer camp. The staffers fell into quarantine like dominoes: press secretary Kayleigh McEnany, former adviser Kellyanne Conway, and John Jenkins, president of Notre Dame University, where Barrett teaches. Others in the Trump orbit who were not at the party but later tested positive include campaign manager Bill Stepien, Republican National Committee Chairwoman Ronna McDaniel, and former New Jersey governor and Trump ally Chris Christie.
Some of the people at the garden party within sneeze range of those infected have no reason to disclose their health to the public. An internal report of the Federal Emergency Management Agency leaked last week shows the outbreak now extends to “34 White House staffers and other contacts.”
Canada can mess up judicial appointments on a grand scale, just not usually with infectious diseases. There was the 2013 Marc Nadon debacle, for example, when then Prime Minister Stephen Harper's pick for a Quebec seat was sworn in, only to be ruled ineligible by his fellow justices a few months later, mainly because, as a judge of the Federal Court of Appeal, Nadon did not actually come from a Quebec court and was no longer a member of the Quebec bar.
American Supreme Court judges do not have the requirement that Canadian ones do to come from a certain part of the country. Each American Supreme Court justice is assigned to a circuit court of appeal, for which they are often required to make emergency decisions that only need a single judge. But they do not have to have previously sat in those jurisdictions, and only three current justices did. Barrett is a judge of the Court of Appeals for the Seventh Circuit, a midwest district to which Justice Brett Kavanaugh is assigned.
Both countries are on a rough trajectory of increasing the numbers of women on the top bench. So it was not just a seat that Bader Ginsburg vacated. It was a woman's seat on a court that had been all men until Sandra Day O'Connor took her seat in 1981.
Last month, California Congressman Ro Khanna put forward a bill to put 18-year term limits on U.S. Supreme Court judges, and create a schedule by which new appointments would be made in odd years, two per presidential term. He argued no single judge should “feel the weight of an entire country on their shoulders” and no president should manipulate the court's ideology “by mere chance. We can't face a national crisis every time a vacancy occurs on the Supreme Court."
Canada has a maximum age of 75 for its Supreme Court judges, so retirements are long foretold, promoting orderly transitions.
Trump is not the first president to seize this kind of opportunity. There is a rich tradition of stacking the top court with partisans.
There is academic research showing more or less predictable patterns in the ideology of each justice's decisions. In Canada, though, this sort of thinking is generally regarded as a mug's game. Canadians have been looking for American-style Supreme Court voting blocs as long as there has been a Canadian Supreme Court, and mostly failing.
Even the nicknames seem to try too hard, like the “LSD Connection” of Laskin, Spence and Dickson in the 1970s, or the “Gang of Five” of Lamer, Sopinka, Cory, Iacobucci and Major in the 1990s, all derivative of earlier American precedents such as the “Four Horsemen” and the “Three Musketeers.”
Beverley McLachlin, chief justice of Canada until her mandatory retirement in 2017, has called these Canadian versions an amusing fiction.
“I just shake my head, because we aren't the United States,” she told the National Post in 2015. “It's not part of the Canadian tradition, perhaps because we're slightly less political in our orientation. People here aren't appointed because they represent a certain point of view.”
They are in America, though. Confirmation hearings can become microcosms of societal discord, as in the Brett Kavanaugh process and the #MeToo movement. For senators, therefore, getting their president's pick confirmed can sometimes rise above partisan duty to become a mission demanding bravery, even recklessness.
Wisconsin Sen. Ron Johnson recently tested positive for COVID-19 and soon after told a Denver radio station that he will try to find a way to vote in person anyway. "If we have to go in and vote, I have already told leadership, I'll go in a moon suit,” he said. “I would certainly try to find a way, making sure that everybody was safe.”
Republicans seem keen to make this a character contest, as other confirmation hearings have been. The Democrat position is that the nomination itself is illegitimate, a rubber-stamp abdication of the Senate's duty to scrutinize, a rush job before the opportunity slips away.
With polls showing the president trailing by double digits, the choice seems clear from the White House perspective. Get Barrett done while it is still possible, or risk seeing the political balance of the Supreme Court shift to 5-4 a few months from now. It would be a rare opportunity lost.
But it would also be the same balance it was a couple of weeks ago, way back when America had other things to worry about, as it still does. The only thing that changed is that an elderly judge passed away, and so a few days later, the White House put out some chairs.
They would never do that in Ottawa.
A RICH TRADITION OF STACKING THE TOP COURT WITH PARTISANS.