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Chapter 5

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Political Science
POLS 3130
Dennis Baker

POLS 3130 CHAPTER 5: JUDICIAL SELECTION • At both federal and provincial levels, judicial appointments in Canada are executive appointments. • Provincial Government's are responsible for staffing S. 92 courts, while the Federal Government staffs all federal courts and each province's S. 96 superior trial and appellate courts. • Courts are seen more as “policy-makers” in addition to “adjudicators” - esp the SCC. • Interest and controversy surrounds the appointment of courts. ◦ 2006 – Harper wanted to tackle the great power of the SCC (esp with their process of appointment), so Harper made it mandatory for a Supreme Court nominee to submit to a public hearing (ie. Hear questions from representatives of the 4 political parties in the HOC). ▪ Generated public outcry because public argued Canada was adopting American influence by doing this. ◦ However the process overall was different from America's process. ◦ Cndn process was more restrained. The candidate being questioned doesn't have to answer questions covering controversial issues (ie. Abortion, gun control, same-sex marriage). Opening statement's are 20 mins, where 12 Members of Parliament ask questions. Entire questioning period takes 3 hours, where American system is more aggressive. Harper would then chose if the questioned candidate would pass. 1) JUDICAL SELECTION PROCESS IN COMPARATIVE PERSPECTIVE • It's imp to study judicial selection of other countries to have a diversity of choices to mimic. It can also provide insight into the values underlying the choice of a particular method. • Canada uses executive appointments for selecting judges - a reflection of English roots. • In Canada there's a division of appointment powers btwn fed and prov executives. ◦ Prov appoint judges = S. 92 courts. ◦ Fed appoints judges = S. 96 Provincial Superior Court, fed (Trial and Appeal) courts, the Tax Court, and Supreme Court. UNITED STATES FEDERAL COURT SELECTION • Fed Government appoints judges to all levels of fed court (District, Circuit, Supreme Court, Tax Court). • State government's are responsible for selecting judges to all state-level courts. ◦ State government's have a lot of discretion. • U.S. fed court judges are selected by processes like Canada because it involves appointment by the executive branch. But it differs in constitutional requirement that presidential appointments be confirmed by the Senate. ◦ Process has 3 major steps: ▪ President nominates an individual, Senate Judiciary Committee holds hearings on the nominee and makes a recommendation, and then a vote takes place on the Senate floor with the nominee confirmed by a simple majority vote. • There are 94 lower federal courts with at least 1 in each state. • Presidents are less involved in appointments. Their White House (and/or Justice Department) appoint instead. • Lower Fed Court appointments have been nominated by the nomination of “senatorial courtesy.” If a senator objects to the President's nominee, the Senate as a whole will vote against the confirmation. ◦ The President's staff discusses potential nominees with the home-state Senators and often takes recommendations from them --> it reverses the primary power of judicial selection and creates “Senatorial appointment with advice and consent of the Senate.” • Senators play a weaker role in fed circuit (appeal) court appointments. • Since U.S. Supreme Court's been taking fewer cases in the recent years, fed courts of appeal have increased in their importance. They now provide the final word on many cases. • President's and Senators pay most attention to Supreme Court appointments. Presidents are also more involved in appointment processes of the Supreme Court. • In Supreme Court, media, general public, and interest groups all play an imp role in the appointments. They pressure decision makers at appointment and confirmation stages. Interest groups can also hold strong opinions and try to influence their opinions on nominees. • American judges are appointed for life. • U.S. fed selection judges emphasize independence more than accountability. U.S. STATE COURT SELECTION SYSTEMS • A few states practice executive appointment. Legislators in Virginia and South Carolina select judges for their courts. • 87% of state judges must face some form of election in order to remain on the bench. • Some use “partisan elections,” some use “retention elections” (form of “merit selection”). ◦ Retention elections – held after a judge has sat on a court for some prd of time. ◦ Merit selection – committee composed of lawyers and lay persons send a list of names (3-6) to the governor, who then selects one of those names to fill the vacancy on the bench. • American's heavily favour judicial elections. Judges are constrained by the need to appear neutral, so that's why judicial campaigns are often characterized by a lack of information amongst voters. • Judges also struggle in fundraising. Most obvious scarce of funds is in the legal community. Studies have found that campaign contributions may be the biggest determinant of the outcome of judicial elections. • Huber + Gordon discovered evidence that judges “become significantly more punitive the closer they are to standing re-election.” • Hall stated that judges facing competitive elections were more likely to vote with the majority and avoid unpopular dissents on politically sensitive issues. • In many states it's uncommon for a sitting judge to face competitions in an election – particularly in the lower court. • 63% of Canadian respondents were in favour of electing judges in Canada. • Former ONT Chief Justice, Roy McMurtry worried that re-election pressures could influence judges verdicts and sentences. • People worrying about the disadvantages of electing judges but still favour some aspect of accountability champion the merit selection method for selecting judges. • Merit selection’s often to provide an attractive balance between judicial accountability and judicial independence. • American selection systems generally place a heavy emphasis on accountability and very little on legal competence. OTHER COMPARISONS • Accountability is foreign in many parts of Europe. Instead, many European countries use judicial independence and competence. ◦ Ie) France trains people to become judges. When they finish training, judges take positions at the lowest court level in the provinces. They gain their positions based on their examination scores. ◦ The Counseil Superieur de la Magistrature governs the nomination and promotion of judges in France. It's made up of 4 ppl: 6 judges + 6 prosecutors. ◦ Same exists in Spain and Portugal. • In Germany, those who wish to become judge must apprentice with the judiciary before being selected through a competitive examination. • In Italy, becoming a judge is based n a competitive examination. Judicial promotion in Italy is based on seniority, not performance. • European Civil Law systems emphasize technical expertise. Accountability isn't an important consideration. • Many Common Law countries (ie. Britain, Australia, New Zealand, and Canada) emphasize technical expertise less than the Civil Law countries and accountability less than the U.S. They speak a lot about their goal for judicial independence. • Britain's decreased the role of the executive branch in favour of an independent non-governmental body. 2) CNDN PROVINCIAL COURT JUDGES • Prov government's appoint 48% of all judges in Canada. • Selection for S. 92 courts has followed executive appointment (appointment by Cabinet). ONTARIO MODEL • ONT made rule that judicial candidates had
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