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OP I N ION BY PHILIP SLAYTON TOP COURT TALES Parliament should confirm new Such a system could be potentially awkward and occasionally embarrassing. Maybe, but so what? I t's been a busy few weeks for Supreme Court watchers. In the run-up to the May 2 federal election, a handful of com- mentators (including me) pointed out that over the next four years the prime minister would be able to remake the court in his own image. Four of the judges were edging up to the mandatory retirement age of 75 (justices Marshall Rothstein, Morris Fish, Ian Binnie, and Louis LeBel), and some others might quit before they had to. There was a good chance that whoever was prime minister after May 2 would appoint a majority of the court before he had to face re-election. What kind of people would he choose and what would be the process? This should have been an election issue, but it wasn't. But then, a few days after Stephen Harper was returned to power with a majority, there was a Supreme Court bombshell. Justices Binnie and Louise Charron announced they were retiring at the end of August. Suddenly there were two vacancies to fill. The theoretical had become real. The newspapers were full of editorials and news stories warning that the Supreme Court would soon be the "Harper Court." Canadians, we were told, could anticipate reduced use of the Charter by an increasingly conservative court that would defer to government. Binnie's retirement was no big surprise. He seemed to enjoy his job, but had been at it for more than 13 years and is over 70; time for him to get back to the legal fleshpots of Toronto while they are still welcoming. Charron's departure is myste- rious. She's only 60, and has been on the Supreme Court for just seven years. Is there a story behind her premature departure, other than the official one (spend more time with the family, etc.)? Likely, we'll never know. Once the initial wave of gossip and speculation was over, attention focused on how the new Supreme Court judges would be chosen. It's a simple system: the prime minister picks pretty much whom- ever he wants. The formal constraints on an appointment are almost non-existent. A judge must have been a lawyer for at least 10 years. The Supreme Court Act requires there be three justices from Quebec, and there is a constitutional convention that 16 JULY 2011 www. CANADIAN Lawyermag.com apportions the remaining six seats across the country. (Binnie and Charron are both from Ontario, so their replacements will come from that province.) That's it. There are, of course, informal con- straints and crosswinds, mostly political. Charron will likely be replaced by a woman to maintain the Supreme Court's female complement. The new Ontario appointees will have to be passably bilingual, able to speak not just restaurant French but the real thing. There is a persistent feeling that it's time to put an aboriginal on the court. Many consider that Binnie, appointed directly from legal practice and a great success as a judge, should be replaced by another seasoned practitioner. Eclipsing all other considerations is the place of a candi- date on the political/ideological spectrum. At the time of writing (May), it's too soon to know how all of this will balance out, but step right up if you're a female, bilingual, conservative, practising lawyer who is also an aboriginal. Harper was quick to announce a three- stage process for filling the two vacan- cies. A "pool of qualified candidates" will be identified by the minister of Justice S C C judg es Dushan miLic