Last week, I exchanged an email with a friend who was dodging multiple media calls for comments on the Judge Lori Douglas situation.  Then this week I realised that most of the commentary from law professors in the media was from male colleagues.  Further exploration leads me to the conclusion that some of my perception was due to reliance on the Toronto Star and CBC, and my refusal to read the Post, but it was interesting to read what everyone had to say – so I thought I’d offer it to you here.  It’s not a scientific survey, and I left out people not appointed at law schools.  So, for instance, the article that Christie Blatchford wrote and that, in large part, [significant caveat, i didn't like her smear of the litigant involved]  I agreed with (a first), is not really included here.

So here’s my roundup.  We have Adam Dodek of U Ottawa, and my colleagues (Osgoode Dean) Lorne Sossin and Bruce Ryder commenting here in the Toronto Star.   Ryder said that “prudery” should not drive the debate,  “Sossin suggested it would also be unfair to find Douglas unfit for judicial office simply on the basis of her sexual predilections,” drawing an analogy with earlier reactions to homosexual judges.  Dodek and Sossin both ask about the Judge’s knowledge of events.

More critically, here, for CBC, is Sebastien Grammond, Dean of Civil Law at Ottawa, saying “if pictures of you naked end up on an internet site, it’s quite difficult to say you have the credibility to be a judge.”     The sidebar has A. Wayne MacKay from Halifax and – aha!  – Alice Woolley from UCalgary, both of whom focus on the question of disclosure on the application for a judicial position.

Here’s Annalise Acorn in the National Post – she calls for Douglas to resign:

But at least one legal expert thinks stepping down isn’t enough. Annalise Acorn, a law professor at the University of Alberta, said Judge Douglas should resign.

“Everyone denounces Tiger Woods for having affairs. But all Tiger Woods has to do is hit a ball,” Ms. Acorn said. “A judge has to make decisions about law and justice that affect people’s lives in profound ways. To do so, they must command genuine authority and respect. This situation makes that impossible for Douglas.”

Manitoba’s Karen Busby speaks up for Judge Douglas here in the Winnipeg Free Press:

“She agreed to have sex pictures taken of herself, and that’s all that she ever agreed to,” said Karen Busby, a law professor at the University of Manitoba.  “If that’s a reason to disqualify somebody from being a judge, given that I venture most people have sex pictures out there somewhere, then it’s an impossible standard for anyone to meet to become a judge.”

(the article also quotes Professor Acorn).
Prof. Alice Woolley of Calgary has an op ed here, which also suggests that Douglas is no longer fit for the Bench.  She also blogged about her op-ed and her views in the Legal Ethics Forum blog, here – really worth a read, here’s the opening:

Op-ed writing has some significant disadvantages.  Unlike academic writing, it doesn’t allow time for rumination and rethinking ideas to get the expression of them right.  And unlike blogging it doesn’t have the conversational aspect which allows one to restate or revise one’s thinking/ideas through discussions with others.  And, of course, it allows one to realize, through e-mails and comments on one’s op-ed, that one is a fool, a dangerous fool, nuanced, ignorant, thoughtful, socially conservative, politically correct, a Harper-ite, a liberal, someone with skeletons in her closet, cowardly, brave etc. etc.

In my op-ed I made an argument in four parts.  First, I argued that the process for appointing judges in Canada has fragile legitimacy because it is highly political and not transparent.  Second, I argued that that fragility means that the process has to function well, if it is going to remain in its current form.  Third, I argued that the failure of Lori Douglas to disclose that pornographic pictures of her had been put on the internet, and used to solicit a black client for sex, undermined that process.  Fourth – and this is the most difficult part – I argued that the fact that those pictures had been used in that way disqualify her for sitting on the bench.

In this blog I want to explain further my argument as to why disclosure matters so much, to defend my position on disqualification, and to bring out the ethical issues that – I think – are as important as the issues relating to her judgment.

(I should be clear here that I understand that these snippets and soundbites may either incompletely represent the thoughts of these scholars or actually misrepresent them – part of the issue might be about what the media wants to hear from academics, and not about what those academics actually think).

My own take on all of this is really complicated by the fact that I’m not hearing enough about the race or the gender aspects of it.  In general, I think that it’s a key issue whether she knew what her husband was doing with the pictures and what he was saying.  Taking “nude” pictures shouldn’t matter.  And if we make the pictures themselves – mere nude pictures – their existence, grounds for resignation, then from what I hear about the younger generation, we’re going to have some VERY blackmail-able judges in about ten  years….

But let’s move on.  She’s a woman judge, they are rare birds still.  What is the impact of that fact on these questions and on the media coverage?  Shades of R.D.S. - we focus on the outliers.  Maybe concern about this is why some (many?) female law professors are avoiding commenting publicly.

And while many tend to ignore the race aspect of the incident in favour of the sexual aspects, actually, I would want to do the opposite.  The frisson that interracial-sex-as-porn produces relies on racist (and sexist) tropes (Prof. Alice Woolley touched on this in her op ed and expands on the point in her blog post – she is the only one of the commentators I note above who mention race).   That doesn’t make interracial sex racist (or sex “sexist”).   But it does mean that a certain kind of fascination with interracial sex can be, and often is, racist.  I have no trouble arguing that the kind of websites where the pictures were apparently placed are trafficking in racial stereotypes.   I could present any number of sexual practices that include vividly depicted sexualised or racialized violence – these links are all completely suitable for work, by the way, – do we really think that just because these practices are linked to sex, they fall into a zone of privacy?  For judges?   A judge couldn’t, for instance, belong to a club which rejected non Whites and Jews, but could enjoy the ritual sexualised humiliation of people fitting those two categories in his or her “private” sex life – and if we happen to find out about it we have to ignore it because it’s private?

There aren’t, in my view, lines which neatly divide sex from other parts of our lives, and sorting out the borderlands is always very complicated and messy.   The complainant in this case isn’t really complaining about the sexualised aspects – he’s complaining about racism which was played out in the context of sex.  And the other litigant who has surfaced recently is likewise not complaining about the fact that the judge has a sex life – but about the ways in which some combination of the secret nature of the judge’s sex life, and the judge’s possible participation in scenarios built around sexualised violence might lead to the judge being compromised in her ability to properly adjudicate a case involving similar practices (I find this one murky in terms of what’s actually being alleged).  And in all cases, the standard that judges are held to is much higher than the rest of us, so we don’t all have to start worrying.

So why do I still feel uncomfortable? Because this particular judge is just a judge who got caught.  In a deeply raced and gendered society, how free of those ideas could anyone be?  Is setting a high standard just asking for people to conceal the truth?  And there are truths about ourselves and our behaviour which we might insist on not knowing.  Think critical race theorist Charles Lawrence III’s “The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism“. Is there a space I can squeeze into, between the recognition that this is a racist and sexist society and an expectation that judges should be above all that?  And what about all the (never disciplined) judges who I think crossed many lines much more decisively than this judge did?  I can’t let her off the hook just because judges are rarely punished – but her public flaying is in marked contrast to the muted or non-reaction to statements I would have thought much more appalling from other jurists in living memory.  Not nearly as juicy, I guess.

I do a unit with my first year State and Citizen class (constitutional + public law) where we look at Judicial Ethics. We look at the CJC ethical guidelines, we talk about who in the class is interested in and/or fit for the bench.  We discuss what kinds of activities are and aren’t ok, we look at cases grim and great (the great is Judge A. Leon Higginbotham, Jr.  in Pennsylvania v. Local Union 542, Int’l Union of Operating Eng’s, 388 F. Supp. 155 (ED Pa. 1974)).  But, I don’t want to participate in a discussion of this Manitoba case in a classroom unless I feel confident that any mainly prurient interest can be overshadowed by the learning – and I know that I can’t make that happen in my classroom (I can try but I can’t make it happen – it might happen anyway, of course).   There are ethical implications all around (link is to the CBC’s soul searching on whether or not to run with the story).

I thought, for once, I’d leave a post without a photo.