Friday, January 27, 2006

Canada vs the US: The appointment process

Seeing how one the hot button issues in US politics right now is George Bush's nomination of Judge Samuel Alito for Supreme court, I thought I'd take the time to do a quick comparison of the difference in the Canadian way of appointing judges vs. the American way.

In Canada:
  1. Step 1 is the Prime Minister chooses from a pool of candidates who he or she would like to make a Federal Justice. I'm kind of assuming they at least created a pool of qualified candidates first; there is actually no requirement for a pool of any kind but it's nice to think that they at least considered some alternatives. Anyway, back to the process,
  2. Step 2, the person chosen in Step 1 becomes a Federal Judge.
Note: Some limited vetting of the candidate is permitted after the fact but only indirectly through the Federal Justice Minister's office.

In the US:
  1. Step 1. The President chooses from a pool of candidates who he or she would like to make a Federal Justice. In this case the pool usually does exist as the names are often given to interested members of both parties.
  2. Step 2. Once the formal declaration of the nominee is made a special Senatorial committee reviews the nominees qualifications. This review process can be quite quick or take several days/weeks depending on partisan bickering or specific issues related to the nominee. This is in accordance with the Senate's role to Advise and Consent on Presidential appointments as outlined in the US Constitution.
  3. Step 3. The committee holds a vote as to whether or not to release the candidates name to the Senate floor. If okay'd by the committee, the nominee's name is sent to the floor of the Senate for an up or down vote. If not okay'd, the nomination is effectively quashed.
  4. Step 4. There are open debates held on the floor of the Senate as to the qualifications of the Presidents nominee. Like the committee hearings, this has no set time table and can be completed in a matter of hours or days/weeks.
  5. Step 5: After the debate on the floor is completed, the Senate votes either for or against the Presidents choice. Again, as in the committee hearing, if the nominee gets less than 50% of the vote the nomination process is effectively stopped.
  6. Step 6. If the nominee passes the various votes, they are sworn in in their new position as Federal Justice.
Note: In some cases, although rarely exercised, the President has the power to make appointments while the Senate is in recess. This is generally only used when the President deems that the position cannot be left vacant until after the Senate comes back into session. Appointments made this way, unlike the regular process, are only temporary and still require Senatorial approval once they return.

Now, going by the televised Alito hearings as well as all the comments the various Senators have felt the need to say to the press, you may get the impression that the American system is way too adversarial and time consuming, in cases like Alito I'd have to agree. When every single person, black, white, male, female, conservative or liberal comes out to say what a great Judge someone is you'd figure the appointment process should be a cake walk. The fact he has twice been through this process for less Federal court positions and that the American Bar Association gave Alito it's highest rating, and you'd have to wonder what these elected officials are smoking to make them doubt his worthiness to sit on the bench. But that's the point, Senators are elected and therefore are a safety system to make sure their constituents get a voice in the process.

Contrast that with the Canadian system in which one person, who unlike the US is not even directly elected to their position of power, gets to make all the decisions. So instead of 101 elected people debating the worthiness of a candidate you get 1. It's that type of vetting process that is meant to shine the light on patterns like this (h/t Stephen Taylor).

It may not be perfect, but in this regard, I'd take the US system over the Canadian, any day. Anything that takes the power out of the PMO's office and puts it into the hands of the elected representatives is a plus in my book.


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