Amici Curiae: Bilingual Supremes, Khodorkovsky Spectacle, and Stevens Retirement Edition

House Passes Bill Requiring Bilingual Appointees to SCC
A NDP private member’s bill requiring that any future appointee to the Supreme Court “understands French and English without the assistance of an interpreter” passed the House last week, drawing unusually public criticism from a former justice. Bill C-232, introduced by NDP official languages critic Yvon Godin, amends s. 5 of the Supreme Court Act to add the one-line qualifier. (Incidentally, it’s not the first time such a bill has been introduced in recent years.) Godin, in an interview with the CBC’s The Current, stressed that his goal is to ensure fairness at the high court. “How would you feel if you went to court [and] the person in front of you, who will judge you, doesn’t know one word of English at all?” Godin asked. “We should not be treated by having just translation. We should be treated equally.” He noted that with “33 million people in this country, you can’t tell me we can’t find nine judges who can’t speak both languages.”

But it seems at least one justice was prepared to suggest just that — sort of. Justice John C. Major, who retired from the Court in 2005 and spoke to the CBC as well, said that Godin’s law “misses the point” because the focus should be to “have the most competent people, regardless of language skills,  sit on the Supreme Court.” Major warned that mandating that all future justices be bilingual would mean that “you would have to settle for less than fully competent people,” particularly from the Western provinces, where fewer superior and provincial court judges — the pool from which the Supremes are drawn — are fluently bilingual.

Major also denied Godin’s claim that eight of the current nine justices are fluent. “There are probably 2, maybe 3, who are completely fluent. The others have a knowledge of French, but they have to rely on translators to complete the judgements,” he said. In an unusually open criticism, Major also said that he was “astounded, regardless of Mr. Godin’s good intentions, that the bill got through a second reading when you have a former justice minister on the liberal side [Irwin Cotler], you have a former premier of Ontario [Bob Rae], both lawyers, not understand that the essence of good jurisprudence is competent judges.”

Phil Fontaine, a former national chief of the Assembly of First Nations, also chimed in on the show, calling the proposed law “elitist” because “[i]t doesn’t recognize the incredible diversity of our country.” Godin, in a rebuttal, took issue with Major’s principal criticism, saying “I just cannot believe that we cannot find qualified people. ” Godin predicted that the bill has a fair chance of passing the Senate and that, if that happened, the country — and lawyers, in particular — would adjust. “It’s not going to be the end of the world,” he said. “We will learn how to work with it.”

Stevens retires
After months of anticipation, Justice John Paul Stevens, the leader of the U.S. Supreme Court’s liberal wing and the Court’s longest-serving member, announced that he will step down from the bench at the end of the Court’s term this year, the AP reports. The news comes just 11 days before the justice’s 90th birthday. Chief Justice John Roberts in a written statement praised Stevens. “He has enriched the lives of everyone at the Court through his intellect, independence, and warm grace,” Roberts said. Stevens’s departure gives President Obama his second opportunity, after having appointed Sonya Sotomayor last year, to name a justice to the bench. The leading candidates to replace Stevens are Solicitor General Elena Kagan, 49, and federal appellate Judges Merrick Garland, 57, and Diane Wood, 59. Slate’s Dahlia Lithwick discussed the speculation over Stevens’s successor earlier this week.

Spanish judge indicted for Franco-era investigations
Here is a joyless irony, if ever there was one: The Spanish investigating magistrate best known for his bold applications of the principle of universal jurisdiction has himself been indicted for investigating crimes committed in Spain. According to The New York Times, the charges against Baltasar Garzon stem from his short-lived 2008 investigation into “tens of thousands of deaths and disappearances during Spain’s Civil War and the ensuing dictatorship of Francisco Franco,” and, if convicted, he could be barred from the bench for up to 20 years. A rightist union of civil servants, Manos Limpias, or “Clean Hands,” led the legal campaign against Garzon, accusing him of willful judicial overreach in flouting a 1977 amnesty covering crimes committed during the Civil War. Best known for his 1998 indictment of the late Chilean ex-dictator Augusto Pinochet, Garzon as well initiated an investigation into the “Bush Six” and allegations of their involvement in torture committed at the Guantanamo Bay detention camp. In its editorial arguing for that the charges against Garzon be dropped, The New York Times argues that the judge’s conviction “would please his political enemies, but … would be a travesty of justice,” and that “Spain needs needs an honest accounting of its troubled past, not prosecution of those who have the courage to demand it.”

Khodorkovsky’s “rhetorical” defences
A year into his trial, ex-YUKOS CEO Mikhail Khodorkovsky has finally begun his defence, reports The New Republic’s Julia Ioffe. By Ioffe’s account, Khodorkovsky, charged with tax evasion, fraud, money laundering, and “stealing 350 million tons of oil,” appears to be mounting a defence designed to humiliate the state prosecution by staging a show trial of his own. Khodorkovsky countered the charge of oil-theft, for instance, in a “rhetorical exercise” wherein his lawyer produced a bottle of crude oil and gave him a pink piece of paper — thereby “trading” the oil with Khodorovsky such that “Khodorkovsky now owned the oil, which remained physically with [his laywer].” The presiding judge angrily rejected his motion to experimentally reproduce the “theft” on a scale massive enough scale as to approximate the theft he was charged with. Thereafter, Khodorkovsky “consternated the prosecution” — while entertaining and exasperating the judge – with “abstruse technical detail” and “legal jargon and obscure citations.” Ioffe opines that Khodorkovsky’s tactical “point … was to explain in emotionally empty, hyper-rational terms … that the prosecution’s case was ‘politically motivated’ and ‘bogus’, and that its arguments amounted to ‘legal schizophrenia’.” His deeper strategy, says Ioffe, is likely to expedite proceedings before the European Court of Human Rights by “shining a spotlight on the incompetent, corrupt and politically motivated Russian judicial system.”

Sex-ed both mandatory and criminal in Wisconsin?
A Wisconsin district attorney, Scott Southworth, has written a remarkable letter to his county’s school board members and administrators, warning them that a recent state law that mandates instruction in contraception is “programming that promotes the sexualization —  and sexual assault — of our children.” In light of the various criminal laws prohibiting sexual intercourse with minors, says Southworth, teaching minors how to use contraceptives “is akin to teaching children about alcohol use, then instructing them on how to make mixed alcoholic drinks.” Southworth goes on to enumerates the law’s other risks, including the possibility that the law “undermines parental authority” by encouraging children to “shop around” for familial sex-sanction, but the most controversial part of his letter lies in its unmistakable, however veiled, threat to educators. That is, not only might school districts be civilly liable for any sexual assault linked to an act of sex education, but any teacher might be charged with intentionally contributing to their students’ criminal acts —  and that “he or she only need be aware that his or her instruction is ‘practically certain’ to cause the child to engage in the illegal act.” Southworth does add the ill-faith qualification that “our teachers should never be put in this position,” stating in interviews that “[he is] not looking to charge any teachers” and has “enough work to do.”

Eugene Volokh isn’t having any of it and he raises legal and practical counter-arguments. The criminal statute, he says, requires purpose to cause the prohibited result, “and I doubt that teachers are teaching children about contraceptives with the specific purpose of getting them to have sex.” Furthermore, according to Volokh, Southworth’s hypothesizes that “(1) the child is already having sex, but (2) the child was likely to stop having sex because of lack of contraceptive education, yet (3) the teacher’s teaching the child about contraceptives is now ‘practically certain to cause’ the child to continue having sex. Really? How likely is that?”

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