Imagine Merrick Garland on Canada’s Supreme Court

by Jack Locke

With the foofaraw surrounding the appointment of Merrick Garland to the US Supreme Court, why doesn’t President Barack Obama just trade him to Canada? Yes, trade him to Canada.

Trade in its simplest form can be explained as: I give you, you give me.

As any sports fan knows, trade need not be confined to economics, goods, or money. Trade can be inserted in the area of law courts, ipso facto. Why not?

At present, the United States Supreme Court is missing one member on the bench, following the recent death of Justice Antonin Scalia. Whereas, Canada’s Supreme Court will become one member short now that Justice Thomas Cromwell has announced his resignation at the youthful age of 63. Yes, Thomas Cromwell, but not the 16th century lawyer who served King Henry VII.

Why not make a trade? One judge for one judge.

I know many in-the-box Americans will be thinking: the two countries have radically different laws. Yes. But what do laws have to do with justice? Really.

If you’ve ever had the occasion to read a Supreme Court decision, either Canadian or American, with majority or dissenting opinions, you’d know that the judgements are about legal ideas, abstract concepts, and occasionally the written law. Sometimes the ideas are ancient, steeped in historical conflict, and sometimes they are modern or novel.

And if you have read any number of decisions, you would know that justices of the court often disagree on what is the law. And that causes rancor within the family, so to speak. That’s why I propose a high-court marriage, a blending of two courts that are situated only 565 miles apart.

How two different countries define justice is good to know when you want to prevent wars from starting. And perhaps this model of judicial integration could one day prevent wars.

Both Canada and the US have borrowed many elements of our systems of justice from the British. Both countries have also deviated from the British. Yet, there remain striking similarities. All three countries highest courts attempt to define right and wrong. And in defining right and wrong, sometimes the court gets it right, sometimes wrong.

That’s why it is refreshing to add an outside voice to the ho-hum deliberations so judges don’t become too complacent inside their monastic institutions.

As supreme courts have evolved over time they have gone from being strictly composed of old, white men, to including women and different minority groups. This provides greater diversity of opinions, attitudes and perspectives and raises the caliber of justice. And even if trading judges did not improve the caliber, it likely would not lower it.

Exchanging judges between countries, however scary that sounds, would add to each court’s grasp of justice and differing world views.

It’s somewhat like food and cooking. You add a pinch of spice to the spaghetti sauce and the flavor is enhanced, enriched, improved. Of course, some people like their food bland, traditional, and identical to the flavor made by their grandparents’ grandparents. Think of judge trading as accentuating the continental palate.

The world is progressing, speeding up, changing. We can either move forward or we can try to slam on the brakes of this run-away chuckwagon we call globalization. I don’t recommend standing in front of that chuckwagon.

Canada in years past used to employ London’s Judicial Committee of the Imperial Privy Council to adjudicate our final legal appeals. And despite receiving some superb decisions(e.g. the Persons decision, 1929), we tired of being dictated to by old, white men with accents wearing wigs. We made a conscious decision to move into the 20th century in the middle of that century.

Now, Canada and the US (and dare I even suggest Mexico) have a unique opportunity to move into the 21st century.

We can open up the hallowed halls of justice—those rich wood-panelled chambers choked by stuffy air—by breathing new life into the corpus judicia. We can, we should, we must. The benefits would far outweigh the negative, I am confident.

As President Barack Obama is being thwarted in his attempt to have Merrick Garland confirmed to sit on the US Supreme Court, why not put him on the next bus to Ottawa? We’ll gladly take him.

And we’ll send you our #1 draft choice just as soon as Prime Minister Justin Trudeau picks one. Unlike the US, Canada selects, appoints and places justices all in one throwing motion. No need for a confirmation hearing.

In case you’ve forgotten, this would be called trade and it could be initiated through the President proposing a treaty to get the ball rolling.

But there could be one obstacle: lawyers. As soon as they get hold of the process, they’ll drag it out, delay it interminably, find faults, contest its merits, advise against, claim unconstitutionality, apply for an injunction, and of course, claim damages and costs.

Then comes an appeal.

I guess trading Supreme Court justices is not the only change we need. I rest my case.

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