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AbstractJudges who are self-governing, who cannot be fired or demoted for decisions unfavourable to government enjoy independence from government. Although judges are selected and paid by government, such independence is not only a constitutional standard; it is a prerequisite to justice. My sense is that at least the US federal judiciary manifests more judicial independence. Federal judges in the US enjoy lifetime tenure and they operate their courts to a greater extent than in Canada. They are more independent from government justice departments. American judges admit and sanction lawyers who bring cases before them, and deal with the unauthorized practice of law, not leaving this to state authority. Public defenders and court staff are appointed and managed by the judges of that court, not by government departments as in Canada. Lower ranking magistrates and bankruptcy judges are appointed by appellate judges. The Chief Judge of the court is responsible for all administrative aspects of the court. The Chief Justice of the Supreme Court of the United States is the Chief Executive Officer for the whole federal judicial branch. A semi-annual convention of the Circuit chiefs and an equal number of representative District Court judges in the "Judicial Conference" formulate judicial policy and the procedural rules of court. A recent example is the application of the death penalty. In Canada, the death penalty is not the law and that is unlikely to soon change. Even if we had the death penalty, we would likely never charge, convict, or execute a mentally disabled person. We would never even refer in public discourse to the accused as "mentally retarded". All this describes the Virginia v. Atkins case that was argued before the US Supreme Court in February 2002. Another case before the US Supreme Court this term is whether an employer can paternalistically refuse to hire employees for work that will seriously injure or kill them. This type of question would be unthinkable in Canada, much less in the highest court in the country. In the 2002 term, the US Supreme Court will examine the constitutionality of the California three strikes law, another law that would not be envisaged in Canada. There is a broader ideological spectrum of debate and less so-called political correctness in American judicial speech.
Article deposited after permission was granted by the editor of LawNow Magazine, 06/28/2010.