In the past year, the highest courts of both Canada and the United States have seen historic appointments. On July 1, 2021, Mahmud Jamal became the first person of colour on the Supreme Court of Canada (SCC). More recently, on August 19, 2022, Michelle O'Bonsawin became the first Indigenous person to be nominated to the SCC. In the United States, Ketanji Brown Jackson recently became the first black woman to be appointed to the Supreme Court of the United States (SCOTUS).
In light of these recent historic appointments, this article provides an overview of the appointment processes by which both countries made 2022 a historic year for their respective apex courts.
- Recent appointments to both countries' highest courts have prioritized racial diversity on the bench, as reflected by these historic appointments.
- Despite differing formal judicial appointment processes in the United States and Canada, more recently the processes have exhibited some convergence in practice.
- In the U.S., the judicial appointment power is 'shared' by the president and Senate. The president makes a nomination with the advice and consent of the Senate, in a process which now involves hearings before the Senate Judiciary Committee.
- In Canada, the judicial appointment power is formally vested in the governor general, who acts on the advice of the prime minister. There is no legislated appointment process, and until recently the selection process was conducted informally by the prime minister.
- Since 2003, successive Canadian governments have introduced more formal consultation processes for the selection of nominees, but no consistent method has emerged.
- In 2006, Prime Minister Stephen Harper's government introduced a process by which a nominee was interviewed by an ad hoc committee of the House of Commons, but that committee process was also not consistently employed.
- In 2016, Prime Minister Justin Trudeau created a new independent and non-partisan advisory board (Advisory Board) to recommend qualified, functionally bilingual candidates to the prime minister.
- In addition to other diversity considerations, Canada's status as an officially English/French bilingual country and its commitment to promoting French language rights may turn bilingualism of SCC justices into a legal requirement, if Bill C-13 passes.
The U.S. approach
The U.S. Constitution provides that the president "shall nominate and, by and with the Advice and Consent of the Senate, shall appoint [...] judges of the Supreme Court." While this process has undergone some changes over time, the essential feature remains – that the appointment power is shared between the president and the Senate.
The process is two-fold. A candidate must first be officially nominated by the president, then confirmed by the Senate. The Senate's "advice and consent" function, without any formal involvement of the House of Representatives, acts as a safeguard on the president's exercise of the nomination power. In the Senate confirmation process, a nominee is first considered by the Senate Judiciary Committee and then acted on by the Senate as a whole.
The timing of any appointment to SCOTUS is unpredictable. To ensure judicial independence, U.S. federal judges enjoy life tenure. A vacancy on the Court occurs only when a sitting justice resigns, retires, dies, or is impeached. While nominees are considered based on their strong legal credentials, distinguished careers, and personal attributes, presidents are widely understood to choose nominees on the basis of judicial philosophy and the ability to attract sufficient political support to obtain confirmation. After the president formally submits a nomination to the Senate, the nominee is evaluated by the American Bar Association's Standing Committee before the Senate confirmation hearing.
The Senate confirmation process is a genuine hurdle to a candidate's appointment. In recent history, a nominee has been withdrawn due to lack of Senate support, while another failed to attract sufficient Senate votes to be confirmed. Historically, the confirmation of judges was subject to the Senate filibuster, which can only be overcome by a supermajority, but the filibuster for judicial nominees other than to SCOTUS was removed in 2013, and for SCOTUS nominees in 2017. Senate confirmation of a SCOTUS appointee is now possible with a simple majority vote.
The current make up of the SCOTUS is nine judges – an odd number to ensure that any decision can have a majority – with an almost equal gender composition with four female justices and five male justices (including the chief justice). There has been some recent discussion about the possibility of expanding the SCOTUS, however no concrete steps have been taken to do so.
The Canadian approach
Unlike the constitutionally-mandated U.S. process, Canada's system of appointments is governed by the Supreme Court Act, R.S.C., 1985, c. S-26, which vests the appointing power in the governor in council.
By convention, this is exercised on the recommendation of the prime minister. Historically, this meant that the prime minister alone had broad discretion and final authority in selecting and appointing SCC judges, and the process was criticized for lacking transparency. By convention also, the SCC's membership has always included fixed regional representation, with three judges drawn from Ontario, three drawn from Québec (which the SCC has held to be constitutionally mandated), two from the western provinces, and one from Atlantic Canada. Departing judges are replaced by a nominee from the same region.
Over the past two decades, successive governments have implemented processes to narrow the prime minister's discretion in selecting candidates and inject transparency into the nomination process. Today, qualified candidates can apply for an appointment to the SCC when there is a vacancy. An Advisory Board for the Supreme Court of Canada judicial appointments — composed of eight members consisting of lawyers, a legal scholar, a retired judge, lay members of the community, and more recently representatives of equity-seeking groups — provides non-binding, merit-based recommendations to the prime minister on SCC appointments. On April 4, 2022, the prime minister announced the addition of an indigenous representative to the Advisory Board in furtherance of the government's commitment to reconciliation.
Criteria for an appointment to the SCC are published on the website for the Office of the Commissioner for Federal Judicial Affairs, and include meeting the statutory requirements of the Supreme Court Act, functional bilingualism in English and French, individual qualifications related to the skills and experience of the candidate, and criteria related to the institutional needs of the Court, such as subject matter experience and ability to contribute to the Court reflecting the diversity of Canadian society.
The Advisory Board meets and consults with a wide variety of Canadian legal and judicial organizations and then decides on a non-binding "shortlist" of recommendations. These recommendations (or any objections) would not be binding on the prime minister and only aim to hold the prime minister accountable for their selection. Once the prime minister has selected a nominee, the minister of Justice and the chairperson of the Advisory Board then appear before the House of Commons Standing Committee on Justice and Human Rights to explain their selection.
This follows an innovation introduced in 2006, when an SCC nominee first appeared before an ad hoc committee of Parliament for a televised interview. This hearing process, which has been employed inconsistently since 2006, resembles U.S. confirmation hearings. However, Parliament has no power to defeat a nomination and Canadian hearings serve no constitutional function. They are moderated by a law professor and their purpose is to allow members of the public and Parliamentarians to become acquainted with the nominee.
The parliamentary hearing for Justice O'Bonsawin was held on August 24, 2022.
After Justice O'Bonsawin's appointment to the SCC is complete, the Court's gender composition will be the same as the United States–with four female justices and five male justices (including the chief justice). This will restore the number of female to male judges that prevailed for nearly two decades, but was briefly lost when Justice Abella retired in 2021 and was replaced by Justice Jamal. In the latest selection process, 38% of applicants were women and that number is expected to rise.
While functional bilingualism is not a legal requirement yet, it was added to the selection criteria by Prime Minister Justin Trudeau's government for appointment to the SCC. On March 1, 2022, Bill C-13, amending the Official Languages Act was introduced, and if passed, it would require SCC judges to understand both official languages without an interpreter.
Despite different historical traditions and constitutional systems, the Canadian and U.S. systems for appointment of Supreme Court justices share some similarities.
In both countries, nominees are selected by the executive. In the U.S., the president's exercise of the appointment power must take into account the Senate's role in confirming a nominee. In Canada, governments have voluntarily limited the prime minister's discretion to select a nominee with a view to injecting some transparency in the nomination process.
Both countries' top courts play a central role in the lives of their nations by issuing decisions of great social importance. Reflecting this, recent appointments to the SCOTUS and the SCC have emphasized adding diversity to the Courts' compositions so that the judges who sit at the apex of their legal systems better reflect the public that they serve.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.