Prime Minister Stephen Harper is positioned to do something U.S. President
Barack Obama can only dream of -- remake his nation's Supreme Court more to
his liking.

Seven of the Supreme Court of Canada's nine members are now eligible (but
not required) to retire, with an eighth eligible to go in 2011.

Harper has already made two well-received appointments to the court, but if
he keeps his grip on power for another four years, he could appoint a
majority of the court.

None of the judges has announced when he or she is going, but speculation is
building in Canadian legal circles.

Closest to the mandatory retirement age of 75 are Quebec Justices Louis
LeBel, 70, and Morris Fish, 71, and Ontario's Justice Ian Binnie, 70, the
court's ranking senior justice, next to Chief Justice Beverley McLachlin.

All three judges were appointed by the Liberals.

Harper's first appointment, Justice Marshall Rothstein, 69, must also retire
in fewer than six years, but it could be sooner since Supreme Court members
rarely wait to the last minute to step down.

All in all, it adds up to an historic opportunity for Harper, or Liberal
leader Michael Ignatieff if he wins the next election, to put an enduring
stamp on the high court by naming three or four judges over the next few
years.

Such a rich prize can scarcely be imagined by any American president, since
the judges of the U.S. Supreme Court are appointed for life (although Obama
has appointed Sonia Sotomayor, and may get a rare double vacancy this spring
if the rumoured exits of Justices John Paul Stevens, 89, and pancreatic
cancer survivor Ruth Bader Ginsburg, 76, materialize).

Political scientist Peter Russell warns that with opportunity comes danger.
"The concern is that with so many appointments, a prime minister might fill
them all with ideological soulmates, because a Supreme Court cannot serve
its country well if it is ideologically loaded in one direction or another,"
he says.

Russell points out that the Canadian Bar Association and legal academics
have called for decades for the creation of a broad-based nominating
commission to create non-partisan short lists of qualified candidates for
the Supreme Court.

"Given the current situation, it is a matter of urgent public business to
establish strong checks and balances on the untrammeled partisan or
ideological choices of any prime minister," Russell argues.

Certainly the Supreme Court of Canada's impending vacancies have raised the
stakes for the next federal election. Picking Supreme Court judges is the
sole prerogative of the Prime Minister. Harper has repeatedly made clear
that he considers the Supreme Court too activist and liberal, and prefers
judges with a restrained approach to enforcing the Constitution.

Meanwhile, there is speculation in Ontario and Quebec legal circles that
Binnie and LeBel, who have had their noses firmly pressed to the court's
grindstone for more than a decade, will be the first to go. Fish could also
depart soon. He has been at the court for less than seven years but has an
ill spouse who lives in Montreal.

LeBel says he has not decided when he will step down. "I like what I am
doing and I am still in good health," he says in the current edition of The
Lawyers Weekly. "When you reach a certain age, rumours start floating
around. If I were to take such a decision the first person who would be
informed would be my wife, and after that my chief justice."

Binnie is also keeping mum. But the ex-top barrister from Toronto who keeps
bees as a hobby could expect a warm welcome back on Bay Street, where he
could take on special assignments conducting public inquiries and high-level
mediations, as have Supreme Court alumni Jack Major, Frank Iacobucci and
Peter Cory.

Only two of the high court's judges are not yet able to retire with full
pensions. Quebec's Justice Marie Deschamps, and Justice Thomas Cromwell,
whom Harper appointed in 2008 to fill the court's Atlantic Canada seat. But
Deschamps, 57, who was appointed by the Liberals, commutes regularly to
Montreal to be with her family, and could go as early as July 1, 2011, when
she will have served nine years.

With LeBel and Fish both facing mandatory retirement soon, that means at
least two, if not three, of the seats reserved for Quebec will open up.

Potential candidates for the spots include Quebec Court of Appeal Justices
Pierre Dalphond and Nicole Duval Hesler to replace Fish, who comes from the
appeal court's Montreal contingent, and Justice France Thibault, to replace
LeBel, who comes from the appeal court's Quebec City wing. All three speak
English.

Of Ontario's three spots on the bench, the only foreseeable opening is
Binnie's seat. Justices Rosalie Abella, 63, and Louise Charron, 58, can both
retire immediately with pensions, but the Liberal appointees joined the
court less than six years ago.

Likely Ontario contenders for the top court include Ontario Court of Appeal
Justices Robert Blair and Robert Sharpe, who both have sterling legal
credentials and speak fluent French.

The court's two western members are also eligible to retire, but Chief
Justice McLachlin, 66, shows no signs of departing. Nor does Rothstein, who
was appointed by Harper just four years ago.

By Cristin Schmitz, The Ottawa CitizenFebruary 20, 2010