What would happen if a Justice of the Supreme Court of Canada died during an election campaign? Would the Prime Minister have the right to appoint a successor? The answer to this question requires us to think about parliamentary democracy from its first principles. In parliamentary democracy the executive and the legislative branches are fused because the Prime Minister and cabinet are also members of parliament. When an election is called parliament is dissolved so they no longer have parliamentary seats and they no longer have legislative power.
This limitation is illustrated by the media during an election campaign referring to Justin Trudeau as Liberal Party leader rather than as Prime Minister.
The ultimate authority during an election campaign is the Crown, that is to say the Governor General who as the Queen’s representative is head of the Canadian government. The Prime Minister and cabinet still retain their role as advisers to the Governor General. Conceivably a Prime Minister could nominate a Chief Justice during an election campaign. This would require only an order-in-council, the Canadian equivalent to an executive order in the US. However, it is most unlikely that any Governor General would sign an order-in-council appointing a new Justice.
The Prime Minister still retains a role as the Governor General’s adviser that could be exercised during a crisis. Consider the following situation that happened during the election campaign between December 1979 and February 1980. During the Iran hostage crisis, six American diplomats were being sheltered in Canadian diplomatic residences in Tehran. The Canadian government was attempting to get them out of Iran safely and the Prime Minister and Minister of External Affairs were overseeing that initiative.
The Canadian government had to create Canadian passports with false identities as Canadian citizens that these six Americans could use to leave Iran. This required an order-in-council and obviously the Governor General at the time signed it. This shows an instance when in a crisis the Prime Minister and cabinet were continuing to function as the Governor General’s advisers.
Let’s turn to the situation in the United States. The constitution gives the President the right to exercise all his powers right up until noon on January 20th in the year following an election and it also gives members of the Senate the right to exercise their powers up until their replacement early in January. The constitution permits the president to nominate a justice to the Supreme Court even during an election campaign. I suppose a very clear precedent for this would be the ratification of the 13th amendment by the House of Representatives on January 31, 1865, which was during the lame duck period. This was an enormously consequential decision.
Looking at the situation today, the Democrats have two possible responses once Trump nominates a new justice who in all likelihood will be a she,her,hers Federalist Society-approved person. They should make clear to their supporters the stakes of the election campaign, as this person would shift the balance of power in the Supreme Court to the Federalist Society position about all sorts of important policy issues. So the election campaign becomes not only a referendum on Donald Trump but also on a soon to be nominated justice of the Supreme Court. Second, if Biden is elected and the both the House and the Senate have Democratic majorities, then Biden can plausibly threaten to add two new seats to the Supreme Court. This might lead the Republican lame duck majority in the Senate to consider not confirming the nomination.
Examining the situation from the standpoint of institutional design it seems to me that parliamentary democracy has it just right. We follow the principle that once an election is called the government has no authority to make major decisions. Through the Governor General and orders-in-council we have a mechanism that permits crisis decision making during that period.
The US constitution’s lengthy lame duck period, as this post’s rubric claims, permits bad decisions to be made with zero consequence. I regret to say that the constitution, after over two centuries, is yet again proving itself to be inflexible and destructive and is contributing to the ongoing erosion of democracy in the US.