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opinion Potemkin village public hearing purely for show. Even these cursory nods to broader participation cannot be count- ed on; in choosing Cromwell, Harper terminated mid-stream the work of the parliamentary committee, calling it dysfunctional. It's not good enough. Supreme Court judges are among the handful of people who govern Canada. They wield great power, particularly since the 1982 Charter of Rights and Freedoms dramatically enhanced their ability to strike down laws as unconstitutional. In the name of elementary democracy, Canadians are entitled to a better ap- pointment process. The key reform is clear. A prime minister's Supreme Court nomination should require confirmation by Par- liament. The candidate should appear before a parliamentary committee in a serious hearing broadcast live on tele- vision. The committee should make a formal recommendation on the nomi- nation — up or down. Parliament as a whole should consider that recommen- dation, and then confirm the nomina- tion — or not. Given our system of gov- ernment, in almost all cases the prime minister would still get the Supreme Court justice he wanted (particularly in a majority government). Parliamen- tary confirmation, following a serious committee hearing, would reaffirm the democratic process and ensure every- one paid attention. It would help drag the Supreme Court from the shadows into the public eye, where it belongs. There are two standard criticisms of this idea. One is that substantive pub- lic hearings in a political arena would inevitably become an undignified "cir- cus," subjecting the nominee, among other things, to intrusive and irrelevant probing of his or her private life; the prospect, it is said, would discourage many worthy candidates from letting their names stand. This criticism has little, if any, merit. Good sense and restraint in public life are still with us (to some extent), and will help reign in any tendency to excess. Democracy can be messy, and sometimes mettle is re- quired in those who seek appointment to high office. The second criticism is more sub- stantial; some say public hearings fol- lowed by parliamentary confirmation would "politicize" the process. This seems to mean that judges might get chosen because of their political views, or that as part of the appointment pro- cess candidates might have to commit themselves to particular outcomes on sensitive issues that might come before the court. The danger of this is real, but often exaggerated. Experience in the United States shows sophisticated participants in this complex and subtle process can avoid the trap. A much- discussed recent study concluded that U.S. Supreme Court nominees present themselves one way at confirmation hearings but often act differently on the bench. (Some argue this phenom- enon diminishes the value of public hearings in the first place.) Another valuable reform would be to limit the appointments to a non- renewable, 15-year term. The objection to such a limitation is it might require excellent judges to leave the bench just when they had accumulated substantial experience. But it would ensure regu- lar refreshment of the court's talent and intellectual capital, and — most importantly — enhance democracy by preventing entrenchment of great power in the hands a non-elected judge. Given the rule of mandatory retire- ment at 75 already in place, only judges appointed younger than 60 would be affected. And, in recent years, several Supreme Court judges under the age of 75 have resigned after having served less that 15 years — for example, justices Michel Bastarache, Frank Iacobucci, William Stevenson, Gérard La Forest, and Yves Pratte. There probably won't be another Su- preme Court vacancy until 2013, when Justice Morris Fish will reach the man- datory retirement age. We have four or five years to fix the antiquated and un- democratic appointment process we now labour under. Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com www. C ANADIAN Law ye rmag.com JANU AR Y 2009 29 ntitled-7 1 12/11/08 3:42:28 PM Presented by Upcoming Conferences HEALTH POLICY SUMMIT January 12 - 13 | Calgary CANADIAN OIL SANDS January 13 - 14 | Calgary SECURITIES AND BUSINESS LAW FORUM January 19 - 20 | Toronto HEALTH INFORMATION PRIVACY AND SECURITY January 26 - 27 | Toronto MAJOR BUSINESS AGREEMENTS January 27 – 28 | Calgary January 27 – 28 | Montreal February 2 – 3 | Toronto March 2 – 3 | Vancouver LABOUR RELATIONS January 29 - 30 | Vancouver ENERGY CONTRACT MANAGEMENT January 29 - 30 | Boston EMERGENCY CARE February 23 - 24 | Vancouver CONTAMINATED SITES February 23 - 24 | Calgary IN-HOUSE COUNSEL February 26 - 27 | Toronto Media Partner ENROLL TODAY! 1 888 777-1707 www.insightinfo.com