Selecting the Supremes: The Appointment of Judges to the Supreme Court of Canada

By McCormick, Peter | Journal of Appellate Practice and Process, Spring 2005 | Go to article overview

Selecting the Supremes: The Appointment of Judges to the Supreme Court of Canada


McCormick, Peter, Journal of Appellate Practice and Process


I. INTRODUCTION

The classic problem in political theory and institutional design is the simple question, "Who shall guard the guardians?" Especially when judicial power is an increasingly visible dimension of legitimate political authority, a challenge of comparable significance is, "Who shall appoint the judges?"--particularly the judges of the nation's highest court. For much of the country's history, Canadians have shown a surprising indifference to this question, despite the fact that our southern neighbours from their beginning established a check-and-balance mechanism for this important function. The fact that the use of that mechanism has been sporadically controversial has somehow always seemed to suggest only that the Americans had gotten the answer wrong, not that Canadians had somehow missed the question.

But a new Canadian prime minister may have nudged the country beyond its indifference. Shortly after taking office in December 2003, Liberal Prime Minister Paul Martin spoke of the need to address a "democratic deficit," with the appointment of Supreme Court judges as one element of this larger problem. He promised to make the process more transparent and more accountable, and charged the House of Commons Justice Committee with conducting public hearings in order to come up with a set of recommendations or alternatives. The context of these comments was an anticipated retirement in 2006, but they became more pressing in the spring of 2004 when two Supreme Court justices unexpectedly announced their retirement. As if to demonstrate precisely what was at stake, the Supreme Court ended the term with several five-to-four decisions, including the clearest statement to date of the meaning of "freedom of religion" under the Canadian Charter of Rights and Freedoms. (1) The reduction of the Liberals to a weak minority position in the June election highlighted the anomaly of an unfettered Prime Ministerial discretion in making appointments; but when two new Supreme Court appointments were announced in August 2004, the "new" process involved only the most minimal of concessions.

With that recent history as background, this paper will begin by identifying five important but easily overlooked differences between the American and Canadian judicial systems. From that point, it will describe the Supreme Court of Canada and its place in the Canadian judicial system, explain the appointed process for the Court and the way this process has changed in recent decades, identify the major challenges in devising a functional appointment process, and describe and discuss some of the proposals that have been made for change.

II. THE CANADIAN AND AMERICAN COURT STRUCTURES BRIEFLY COMPARED

At first glance, the Canadian and American judicial systems--and specifically the place of the respective Supreme Courts within them--could scarcely be more similar. Viewed in a global context, this initial impression is fully justified. Both high courts operate within a federal system based upon the English common law, assuming generalist judges with explicit and effective guarantees of judicial independence; multi-judge panel appeal courts immediately below the highest court; and solo-judge trials (sometimes with juries) in the courts of first resort. These characteristics sharply differentiate them from the world's most common and most widely imitated judicial system, the continental European model.

At the same time, however, the similarities do not run as deep as might at first be assumed, and several discontinuities are important:

First: The United States Supreme Court is fully entrenched within the American Constitution; although Congress may make some constrained unilateral interventions regarding its jurisdiction and procedure, the basic elements of the Supreme Court and its practices are protected not only by a strong public opinion but also by a formal document that can only be altered through difficult formal procedures.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Selecting the Supremes: The Appointment of Judges to the Supreme Court of Canada
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.