Canada, Politics, SCOTUS

The View From Up North: And I Thought Canada’s Supreme Court Nomination Process Was Screwy

This Canadian lawyer thinks America's political divisiveness makes its Supreme Court nomination process look like a joke.

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Canada View From Up North I admit, I have been hard on the Canadian Supreme Court nominating process in the past. In Canada, as you probably know, the Prime Minister can call up a random lawyer and say, “Hey, guess what, you’re the new Supreme Court justice.” He doesn’t need the advice or consent of anybody. As long as the candidate attains the minimal thresholds (i.e., a lawyer for 10 years, meets the geographic requirements, etc.), whoever the Prime Minister wants, he gets. End of story.

That raises some issues, of course. It causes some concern with pundits and Supreme Court navel-gazers who think the whole process should contain just a smidgen of transparency. At least tell us why you picked Lawyer X, Mr. Prime Minister. But, the PM doesn’t have to justify his choice to anyone.

That leads to further concerns that the Prime Minister can stack the high court with judges who share his ideological bent without having to justify his selections.

I don’t share those concerns. Canada doesn’t have the ideological battle lines of the U.S., for example. We don’t have vast groups prepared to go to war over abortion, gun rights, the death penalty, etc. We don’t have filthy rich lobbying groups buying putting pressure on our politicians. Yes, our Supreme Court decides important legal questions. But, whether the Court is stacked with liberals or conservatives doesn’t seem to make much difference to the average Canadian’s life.

In the end, I’m more concerned about intelligence. I want the smartest, wisest, most studious judges on the highest court. I want legal superstars sitting in the most important judicial seats, whatever their political bent. That’s where I think the Canadian system fails. The Prime Minister can appoint B+ legal minds to the Supreme Court and there is nothing anyone can do about it. That’s the system’s biggest flaw, IMHO.

As much as I criticize the current system, however, I recently concluded it’s better than the U.S. system — or, at least, not as screwy. With the untimely/timely — depending on whether you adored him or threw darts at his picture — death of Antonin Scalia, we are about to witness the U.S. system, in full regalia.

I have a few questions about impending Hurricane Nominata. Perhaps a U.S. Constitutional scholar can answer these:

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1. I admit I haven’t read it from cover to cover, but where does the phrase “lame duck” appear in the U.S. Constitution?

2. In what democratic country do members of a legislative branch tell the country’s properly elected President not to bother exercising his Constitutional authority to appoint a Supreme Court justice because we, the Senate, won’t even consider your nomination on the merits? In the immortal words of conservative stalwart, Guy from Boston, “Are you sh*tting me?”

3. Why has American politics descended into such incredible divisiveness? Hey, America, doesn’t all the political rancor, gridlock, and childishness make you sick?

4. What polling data suggests to Ted Cruz’s handlers that telling the President to stick the nominating process up his butt is better than actually shutting up, holding confirmation hearings and, then, defeating the nomination?

After Justice Scalia’s death, Senator Cruz released this statement:

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Today our Nation mourns the loss of one of the greatest Justices in history – Justice Antonin Scalia. A champion of our liberties and a stalwart defender of the Constitution, he will go down as one of the few Justices who single-handedly changed the course of legal history.

Senator Cruz clearly admires a man who is lauded as a leading proponent of originalism in Constitutional interpretation. This theory, as I understand it, requires the reader to focus on the ordinary meaning of the document’s text. Article II of the Constitution says the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”

Those are all ordinary words that I don’t need a dictionary to understand. I looked twice and didn’t see the words “lame duck” anywhere in that section to suggest he can’t exercise the power during the final year of his term. Wouldn’t the Founding Fathers have put that into the supreme document if that’s what they intended? Maybe they forgot?

I also see the word “shall.” I read that as an imperative — a Constitutional obligation — that the President must exercise his power of nomination and, if confirmed by the Senate, he must appoint the candidate. As I interpret the plain meaning of this part of Article II, the President’s failure to nominate a Supreme Court candidate would be a failure to uphold the Constitution. But, that’s just my interpretation. I’m Canadian (like Ted Cruz). I’ve never taken a U.S. Constitutional law course, so my interpretation of Article II is probably suspect.

But, it shouldn’t be too tough for Ted Cruz to get it right. Isn’t he supposed to be some of kind of Harvard Constitutional ninja and Scalia acolyte? WWSD? (What Would Scalia Do?) Would Justice Scalia, Constitutional stalwart, agree with any suggestion that POTUS should breach his Constitutional obligation to make a Supreme Court nomination because POTUS is a limping mallard?

Try making that suggestion to the duck who runs North Korea — bullet in the head. The irony is, only in a democratic country can a Presidential hopeful actually suggest something so, what’s the word — undemocratic — and get away with it.

Here’s what Senator Cruz said on Meet the Press a few weeks ago:

The Senate’s duty is to advise and consent. We’re advising that a lame-duck president in an election year is not going to be able to tip the balance of the Supreme Court.

That’s jumping the gun, Senator. In a plain-text reading, advice comes after nominate. Appoint comes after consent. There’s a Constitutionally delineated process here. Nominate, then advise, then consent (or don’t), then appoint (if there’s consent). Maybe you aren’t a Constitutional ninja after all.

More likely, Senator Cruz is just expedient. He pushes the parts of the Constitution that work for him — also known as the parts that will get him elected President. Scalia expounded originalism. How about we call Senator Cruz’s Constitutional interpretation “Partialism”? Take the parts that win you the Big Chair, discard the rest.

If he gets elected, you’ll have to revise the Oath of Office as follows:

“I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend nearly all of the Constitution of the United States.”

5. Isn’t the United States the beacon of democracy? Does the United States enjoy it when the rest of the world chuckles at its hypocrisy? We get CNN, you know. We get a belly laugh over your politics. It’s way more fun than ours, trust me. Part of the reason why it’s so much fun is the way you hold yourselves out to the world versus the way you act at home. As my uncle used to say as he slugged Canadian Club from the bottle: do as I say, not as I do…

I love Americans. You’re our brothers and sisters, our closest and most important ally. You gave us Don Knotts and Garth Brooks and Vegas and baseball, and so much more. But your political system/mess is unbefitting a country of greatness. And, it might be your eventual undoing…

By the way, America, Ted Cruz was born in Calgary. We gave him to you. You’re welcome. I think I speak for all of Canada when I say, you can’t give him back.

That’s the View From Up North. Have a rancor-less week.

Steve Dykstra is a Canadian-trained lawyer and legal recruiter. He is the President of Steven Dykstra Law Professional Corporation, a boutique corporate/commercial law firm located in the greater Toronto area. You can contact Steve at steve@stevendykstralaw.ca. You can also read his blog at stevendykstra.wordpress.com, follow him on Twitter (@Law_Think), or connect on LinkedIn (ca.linkedin.com/in/stevedykstra/).

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