When Canadian Prime Minister Justin Trudeau began the process of selecting a new Supreme Court justice last year, he started by soliciting applications. Fourteen candidates raised their hands. They filled out questionnaires, and an independent advisory board reviewed their qualifications.
But it was perhaps what happened next that would surprise Americans. When he named his pick — Alberta judge Sheilah Martin — in November, his political opponents welcomed the choice. “An extraordinary jurist,” said a member of an opposition party in Parliament. Another praised Martin as someone who is “well-respected” and had the right “judicial temperament.”
When other countries select justices to their highest courts, they tend to do so with minimum public controversy. That is largely because the choices are not seen as the apex of a political struggle with consequences that could endure for a generation.
For legal observers in other countries, the spectacle unfolding in the United States is something to avoid.
“Watching the U.S. process is almost like watching a warning sign: ‘This is what not to do,’ ” said Emmett Macfarlane, a political scientist at the University of Waterloo in Canada. He noted that proposals to move Canada toward a U.S.-style confirmation process have been rejected out of fear that they would politicize the court.
In many countries — including Canada, Brazil, Australia, South Africa and Britain — justices on the highest court must retire by a certain age, usually 70 or 75. That makes for predictable and regular turnover on the bench and means that justices cannot extend their influence on the court thanks to longevity.
Another feature that comes up around the world is the involvement of a country’s judicial and legal establishments in selecting candidates for the highest court. In India and Japan, either organizations of judges or mainstream legal associations have formal input into the process. (President Trump, meanwhile, announced his first list of potential nominees before the 2016 election, with significant input from the Heritage Foundation, a conservative think tank.)
In several countries in Europe, the system for selecting justices is organized such that the process is insulated from undue political interference. In Germany, for instance, a parliamentary committee made up of members of all political parties proposes candidates to the nation’s high court. Confirming a nominee requires a two-thirds majority in Parliament, which effectively gives the opposition a veto on candidates — and tends to elevate moderate judges who are palatable to a wide spectrum of voters.
In Israel, too, appointing justices to the Supreme Court involves reaching a degree of consensus. Candidates are selected by a nine-member committee: three sitting justices, two cabinet ministers, two members of parliament and two representatives of the Israel Bar Association. Seven of the nine members must be in agreement for a candidate to be finalized.
Of course, no country’s selection process for its Supreme Court is perfect. But outside the United States, the stakes tend to feel somewhat lower. Indeed, some of the issues that have arisen in other countries would strike Americans as comparatively minor. In Canada, the political opposition welcomed Trudeau's latest pick, but some also argued that it was past time to appoint an indigenous justice. In Japan, the most controversial thing about a new justice was her insistence that she continue to use her maiden name.
Much of the difference comes down to this: In other countries, the highest court in the land is not seen as starkly ideological terrain where the nation's toughest questions will be adjudicated.
“Politics are relevant to our court, judges are human,” said Macfarlane, the Canadian political scientist. But “unlike in the U.S., it can actually be quite difficult to predict what the court is going to do” on a given case.
Canada’s Supreme Court has managed to reach unanimity even on controversial issues, including a decision to strike down a law related to assisted suicide, noted a recent article in the National Post. It is “almost impossible to imagine that occurring with (the) present U.S. court,” Carissima Mathen, a law professor at the University of Ottawa, told the paper.