Canadian Lawyer

OP I N ION The problem is that the country moves on ideologically and demographically leaving the Supreme Court behind. The face of Canada changes, but the court doesn't keep pace. The face of Canada changes, but the court doesn't keep pace. Isn't it about time, for example, that someone from a visible minor- ity and someone from the gay and lesbian community sat as a Supreme Court justice? It remains a scandal that an aboriginal has yet to be appointed. The usual counter-argument to such a suggestion is "all that matters is legal ability, cious and simplistic (a subject for another column). The "keeping pace" problem is made worse because a Supreme Court appoint- ment is solely within the gift of the prime minister, with no real democratic oversight. There is none of that pushing and shoving by elected representatives that makes sure certain legitimate inter- ests are promoted and would ensure that the court keeps up with a country in transition. The United States has been struggling with this problem for a long time (it was on Thomas Jefferson's mind when the Union was created). Pulitzer Prize-winning historian James MacGregor Burns has written of the U.S. Supreme Court: "Justices throughout the court' cal patrons have retired and long after their parties have yielded to their opponents or even disappeared. They have often perpetu- ated ideologies and attitudes that are outdated or that Americans have repudiated at the ballot box." The problem is more acute in the U.S. because Supreme Court judges are appointed for life. But in one important respect, the situation south of the border is bet- ter than it is in our own country. The president only nominates a Supreme Court justice and his choice has to be approved by the Senate after a long and public political process. Democracy and transparency can have powerful and salutary effects on the judicial appointments process. In the U.S., the debate over term limits has recently centred on s history have clung to their seats long after their politi- a 2006 academic paper by two law professors, Steven Calabresi and James Lindgren. They write: "A regime that allows high gov- ernment officials to exercise great power, totally unchecked, for periods of 30 to 40 years, is essentially a relic of pre‐democratic times." They argue for 18-year staggered terms for U.S. Supreme Court justices; once the scheme was fully phased in, there would be two appointments in each four-year presidential term. One benefit would be "the democratic instillation of public values on the Court through the selection of new judges. . . ." Another would be removing the "ability of one political movement to lock up the court for thirty years, as Republicans did at the start of the Twentieth Century and as Democrats did after the New Deal. The term limits idea was espoused by a 2012 presidential can- didate. Unfortunately for the idea' " Rick Perry, who in a TV debate couldn't remember how many Supreme Court judges there were. s credibility, the candidate was Read Steven Calabresi and James Lindgren's paper on judicial term limits at epstein.usc.edu/research/supctLawCalabresi.pdf. " but that retort is spe- judges of a country's highest court. Calabresi and Lindgren point out that members of the constitutional courts of France, Italy, Spain, Portugal, Germany, and Russia serve fixed, limited terms of between six and 12 years. The same is true of some non-European countries — South Africa, for example. As usual, the devil is in the details. How would the scheme By the way, there's nothing radical about term limits for the be phased in? The answer seems to be that it should only apply to new appointments; sitting judges would not be affected. What should be done if a justice dies or resigns prior to the expiration of his fixed term? Most agree that an interim justice would be appointed to fill the remainder of the deceased or retired judge' term. What happens to a judge when his term is over? He retires on a fat pension, that' s always do — be of counsel to a prestigious law firm, chair a com- mission of inquiry, etc. It' s what, and can do what retired judges s not a bad life. Philip Slayton's latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton. EXPERT GUIDANCE TO HELP YOU ANALYZE FEDERAL LABOUR AND EMPLOYMENT LAW THE 2012 ANNOTATED CANADA LABOUR CODE, 20TH ANNIVERSARY EDITION RONALD M. SNYDER Stay up to date with legal developments applicable to Federal union and non-union employees with The 2012 Annotated Canada Labour Code. You'll gain a better understanding of the Canada Labour Code and jurisprudence with an extensive collection of case law annotations and the expert analysis of a leading lawyer to guide you. 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