Amici Curiae: The Chief Speaks, Political Patronage and Banning All Divorce Edition

Just Call Me Chief
Chief Justice Beverley McLachlin sat down for a fireside chat with TVO’s Steve Paikin this week. Asked how she should be addressed, McLachlin noted, in the first of several light-hearted moments, that “most people call me Chief.” (Paikin apparently missed the memo directing counsel to stop calling the justices “my lord” or “my lady.”) The Chief Justice explained she was giving the interview because of a growing recognition that the judiciary should do more to reach out to Canadians. She spoke at length on everything from the “healthy tensions” that exist between the justices and the value of dissents to her early morning dog walks and her love of hockey. There was also this exchange:

Paikin: “Now you’ve been at this a while now. What percentage of cases really turn you on and what percentage are really just boring and you’ve heard all this before?”
McLachlin: “I don’t think any of them are boring.”
Paikin: “Oh come on! Really?”
McLachlin: “Really! There are always legal issues.”

She added later, no doubt for good measure: “We take all our cases seriously.” Pressed on which cases she found particularly interesting, McLachlin relented, pointing to Reference re Secession of Quebec, [1998] 2 S.C.R. 217. “Our decision in that case still stands in terms of world jurisprudence as one of the first decisions in that area,” she said. McLachlin also told Paikin that she is quite confident that the current judicial appointments process works “pretty well” and revealed that she does not vote in parliamentary elections. “I try to stay out of the political process,” McLachlin said, adding quickly, however, that “I’m not suggesting judges shouldn’t vote.” Looking to the future, Paikin asked, “Do we need a wise Latina woman on the court?” There were more chuckles from the Chief: “That’s always a good thing, I’m sure.” (HT: Simon Chester at Slaw.)

The Harper Government, Political Patronage and Judicial Appointments
Jacob Ziegel is naming names: Pierre Blais, the new chief justice of the Federal Court. Glenn Joyal, formerly of the Manitoba Court of Appeal and now of the Court of Queen’s Bench. And Bradley Green, justice of the New Brunswick Court of Appeal. According to Ziegel, a member of the faculty at UofT Law, the appointment of those judges, among others, represents “how patronage considerations continue to permeate judicial appointments in Canada.” “What is concerning is not that Harper is pursuing a path that his predecessors have travelled since the earliest days of Confederation,” Ziegel argues on the Faculty’s blog. “It is that the legal profession and Canada’s major political parties lack the political will to rid Canada of a deeply flawed system that violates the most fundamental principles of the rule of law.”

In a new profile in The Lawyers’ Weekly, Blais, however, doesn’t shy away from his political ground or deny that it played a role in his ascent up the judicial ladder. “I am very proud of my resume frankly,” Blais, who held the Agriculture, Solicitor General, Consumer and Corporate Affairs and Justice portfolios during nearly seven years in the Progressive Conservative cabinets, told the publication. “I was appointed [to the Federal Court] by Mr. Chretien [a Liberal], and I have been elevated [to the Federal Court of Appeal] by Mr. Harper [a Conservative], so if it’s a patronage issue — what should I be?” It does not appear that Joyal, Green or any of the other judges named in Ziegel’s piece have publicly commented on Ziegel’s op-ed.

Rosenberg Slams System, Calls for Reform
It’s not often that Canadian newspapers cover judicial speeches, but Justice Marc Rosenberg of the Ontario Court of Appeal made headlines this week when he told a conference of criminal defence attorneys that “something has gone terribly wrong” with Canada’s justice system. “On any day in Canada, we have more people in pre-trial custody than actually serving sentences. … The constitutional guarantees of the presumption of innocence and reasonable bail seem illusory,” The Globe and Mail quoted Rosenberg as saying. Noting that about 60 percent of inmates in provincial jails are legally innocent and awaiting trial, the justice argued that “[t]his is something that needs attention now.” Rosenberg made his remarks in Toronto after accepting the an award from the Criminal Defence Lawyers Association, The Toronto Star reported.

White House Invokes Privilege to Resist Testimony on Party Crashers
The White House invoked the constitutional separation of powers in an attempt to keep Desirée Rogers, President Obama’s social secretary, from testifying before a Congressional committee about how a couple of aspiring reality television show celebrities crashed a state dinner for the prime minister of India last week, The New York Times reported. Perhaps the White House Counsel’s office is be trying to out-do their predecessors in the Bush administration when it comes to making creative arguments about presidential prerogatives? “My own view is that the White House is making a big mistake for no defensible reason,” writes Sandy Levinson over at Balkanization. “[I]t is literally inconceivable that anyone drafting the Constitution would have imagined the position of White House Social Secretary, paid for with taxpayer funds, and that the majesty of separation of powers rhetoric would apply to a situation like this.”

Worthwhile Californian Initiative: Ban Divorce
As evidenced in their 2008 endorsement of Proposition 8, Californians’ respect for traditional marriage runs deep: why not make them stay married, then? Judy Lin writes in the San Francisco Chronicle that John Marcotte, a Sacramento web designer, has presented a satirical response to California’s adoption of the constitutional amendment contained in Proposition 8: a ballot initiative to ban divorce. Says Marcotte, “since California has decided to protect traditional marriage, I think it would be hypocritical of us not to sacrifice some of our own rights to protect traditional marriage even more.” Proposition 8’s opponents, such as Restore Equality 2010, praise the initiative as being “quite hilarious”, whereas such proponents as the California Family Council, in seeming flight from principle, frown that the idea is “impractical”. As well as being an entertaining addition to persistent American marital-cognitive disarray, Marcotte’s ban on divorce does seem a fitting companion to Texas’ prohibition (constructive, at least) on marriage itself.

Amici in Curiae Ludi?
Erik Estavillo, the plaintiff in actions against Sony, Nintendo, Microsoft and, now, Activision Blizzard, may be the first person in history to sue someone because he “has no friends”. When Sony banned Estavillo from participating in multiplayer games on its PlayStation Network in July 2009, the plaintiff, a depressed, obsessive-compulsive agoraphobic with Crohn’s Disease and panic disorder, came back with a legal purple nurple for the company that he claims blocked him out of his entire social network. Sony is charged with violating Estavillo’s First Amendment right to free speech, while Activision Blizzard faces allegations of “sneaky and deceitful practices.” This week, Sony responded to Estavillo’s summons, and the court battle begins early 2010. Estavillo has chosen his allies from the entertainment world: thus far the list includes Winona Ryder, Depeche Mode-member Martin Gore, Bill Gates, and rappers, Lady Sovereign and Krayzie Bone. Estavillo’s team more resembles a dreamy, if deluded, social network than a list of credible witnesses, actually. So maybe he’s got friends after all! And (well, now) no cause of action.

The Instant Replay: Court of Appeal and Finder of Fact
At Prawfsblog, Joseph Blocher asks the burning question, “why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review … why not review them de novo?” Blocher distinguishes between the unjustly stringent approach to the instant replay and the standards of review that apply to trial and appellate judges. Instant replays, he says, are “just appeals of a different kind,” except that, in the case of the instant replay, “the relative competence of the factfinder” is indisputable and, therefore, deference is not due to the trial judge/referee. This strained, er, taut analogy between instant replay and appellate review obviously appeals to the American legal mind: Chad M. Oldfather and Matthew M. Fernholz’s paper on the subject is available here.

Jesus Christ dismissed from jury pool
‘Nuff said, from the WSJ Law Blog.