Federal Judicial Appointments: Nothing Has Changed

This article first appeared in The Lawyers' Weekly, November 20, 2009.

Some of us entertained a slender hope in 2006 that the Harper administration, after its election into office, could be persuaded not to use federal judicial appointments to feed the patronage mill. After all, as Opposition leader, Harper had fiercely denounced the Liberal party sponsorship scandal in Quebec and had promised to introduce an accountability act if the Conservatives won the next election. In a similar vein, Vic Toews, the future first justice minister in the Harper cabinet, endorsed a 2005 report of the House of Commons Justice Committee criticizing patronage appointments and calling for exclusively merit-based appointments. Toews was deputy chair of the committee.

Hirschl Publishes New Book: "Constitutional Theocracy"

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.

Optimal Panel Size at the Supreme Court of Canada

I have posted a new draft of a paper addressing the optimal size of a panel to hear appeals. It is entitled, "On Optimal Panel Size, with Evidence from the Supreme Court of Canada." It is coauthored work with my colleagues Andrew Green and Ed Iacobucci. Here is the abstract:

The US Supreme Court typically sits en banc. Historically, the House of Lords in the UK sat in panels of five. Its new successor, the UK Supreme Court, now sits in panels of five, seven or nine justices. A similar practice has long been in place at the Supreme Court of Canada, which routinely sits in panels of .five, seven, or nine justices. We develop a formal model of the optimal choice of panel size. The model suggests that in the presence of scarce judicial resources, panel sizes can be deliberately adjusted to improve allocational e.fficiency. Using data from appeals heard by the Supreme Court of Canada from 1984-2005, we uncover evidence that the Court may be using varied panel sizes in a manner consistent with the predictions of our model.

Comments and suggestions are most welcome.

 

Appointing New Judges to the Supreme Court of Canada

Justices Binnie and Charron announced on Friday, May 13, 2011 that they would be retiring from the Supreme Court of Canada. In order to better understand the likely effects of this on the implicit policy preferences of the members of the Court, I analyzed all the judgments of the Supreme Court of Canada under Chief Justice McLachlin from 2000 SCC 1 to 2011 SCC 20 using the method of Martin and Quinn (2002) that Andrew Green and I have used extensively in earlier work (see here, here, and here).

The updated estimates of the position of the justices in a linear policy space is illustrated below. With the exception of Justices Fish (more liberal) and Deschamps, Rothstein, and Cromwell (more conservative), the justices are tightly bunched in the middle. The current estimates suggest that Justice Abella is the median justice given the current composition of the Court, with an ideal point of -0.05.

The Law is Too Important to Leave to Politicians

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on May 26, 2011.

Earlier this month, Justices Ian Binnie and Louise Charron, both from Ontario, announced their intention to retire from the Supreme Court of Canada at the end of the current session of the court. How their successors will be chosen is an as-yet unanswered question. Will Prime Minister Stephen Harper be able to resist the temptation to appoint replacements that will reflect his philosophy as to the role of the judiciary, or will he opt for a more credible and democratic system that has the approval of the country at large?

That Harper should have this unfettered discretion is itself very troubling and again draws attention to a serious lacuna in Canada's constitutional structure. In fact, among countries with a written constitution, Canada is probably alone in failing to provide how the members of its highest court are to be selected. The Supreme Court of Canada Act (which is not entrenched in the Canadian constitution) only mandates a court of nine judges, three of whom must be appointed from Ontario and three from Quebec. Nothing is said about the method of their selection.

The Right Way to Pick Supreme Court Judges

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on August 19, 2011.

Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of August more than three months ago. Yet it was only on Aug. 5 that the Minister of Justice announced the appointment procedure the federal government intended to follow in appointing their successors on the Court.

A starved media fell on the announcement enthusiastically, but failed to ask some relevant questions. Will the proposed selection procedure result in the choice of the best-qualified candidates and, if the answer is no, what would be a better procedure? What role does the Supreme Court of Canada play in Canada’s constitution and what qualities should we look for in appointments to the Supreme Court?

There’s much reason to doubt that the federal government has chosen the procedure best calculated to lead to the appointment of the best qualified candidates. Stripped of all the rhetoric, it seems safe to anticipate that the successful candidates will be those whose assumed legal and constitutional philosophies appeals most to Prime Minister Harper and who meet his criteria of judges “who apply the law and don’t make it.”

Unacceptable Delays in Supreme Court Appointments

This commentary was first published in The Lawyers Weekly on Sept. 23, 2011.

It is now four months since Justices Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of July. Nevertheless, and disturbingly so, their successors have still not been appointed and the court remains two short of its full complement of nine judges.

When addressing the annual meeting of the Canadian Bar Association in Halifax last month Chief Justice Beverley McLachlin urged the federal government to ensure that the new justices would be appointed in sufficient time for them to take their places on the court when the court begins its 2011-12 term hearing of appeals in early October.

Her wish is unlikely to be granted. Rob Nicolson, the minister of justice, only announced on August 5 the procedure the federal government intended to follow in filling the two vacancies. The procedure involves the establishment of a five member selection panel of the House of Commons to review a list of names submitted to them by the minister and the committee's  submission of a short list of six unranked candidates to the prime minister and the minister of justice.

Supreme Court Appointments and Wrong Priorities

This commentary by Prof. emeritus Jacob Ziegel was first published in The Hill Times on Dec. 12, 2011.

On Nov. 14, former chief justice Roy McMurtry of Ontario and several current members of the Ontario Court of Appeal attended the swearing-in at the Supreme Court of Canada of the two new appointees to the court, Justices Michael Moldaver and Andromache Karakatsanis, both from Ontario. While they were in Ottawa, a reporter for The Lawyers Weekly asked McMurtry and the Appeal Court judges for their reactions to the questioning of these candidates by the House of Commons Ad Hoc Committee before their appointments were confirmed by the Prime Minister.

McMurtry said he thought the questioning of Justice Moldaver was too aggressive and he expressed concern that Canada was gravitating to the type of hostile questioning of candidates for appointment to the U.S. Supreme Court by members of the U.S. Senate Judiciary Committee. McMurtry was apparently referring to NDP MP Joe Comartin’s criticism of Justice Moldaver’s lack of bilingualism and his skepticism that the justice would ever become adequately bilingual despite his assurances to the committee that he would give this objective a top priority.

JD student Andrew Stobo Sniderman in Maclean's - "Harper v. The Judges"

Tuesday, August 21, 2012

JD student Andrew Stobo Sniderman has written an article in Maclean's magazine looking at the way many important issues facing the country are being tackled not by Parliament, but by the courts ("Harper v. The Judges," August 21, 2012).

Read the full article on the Maclean's website.

JD student Louis Century writes in Law Times - "Forcing judges to judge old law erodes democracy"

Monday, July 30, 2012

JD student Louis Century, a summer law student with the David Asper Centre for Constitutional Rights, has written a commentary in the "Speaker's Corner" section of the Law Times, "Forcing judges to judge old law erodes democracy," (July 30, 2012).

Read the full commentary on the Law Times website.

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