We all possess a certain image of a judge. He is old, male, and wears pinstriped trousers. ….He is respected and revered. His word is, literally and figuratively, the law, eternal, majestic. Even those of us who do not fit naturally into the traditional image tend to grow into it. The truth cannot be avoided. We judges like the old image. We cling to it. And why not? It brings comfort, the comfort of knowing one is right, at least pending the verdict of a higher court, although most of us learned to rationalize that as well. It brings security, the security of knowing what to do and when to do it. And it brings gratification, the gratification of knowing we are important and appreciated. Right Honourable Beverly McLachlin P.C., “The Role of Judges in Modern Society” (The Fourth Worldwide Common Law Judiciary Conference, Vancouver, 5 May 2001)
She doesn’t mention it, but did anyone picture a judge that wasn’t white?
Almost every day that we are in court, we see the lack of minority representation staring back at us. (Federation of Asian Canadian Lawyers statement in response to Globe and Mail story about race and appointments to the Federal bench)
Kirk Makin, Globe and Mail reporter, really did us a favour with his carefully researched piece which found that of the last 100 appointments to the federal bench, 98 were white.
That’s disappointing although not, I should say, surprising, really. The government doesn’t keep any statistics on racialization amongst the pool or the appointments, so Makin had to sleuth it out himself. A few years ago, I wrote a piece on this and submitted a Freedom of Information Request to the Office of the Commissioner for Federal Judicial Affairs Canada because I thought they must have the stats and be too humiliated to post them. But my FOI produced “no records” (more on what I wrote and link below). Naïveté is one of my more charming traits, I hope. And, of course, keeping no information is one way to stonewall claims of discrimination.
The Federation of Asian Canadian Lawyers issued a statement last week, a nice long one, which I recommend reading here. Prepared by Paul Jonathan Saguil (Osgoode 07) and Immanuel Lanzaderas (Queens 09), two Directors of the organization, it demands a more transparent process, inter alia.
Yet neither Makin’s piece nor the FACL piece do anything with gender. Gender appears in the G&M piece only as a comparative anlalysis not as an intersectional one:
“One Superior Court judge, who is a member of a minority community, said governments simply can’t claim the pool of candidates is too shallow. “The same thing could have been said about women lawyers, but that didn’t stop a push that greatly increased the number of women judges at all levels of the courts – including the Supreme Court of Canada,” he said.
Wait, how did that happen? If we’re really concerned about one, and we’re concerned about the other, why are they on totally separate tracks? See here for IFLS posts with intersectionality in them. I don’t doubt that many of the people who care about one do truly care about the other and there are reasons that they get split.
- For one, the Office of the Commissioner for Federal Judicial Affairs Canada does keep gender statistics. These show overall that when supernumary judges are counted, we are at about 32% women. But the numbers vary wildly across provinces and between Courts of Appeal, Superior Courts and Family Courts (the NWT court of appeal has four judges, 1 supernumary, and 4 women, for instance, whereas Saskatchewan CA has 3 women out of 11 total).
- Secondly, as the quote above suggests, in Canada the profession admitted white women in significant numbers before it opened up to visible minorities in the same numbers. But does no one want to talk about intersectionality here? It isn’t a new concept. It is true, as in other areas of research into the legal profession that when even the numbers of racialized minorities are so tiny, the intersectional group is so small that no real conclusions can be drawn (see for instance, parts of the LSUC’s report on gender, race and remuneration, IFLS post here). Doesn’t anyone even want to make twofer jokes?
- Finally (and you can read more about this in my article below if you want), why stop at race and gender? These aren’t at the top of some cosmic list. There are other salient identity characteristics in this kind of inegalitarian society, such as disability, sexual orientation, religion, class – and these all present their own serious challenges to measurement, recruitment and defining what it is we need and expect from our bench.
The paper I wrote is available on SSRN, here. You can also find me
ranting quoted here about the crisis of legitimacy created by the “wildly” unrepresentative upper echelons of the administration of justice. The paper focused on the question of whether the judiciary needs to be “diverse” or “representative” to have institutional judicial independence. Here’s the opening:
In the Canadian context, judicial independence – the “cornerstone of democracy” – is described as dependent on a wide variety of conditions, including judicial remuneration, court budgets, the discipline of judges, politics and the appointments process, but these do not usually include a diverse judiciary. There is also a significant, but almost completely separate, Canadian literature about diversity on the bench. Why the separation?
Part of the reason is that judicial independence (like any concept worth its salt) is not particularly well defined. Attempts at definition are often cabined by jurisdiction or limited to the world of theory. Furthermore, judicial independence is not a “goal in itself,” but rather a means to impartiality and legitimacy, so that links between diversity and legitimacy and impartiality might not explicitly mention judicial independence despite a clear connection. Another possible reason for the paucity of direct considerations of the topic may be the sense that we believe we have established institutional level judicial independence in this country. Thus even the government is prepared to accept that the bench ought to be diverse, and many will recognize the problem of a bench that lacks diversity – but we cannot recognize it as a judicial independence problem. Most of the commentary about judicial independence consists of the argument that a given change or group of changes (usually changes initiated by government) is harming judicial independence. Linking diversity on the bench to judicial independence, on the other hand, would suggest that we have not truly had judicial independence in the past, since historically it has been undeniably a homogenous bench – at least in terms of race, ethnicity and gender. The context of many judicial independence controversies means that arguments for judicial independence are often – read simply – arguments against interference with existing practice. Demand for a diverse bench, in contrast, usually consists of requests for a break with past practice. Establishing the link between judicial independence and diversity on the bench brings in new questions and opens new areas for research and policy making.
In part I of this paper I begin to sketch an answer to the question, “can a homogenous bench be an independent bench?”, focusing on democratic legitimacy, public confidence and the idea of structural impartiality. In part II, I suggest that ‘diversity’ cannot cure the problems that have been identified, and that legitimacy and public confidence require some attention to the courts as representative institutions. I then attempt to sort through the complications arising from this suggestion, and defend the notion of a representative bench from some of the main critiques. Part III briefly describes two systems of judicial appointment in Canada, and the different approaches they take to the question of diversity and representation. Finally, I conclude by describing basic research questions which arise from this exploration, and accepting the limitations of calls for a ‘reflective’ bench.
Even pointing the two people who read to the end to my own work feels odd, so let me at least say that I also feel like someone might read this and roll their eyes, thinking that I’m trying to make a case in my own service. That’s ridiculous, isn’t it, that I’m fretting about that? But I think that it speaks to one of the real challenges of the idea of “representation”. Anyway, for the record no, never. Reasons too numerous to recount.