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If Brett Kavanaugh Were A Nominee In Canada, He Would Probably Have Been Arrested

Things would have been very, very different.
Senior Editor
If Brett Kavanaugh Were A Nominee In Canada, He Would Probably Have Been Arrested

The United States is in the midst of a political crises.

The nomination by President Donald Trump of Brett Kavanaugh to fill an impending vacancy on the U.S. Supreme Court has split the nation after several women came forward accusing the judge of sexual assault.

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TL;DR If Brett Kavanaugh were a nominee for the Supreme Court of Canada, this is what would have happened.

The only thing more horrifying, perhaps, than Trump's support of an alleged sexual predator is the process by which this scandal has unfolded.

The sickening Republican reaction to Christine Ford's testimony, social media battles, and divisive rhetoric have highlighted severe flaws in the American political system.

Legislation and the current political climate in Canada, by contrast, ensure that a similar situation would almost certainly not reach the height it has in the United States.

Thiswhat Canada would have done with Brett Kavanaugh had the prime minister suggested his name to the Governor General for nomination to the Supreme Court.

In sum, things would have been very, very different.

1. The stakes would have been lower

In the United States, Supreme Court decisions and appointments are highly politicized. Court decisions usually, but not always, fall along party lines. Currently, the court is comprised of four liberal members, four conservative members, and one "swing" member. It is that swing member, Justice Kennedy, whose retirement will vacate the seat that Kavanaugh seeks to fill.

American Supreme Court judges are appointed for lifetime terms, meaning Kavanaugh's appointment could solidify the Republican grip on the court for decades. That likely means that the Court will agree with conservative perspectives on abortion, workers' rights, affirmative action, and same-sex marriage.

If Kavanaugh were a nominee for the Supreme Court of Canada, such debates would be quiet, if they existed at all. Canada has already largely settled the issues listed above. Decisions made by the Supreme Court of Canada are also seen less as political assessments of presidential decisions.

The loyalties of Canadian Supreme Court Judges are also less determined by party than they are by region. According to the Supreme Court Act, three of its nine seats must go to judges or lawyers from Quebec. By convention, the remaining six seats are divided as follows: three from Ontario, two from the Prairies, one from British Columbia, and one from the Maritimes.

Justices in Canada must also retire at age 75 and may be removed for indecent behaviour by Parliament. There is a lot more oversight.

2. Social media would have been quieter

Because the stakes are lower, social media would have been quieter were Kavanaugh nominated for a seat on the Supreme Court of Canada. Of course, millions of Canadians would have come to the defense of his accusers. Those numbers would be bolstered by the rightful outrage that has fueled the current feminist moment as well as general hatred of Donald Trump, who has invested a great deal of political capital in Kavanaugh.

But because, unlike in the United States, judicial appointments are not ratified by Parliament, the vocal opposition to Kavanaugh would not have been as consequential. In the U.S., Senators are looking to social media to guage how their vote on Kavanaugh's appointment will affect their reelection.

Political dialogue is also just less divisive in Canada. Right now across America, total strangers are engaging in bitter and widely shared debates on social media.

3. There would automatically have been an investigation

In the U.S., the FBI only launched an investigation into the allegations against Kavanaugh at the order of Trump, who, in turn, only ordered an investigation at the behest of the Senate.

In Canada, the Royal Canadian Mounted Police probably would have begun an investigation on their own.

4. Members of Parliament would not have waged political war

MPs in Canada, outside the Cabinet, have almost no say in Supreme Court appointments. A committee recommends a nominee to the prime minister, who then forwards the name of the nominee to the Governor General, who, along with the Queen, makes the appointment official.

In the U.S., a majority of the Senate must approve the president's Supreme Court nominees. Senators have made the Kavanaugh nomination an all-out political war because they think they can capitalize on the situation.

The impending November 2018 congressional elections only heightens the consequences of this fight. Savvy Senators have inflated their political rhetoric recently to grab screen time and, effectively, appeal for campaign donations.

Democrats are using the allegations against Kavanaugh to align themselves with the #MeToo movement ahead of the election. The urgency of a potentially court-changing vacant seat has also bolstered support for the party.

Republicans, meanwhile, are using the situation as an opportunity to appeal to their base and, disgustingly, cast the Democrats, Kavanaugh's accusers, and entire #MeToo movement and resistance as hysterical and corrupt.

The circumstances would not have escalated to such a level in Canada. MPs would probably have something to say about Kavanaugh, but those opinions would be much less divided. It's hard to imagine any member of the House (except for the most extreme Conservatives) supporting Kavanaugh.

5. There would have been no public spectacle

Because MPs don't need to ratify Court appointments, there would be no need in Canada for the televised hearings that dominated American screens.

Those hearings were almost entirely a public spectacle. Senators from both parties used the televised performance as a political platform. That was unfair to Ford, who bravely recounted her trauma in front of the whole country. Watching Ford fend off the belligerent, all-white male Republican contingent of the Judiciary Committee was especially heart-wrenching.

Canada would have the decency to minimize the spectacle out of respect for Kavanaugh's accusers.

6. Trudeau probably would have withdrawn Kavanaugh's nomination

Trudeau is a self-described feminist known for his grand gestures of progressivism. Though, there is debate about how progressive the PM actually is.

Nevertheless, he would have likely just withdrawn Kavanaugh's nomination at the first emergence of allegations of sexual assault.

Donald Trump, who himself is probably guilty of sexual assault, refuses to do so. To withdraw Kavanaugh's nomination would be to admit that he, too, should resign his position. Trump is too much a self-interested misogynist to ever reconsider Kavanaugh.

7. Kavanaugh would disappear and maybe go to prison

After the withdrawal of his nomination, Kavanaugh would also likely be forced out of his current judicial position pending the conclusion of the RCMP investigation. From there, he would either disappear or be charged and convicted. If he were to go to prison, he would likely undergo a restorative justice program and rehabilitation.

Canada would have done the right thing. Kavanaugh would have never ascended to the Supreme Court.

    Thomas MacDonald
    Senior Editor
    Thomas MacDonald is a Senior Editor for MTL Blog focused on Montreal public transit and is based in Montreal, Quebec.
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