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w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 6 17 withdrew his name after admitting that he had smoked marijuana (also weird). And let's not forget George W. Bush's nomination of Harriet E. Miers, who departed the scene following almost unanimous bipartisan agreement that she was completely unqualified for the job. What reasonable person would want any of that nonsense in Canada? The way we do things here is so much better! Quiet, discreet, polite, so Canadian. Let us avoid the American way, for God's sake. Not so fast. First of all, the hor- rible American dysfunction in selecting SCOTUS judges is a product of that country's particular constitution. When I studied introductory political science at the University of Manitoba, eons ago, the professor held up the U.S. Constitu- tion as a brilliant document that orga- nized government in the best possible way. Separation of powers guaranteed freedom and democracy. The presiden- tial/congressional system, we were told, was much preferable to the parliamen- tary system that allowed a quasi-dictator (a.k.a. the prime minister) to run amok. Note that running amok by the prime minister includes controlling the legis- lative branch, something POTUS does not do, particularly if the majority in the House of Representatives and the Senate are not of his party. That's a big difference between the two countries. It means there is virtually no chance of unseemly American-style goings-on if Canada adopted the approach to select- ing judges that I and others have pro- posed. But what about public hearings? I'm talking about the real thing, not token events like the Marshall Rothstein 2006 love-in. Some say that good candidates won't subject themselves to substantive hearings, thinking them demeaning, offensive, and antithetical to the polite and discreet traditions of the Canadian legal profession. I say, bunkum. First of all, very few lawyers will turn down the chance to be a judge of the Supreme Court of Canada when the prime minister comes a-calling, even if it means a little upfront discomfort. I know that occasionally someone has resisted the siren call (stand up, Yves Fortier), but it's rare. Secondly, a few days of answering pointed questions seems like a small price to pay for high office. What's wrong with a little demo- cratic rough-and-tumble? Remember, Mr. or Ms. Candidate, once it's over, you're a free man or woman. Replacing Cromwell is a good oppor- tunity to change how we pick Supreme Court judges. And let's not forget that Chief Justice Beverley McLachlin must retire by Sept. 7, 2018, her 75th birthday. The more discussion and transparency there is in the appointment process, from start to finish, the better. The more Canadians and their elected representa- tives are engaged in the process, the more legitimate it will be. Now is the time for change, Justin. It's 2016. Philip Slayton's book on the Supreme Court of Canada, Mighty Judgment, was published in 2011. Canadian Franchise Guide, Second Edition Osler, Hoskin & Harcourt LLP Managing Editors: Andraya Frith, Dominic Mochrie, and Gillian Scott Order # 986422-65203 $394 4-volume looseleaf supplemented book 2-3 supplements per year 978-0-7798-6422-5 Supplements invoiced separately The trusted franchise law resource for every practitioner Available risk-free for 30 days Order online: www.carswell.com/franchise Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 00235YX-A54918 CONNECT WITH IN-HOUSE COUNSEL COLLEAGUES AT LEXPERT.CA/CCCA Check out in-house counsel's best networking tool! The 2015/16 Lexpert CCCA/ACCJE Directory & Yearbook online edition is a user-friendly, outstanding key resource for all in-house counsel. Access more than 4,000 listees, more than 1,900 organizations, find fresh editorial content, and information on deals and links to important resources. ANYWHERE. ANYTIME. ANY DEVICE. Untitled-1 1 2016-02-11 10:17 AM

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