02/22/2016 11:26 EST | Updated 02/22/2017 05:12 EST

A Canadian View Of The Scalia Replacement Controversy

Justice Scalia & Bryan Garner Book Talk and Signing
Justice Scalia & Bryan Garner Book Talk and Signing

To Canadian eyes, there is something both familiar and strange about the controversy surrounding President Obama's authority to name a replacement for Antonin Scalia. Several Republican candidates, as well as Senate Majority Leader Mitch McConnell, have suggested that it would be illegitimate for him to nominate a Supreme Court justice in his final year of office. In doing so, they appear to be invoking something like what Canadian constitutional scholars know as the "caretaker convention" -- the principle that, during an election campaign, the government should exercise "restraint", restricting itself to activities that are routine, non-controversial, reversible, or urgent.

The issue is familiar because, last year, then-Prime Minister Stephen Harper appointed Russell Brown to the Supreme Court of Canada only 6 weeks before the federal election (having announced that he would do so a few days before Parliament was dissolved). I criticized the timing of the appointment on the basis that, inasmuch as it took effect in the thick of an election campaign, it was at the very least in serious tension with the caretaker convention. But it is strange to see a similar kind of argument being made in the United States, since the constitutional infrastructures of the two countries are profoundly different.

As a constitutional matter, no individual is "elected" to serve as the Prime Minister of Canada. Individuals are elected to represent local ridings in the House of Commons. The Governor General then appoints individuals to serve as his or her ministerial "advisors". The Prime Minister is selected, from among the elected representatives, on the basis of who can command the "confidence" of the House. It is the fact that the Governor General's advisors hold the confidence of the elected House that makes their decisions - in particular, over who to appoint to significant public offices - legitimate in a democracy.

As a practical matter, the leader of the party that won the most seats in the federal election will typically be the person who, one would expect, could command that confidence. And, so, it can often appear as though the election - generally fought along party lines - is being over who shall be Prime Minister. But that is not quite right. It is Parliament that, constitutionally speaking, holds the power. It can withdraw its confidence from the Prime Minister at any time.

Except during an election. Once an election is called, Parliament is "dissolved". There is, of course, still a need for government. Because there is no opportunity for Parliament to express a lack confidence in the Prime Minister, however, it is widely understood that the government should assume no more than a "caretaker" role. In a paper recently published, I argued that the convention flatly precludes the appointment of Supreme Court judges once Parliament has been dissolved. There is, quite simply, nothing routine or non-controversial about the appointment of judges who have the power to interpret the Constitution or strike down legislation.

As all this suggests, the constitutional underpinnings of the caretaker convention simply do not exist in the American context. The President does not draw his authority from Congress or the Senate. He is directly elected to office and accountable to the public at large. (The role of the Electoral College obviously complicates that picture slightly but, for my purposes here, only slightly.) That alone suggests that no analogy can be drawn.

Leaving that aside, some of the claims made about the scope of any such caretaker convention in the United States appear downright curious. One might understand suggestions that, following the election in November, President Obama would lack the public mandate and legitimacy to nominate individuals to the Supreme Court. But the idea that Obama lacks that authority, with almost a full year remaining in his presidency, is remarkable. Certainly, although it is rare, other American Supreme Court justices have been appointed in election years, suggesting that there is no "convention" categorically precluding it. Even Russell Brown was appointed to the Supreme Court of Canada only a short time before the 2015 federal election - and, as we have seen, the Prime Minister's legitimate authority to do so was far more contentious.

Finally, there is a profound difference in the nature of the executive power exercised in the two countries. President Obama has the authority to make a nomination, but it ultimately falls to the Senate to provide "advice and consent". This is an important check on presidential power. By contrast, the Prime Minister has the authority to appoint someone to the Supreme Court of Canada with or without the consent of Parliament. (There are limits on who is eligible for appointment, and the Supreme Court was put into the awkward position of having to declare one of its own members ineligible only a couple of years ago, but the Prime Minister nonetheless has considerable room to maneuver.) The suggestion that the Prime Minister's power to make appointments during an election campaign would be greater than the President's power to nominate is jaw-dropping.

There is one further point I would make about the strangeness of this episode. Brown's appointment was problematic, but it happened, and with relatively little public fuss - at least about its constitutionality. This no doubt had much to do with Brown's impeccable judicial credentials, and the sense that he will make a valuable contribution to the Supreme Court for many years to come. The fact that Brown's appointment was scarcely challenged on constitutional grounds, whereas the authority of President Obama to make a nomination has already been the subject of vigorous debate, says much about the extent to which the Supreme Court of Canada has largely avoided becoming the political football that the US Supreme Court has become in recent years.

Though Canada's high court has sometimes been accused of "judicial activism", there is a wide degree of acceptance that its rulings are not driven by raw political considerations, and individual judges are not associated with straightforwardly liberal or conservative positions. There is, for this reason, less risk that any single appointment will shift the ideological balance on the Court. One of the reasons why I found the timing of the Brown appointment so troubling was that it risked turning the Court into an election issue, inviting politicians to weigh in on the merits of individual judges. By contrast, in the United States, the convention is invoked precisely so that the Supreme Court can be used to political advantage. In this way, the caretaker convention is turned upside-down.

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