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Chapter 5

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University of Guelph
Political Science
POLS 3130
Troy Riddell

Canadian Courts Ch. 5 Judicial Selection POLS 3130 Marshall Rothstein  Supreme court judge nominee who was the first to go before the MPs and be questioned during a “hearing” o This is because Harper & other Canadians widely criticized the secrecy of SCC appointments  Contrasted to the US hearing; the Canadian one held for Rothstein had a mediator and rules about what kinds of questions the candidate did not have to answer  Stresses the point that executive appointment still continues in Canada however, it occurs much more publicly than before o Also shows how different selection systems demonstrate different values and emphasis on judicial independence and judicial accountability  In Canada, judicial independence has been focused on more than judicial accountability o Compatible with a traditional view of judges; that they interpret the law without considering their own policy preferences or external influences o Canada may be changing direction – proponents of judicial accountability argue that unelected judges make policy and should be held accountable for their decisions The Judicial Selection Process in Comparative Perspective  Executive appointments of judges in Canada reflects our English roots o E.g. King‟s courts & King‟s judges in England (reflects early executive appointment)  Canada has divided selection power between federal and provincial government o Federal government appoints s.96, s.101 judges and the Provincial government appoints s.92 judges United States Federal Court Selection  More obvious division of selection – federal government responsible for selecting judges to ALL levels of federal court and state governments select judges to all state-level courts  Federal court judges o Selection process similar to Canada, involves appointment by executive branch o The difference is that presidential appointments must be confirmed by the senate o 3 step process  President nominates an individual  Senate Judiciary Committee holds hearings on the nominee and makes a recommendation  Vote takes place on the senate floor and the nominee is confirmed by a simple majority vote  Role of president and senators varies depending on the level of court o There are 94 federal (district) courts spread across the US (at least 1 per state) o The large number of judges as well as the application of each court to a single state has led Presidents to be less personally involved in these appointments  Someone from the White House staff or Justice Department will appoint these judges  Lower federal court appointments occur by senatorial courtesy o This gives the senators from the state with an almost veto-like power (the whole Senate will vote against the confirmation of the President‟s nominee) o President‟s staff tends to discuss potential nominees with the home-state senators and takes recommendations from them  Federal circuit (appeal) courts stretch over state lines, President takes increased interest in appointment of these judges o US Supreme Court has been taking fewer cases, so these appeal courts have the “final say”  Also, US SC hasn‟t had a vacancy in 11 years so all the action in judicial selection was happening at the lower courts o Few circuit court appointments are defeated in the Senate but other methods of preventing confirmations are growing  Example: 1990s Republican majority on the Senate J.C failed to hold hearings on a large number of Clinton‟s nominees  Supreme Court nominations are still paid the most attention by Presidents and senators o Presidents tend to be personally involved – have meetings with candidates o The media, general public and interest groups play a more significant role  Increases the pressure on decision makers at the appointment and confirmation stage o Most SC nominations are confirmed by the Senate however there have been exceptions (3 defeats, 3 withdrawals and some close votes) o The ideology of the nominee as well as its influence on the justice‟s vote wile on the Court has been the main point of contention before the Senate  Nominations that will change the ideological balance of the court have been the most controversial  US federal judges are appointed for life; this is supposed to make them more immune to outside pressures o Federal selection does not emphasize independence more than accountability o Confirmation process could be an added layer of accountability missing in Canada United States State Court Selection Systems  More emphasis on judicial accountability; dominant method involves some type of public election (occurs for 87% of judges whether its for appointment or to continue serving) o A few states practice executive appointment (w/ or w/o state senate confirmation) o Legislatures in Virginia and South Carolina select judges  Some states use partisan elections – the party of the candidate is placed on the ballot  Retention elections – merit based approach; occurs after a judge has sat on a court for a certain amount of time o A committee composed of lawyers and lay persons sends a list (3-6 people) to the governor who chooses 1 name to fill the spot o After some time, voters are then asked whether they wish to retain the judge (no other names on ballot) o Does not remove politics from the process (i.e. many committee members are politically active people)  Problems faced by judges during elections: o Difficulty discussing their stance on issues of importance to the public because they are supposed to appear neutral o Difficulty with fundraising – the obvious source is the legal community however, there are problems with taking money from those who may appear before your court  Important because judicial elections have been increasing costs  Studies show that the more money you have the more influential this will be in attaining the position  Elections are closest to the accountability end of the spectrum o Raises concerns about judicial impartiality o Evidence suggests judges become more punitive the closer they are to standing for reelection  Many judges in states with judicial elections come to the bench first through appointment o Most states grant their governor the power of interim appointment, which allows the governor to appoint someone should a mid-term resignation occur  Uncommon for a sitting judge to face competition in an election (particularly at the lower courts) o Implies that accountability may not be accomplished (if there is only one candidate to choose form)  63% of Canadians were in favour of electing judges in Canada (jurists do not agree with this) o threatens impartiality; re-election pressures can influence verdicts and sentences  American selection systems place heavy emphasis on accountability and little on legal competence o No specialized training is necessary to be a judge and the public is not equipped to judge legal competence when they are voting for candidates Other comparisons  Europe - much more weight given to judicial independence and competence o In France, judges must train for 3 years at a specialized school in France and gain positions based on exam scores  Conseil Superieur de la Magistrature (CSM) governs nomination and promotion of French judges(4 lay people, 6 judges, 6 prosecutors make up committee)  Spain and Portugal are similar o In Germany, those wanting to be a judge must apprentice with the judiciary before being selected through a competitive examination o In Italy, it is based solely on a competitive examination however, promotion is based on seniority, not performance  Overall, European civil law systems emphasize technical expertise  Common law (commonwealth) countries (i.e. CAN, AUS, NZ, GB) put less emphasis on technical expertise (compared to civil law) and accountability (compared to the US) o Britain made changes to their process to decrease the role of the executive branch in favour of an independent non-governmental body (i.e. Judicial Appointments Commission) Canadian Provincial Courts (s.92) Judges  Provinces are exercising significant power through their appointments o Provincial governments appoint 48% of all judges in Canada o Follows executive appointment (i.e. appointment by cabinet) o Processes differ between provinces and time period  First century of provincial appointments was dominated by patronage  1968 report showed that there are isolated cases where a judge who isn‟t a supporter of the party in power was selected for office (quite rare) The Ontario Model  ONTARIO was the first province to change its selection process o Judges have to be experienced lawyers and in 1968 introduced a 7 person Judicial Council o This council is responsible for evaluating potential candidates and reporting its conclusions to the Attorney General  Nothing requires the AG to appoint the candidate with the highest evaluation but it was presumed they would  This system served as a way to weed out undesirable candidates however, does not stop patronage appointments  New method of appointing judges in the form of the Judicial Appointments Advisory Committee (1995) o 13 members; 7 lay persons selected by AG, 2 provincial judges selected by province‟s Chief Judge, 1 member of Ontario Judicial Council, 1 lawyer (from Ontario BAR) and 1 lawyer appointed by County and District Law President‟s Association o some argue 7 lay persons is too much as they are unable to effectively evaluate the professional excellence of the candidates but others argue this is an advantage because they are better suited to evaluating additional judicial skills o committee composes a short-list from qualified applicants and selects individuals off that list to interview  After each interview, committee members vote on candidates and submit a ranked list of at least 2 names to AG who must select a judge from the list (they can ask for a new one though) o Committee criteria includes – professional excellence (achievements, experience, involvement in professional activities that keep them up to date with the law), ability to undertake administrative tasks, community awareness, knowledge of and interest in social problems, their sensitivity to changes in social values related to criminal and family matters  Personal characteristics (i.e. ability to listen, respect for dignity, moral courage, high ethics) and demographics are also considered to make Ontario judges more representative of the population o This committee reduces the executive‟s discretion and limits political influence on the process  Though it does not entirely remove politics, this process has improved quality of appointments and increased representativeness of the Ontario population Other provinces  Followed Ontar
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