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Department
Political Science
Course
POLS 3130
Professor
Dennis Baker
Semester
Winter

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Reflections: On Judicial Diversity and Judicial Independence in Dodek, Adam M. and Sossin, Lorne, Judicial Independence in Context (October 29, 2010). JUDICIAL INDEPENDENCE IN CONTEXT, A. Dodek & L. Sossin, eds., Irwin Law, 2010, 193. ▯ Sonia Lawrence I am silver and exact. I have no preconceptions. 1 This contribution is an effort to conceptualize the ways in which we might understand the role that diversity on the bench plays in the independence of the judiciary. Could a judiciary homogenous in terms of race and gender also be an independent judiciary? 2 In this paper, I explore the relationship between diversity and judicial independence and suggest that judicial independence may require a bench which “reasonably reflects the diversity of the society 3 which it serves”. In the Canadian context, judicial independence - the “cornerstone of democracy” - is described as dependenton a wide variety of conditions, including judicial remuneration, court budgets, the discipline of judges, politc is and the appointments process, but these do not ▯ Associate Professor, Osgoode Hall Law Sh cool. With thanks to the editors of this volume for suggesting the topic and for helpful preliminary discussions, encouragement and editorial comments. I am grateful for the excellent, thoughtful research and editorial assistance of Arati Dubey (Osgoode 2009). Special thanks to Dr. Mary Stratton of the Forum on Civil Justice for a helpful conversation about primary research into public perceptions. All errors are entirely my own. 1“Mirror”, in Sylvia Plath,The Collected Poems, ed. by Ted Hughes (NY: Bucaneer Books, 1981) at 173. 2The term ‘race’ here is understood to have a social as opposed to a biological meaning. The lack of scientific foundation to a biological classification system notwithstanding, the social significance of racialization in the unequal distribution of goods cannot be ignored. Trying to be colour blind is as problematic as reifying the concept. My use of the term is intended to capture its social significance without accepting any biological meaning or implying any support for the way that ‘race’ is used in social processes. 3The phrase is from standard advertisements of judicial vacancies at the Ontario Court of Justice. See Ontario Judicial Appointments Advisory Committee, Annual Report for the period January 1,2005 to 31 December 2005, (Toronto: OJAAC, January 2006). Judicial independence is not the only value which speaks to the importance of an independent judiciary. For instance, we could turn to a-tiiscrimination principles: see Dame Brenda Hale, “Equality and the Judiciary: Why Should We Want More Women Judges?” (2001) Public Law 489 (discussion of equal opportunity); Sir Leonard Peach, “Independent Scrutiny of the Appointment Processes of Judges and Queen's Counsel”, online: Department for Constitutional Affairs ; Sally J. Kenney, “Equal Employment Opportunity and Representation: Extending the Frame to Courts” 11 (2004) Social Politics 86. Electronic copy available at: http://ssrn.com/abstract=2043089 4 usually include a diverse judiciary. There is also a significant, but almost completely separate, 5 Canadian literature about diversityon 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 6 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 establishedinstitutional level judicial independence in this country. Thus even the government is prepared to accept that the bench oughtto be diverse, and many will recognize the problem 4 In Canada, judicial independence is protected under the Charter s. 11(d), and ss. 96-100 of the Constitution. Judicial independence is a principle of fundamental justice under section 7 of the Charter, and it is an unwritten constitutional principle. For example, see Carl Baar, "Judicial Independence and Judicial Administration: The Case of Provincial Court Judges" (Summer 1998) 9 Constitutional Forum 114; Michael Bryant, "Judging the Judges: Judicial Independence and Reforms to the Supreme Court of Canada Appointment Process" (2004) 24 Supreme Court Law Review 29; Martin Friedland, "Judicial Independence and Accountability in Canada" (2001) 59 The Advocate 859; Ian Greene, "The Doctrine of Judicial Independence Developed by the Supreme Court of Canada" (1988) 26 Osgoode Hall Law Journal 177; William R. Lederman, "Independence of the Judiciary" (1956) 34 Canadian Bar Review 1139; Wayne Renke, "The Independence and Impartiality of Provincial Court Judges" (Summer 1998) 9 Constitutional Forum 121; Gerald T.G. Seniuk, "Judicial Independence and the Supreme Court of Canada" (1998) 77 Canadian Bar Review 381; “First World Conference on the Independence of Justice: Universal Declaration on the Independence of Justice” (Adopted By The First World Conference On The Independence Of Justice, Montreal, June 1983). In S. Shetreet and J. Deschênes, Eds., Judicial Independence: The Contemporary Debate , (Boston: Martinus Nijhoff Publishers, 1985). Peter Russell & David O'Brien, eds.,Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World (Charlottesville: University Press of Virginia, 2001). Critiques of judicial appointments processes in other jurisdictions have more clearly developed the link between judicial independence and the identity of judges. See especially Du Bois, “Judicial Selections in post apartheid South Africa” in Peter Russell & Kate Malleson, eds., Appointing Judges in an Age of Judicial Power: Critical Perspectives From Around the World (Toronto: University of Toronto Press, 2006). 5Almost all of this literature is about gender; see for instance, National Association of Women and the Law, Creating Diversity on the Bench: Submissions to the Department of Justice on Revising the Federal Judicial Appointments Process (Ottawa: NAWL 1993); Reg Graycar, ‘The Gender of Judgments: Some Reflections on Bias’ (1998) 32 University of British Columbia Law Review 1. Madam Justice C. L'Heureux-Dubé, “Making a Difference: The Pursuit of a Compassionate Justice” (1997) 31 U.B.C. L. Rev. 1 at 7. Some of this literature takes an empirical approach, see:James Stribopoulos, Moin A. Yahya, “Does a Judge's Party of Appointment or Gender Matter to Case Outcomes?: An Empirical Study of the Court of Appeal for Ontario” (Summer 2007) 45 Osgoode Hall L.J. 315; Peter McCormick and Twyla Job, “Do Women Judges Make a Difference - An Analysis by Appeal Court Data” (1993) 8 Can. J.L. & Soc. 135 (but see critique in Joan A. Brockman, “Difference without at Distinction” (1993) 8 Can. J.L. & Soc. 149.). 6American scholar John Ferejohn, in “Independent Judges, Dependent Judiciary: Explaining Judicial Independence” (January/March 1999) South California Law Review at 353 argues that judicial independence has no value in and of itself, but is only a means to other ends: “Institutional judicial independence is, however, a complex value in that it really cannot be seen as something valuable in itself. Rather, it is instrumental to the pursuit of other values, such as the rule of law or constitutional values.”; Peter Russell describes impartiality as a “sister concept” to judicial independence (Russell, “Towards a General Theory of Judicial Independence” in Russell & O’Brien, supra note 4 at 2). Electronic copy available at: http://ssrn.com/abstract=2043089 of a bench that lacks diversity – but we cannot recognize it as a judicial independence 7 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 8 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 9 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. 7Government statements, politically expedient as they maybe, indicate that reflecting society and diversity are goals in judicial appointment. For the goal statements of the Ontario Judicial Appointments Committee and the Office of the Commissioner for Federal Judicial Affairs, see infra notes 56, 68. 8 Although few would define judicial independence as threatened only by the activities of governments, the majority of commentary and judicial consideration in Canada is focused on this aspect. One counter example is Patricia Hughes, “Judicial Independence: Contemporary Pressures and Appropriate Responses” (2001) 80 Canadian Bar Review 181 (considers the possible impact on judicial independence of harsh public critique of feminist judges or decisions with feminist underpinnings). There is a more extensive American literature on threats to judicial independence from organized non state actors. See for instance, Richard Delgado, Rodrigo’s Committee Assignment: A Skeptical Look at Judicial Independence, (1999) 72 S. Cal. L. Rev. 425. 9A third argument, at its most cynical, suggests that debate over judicial independence is a device which distracts critical attention away from the (sometimes unjust or discriminatory) substance of judicial decisions. See Delgado,supra note 8 at 438. Can a Homogenous Bench be an Independent Bench? Peter Russell writes: “The study of judicial independence cannot possibly cover all of the connections between the judiciary and the world in which it is embedded. 10 One of the important connections that Russell asks about is the connection between the identity characteristics of judges and the status hierarchies apparent in the larger social structure. Where the identity characteristics of the judges are those of the powerful in other sectors of social, political and economic life, as opposed to a mirror of the population being judged, has judicial independence really been established? I offer two suggestions about how independence is affected by such conditions. First, the judiciary has strong social and identity connections to already powerful identity groups in an unequal society. This sets the judiciary up as a symbol of social exclusion which may harm the democratic legitimacy of the institution (particularly in the perception of excluded groups). Second, the judiciary as a group is largely homogenous, and the institution and its individual members are largely able to pursue their work without facing ‘the challenge of difference’ from peers and colleagues (although they may well face it daily on the other side of the bench). These two suggestions rely on a particular vision of impartiia l (the sister concept of judicial independence), a critical and realist approach which accepts that individual experiences have shaped and formed each person, and they condition the way that we see and understand things. In a society deeply marked by inequality, our experiences are closely linked to our ascriptive identities. However, we also recognize judicial n idependence as a characteristic which manifests at both the individual and the group level. This moves us beyond a consideration of individual ascriptive characteristicsand towards an exploration of the way that these characteristics in aggregatecan affect theindependence of the group or institution. My first suggestion indicates that we cannot ignore the connection between the judiciary and the other hierarchies which markour society without allowing the judiciary to be a(nother) symbol of hierarchy through difference, another marker of where power resides in terms of colour, ethnicity and gender. Arguably, some harm to judicial independen ce is done through 10Russell, in Russell & O’Brien, supra note 6 at 4 (Russell goes on to ask “What are the relationships that are thought to have the greatest bearing on judicial independence in terms of enhancing or threatening judicial independence?”) the connection of the judiciary with the powerful members in society through a variety of forms of privilege differentially distributed through (for the purposes of this discussion) ascriptive identity characteristics. I do not mean to equate this social connection with insecure tenure or insufficient remuneration, issues which might lead to doctrinal or constitutional arguments about a lack of judicial independence. For one thing, these bonds of social connection are not easily manipulated like tenure and remuneration. Instead, my point is that dominant understandings of judicial independence may ignore simple truths about unequal societies. In some ways, the bench is just another symbol of persistent exclusion, and as such it may fail to attract the confidence of the public, particularly those sections of the public that are unrepresented. 11 If the consequences of a homogenous bench could include a loss of faith in the ability of the courts to deliver fair and impartial justice, thiscreates a clear and important role for diversity on the bench in establishing and maintaining judicial independence. In part, the issue I have raised, of exclusion, public confidence and legitimacy, is an empirical question, and unfortunately there is a dearth of solid and relevantdata. This is not simply because of a lack of strong data sets, but also because the data that does exist suggests that many of us are “deeply confused,” demanding that judges adhere to tradition and at the same time believingthat judges are “old and out of touch” . Questions about how judicial diversity might affect public confidence, and in particular the confidence of minority populations, are complicated by the possibility that for many, the classical image (white, male, older, able bodied) of the judge is comforting and inspires confidence precisely because of the deep roots of the privilege accorded this group. If, as the public, we have confidence in a group of judges because we have internalized a set of prejudicial, racist and sexist attitudes, ought we to be allowed to use this to defend an unrepresentative judiciary? Although some authors have concluded that judges do not understand the public that they serve, the question of whether or not the public – or which publics – connect this lack of 11Sherrilyn A. Ifill, “Judging the Judges: Racial Diversity, Impartiality, and Representation on State Trial Courts” (1997)39 B.C. L. Rev. 95 at 98 (the persistent exclusion point). The homogeneity of the bench is obviously linked with, although not completely explained by, the homogeneity of the bar. 12 Hale, supra note 3 at 501-02 (concern with people associating authority, neutrality and seriousness with older middle class men). understanding with the identity of individual judges, the diversity on the bench, or the 13 representativeness of the judiciary is not answered by the available data. The Canadian Forum on Civil Justice has concluded that “[s]uch [large scale] results as are available are mixed, but usually more positive than negative,” but perhaps more importantly, “…there is surprisingly little reliable empirical evidence about public perceptions of the justice system – we know less than we thought we did and there is a lot that we do not know.” 14 There are some U.S. and U.K. studies which suggest that distrust of the court system (generally, as opposed to specific positions within that system, such as judges) is higher among some minority communities, and that a lack of diversity within the system enhances this distrust. 15 One U.K. study found that significant numbers of minorities said that increased numbers of ethnic minority personnel (not limited to judges, however) would enhance legitimacy of, authority of, and confidence in, the courts. 16 However, experts in both the UK and Canada describe a serious need for more and better empirical research into this particular 17 question. We could also, of course, approach the question of democratic legitimacy normatively instead of or in addition to empirically and argue that “it is wrong in principle for 13See for instance, D. Martinson,“Some Thoughts on Public Perceptions of the Role of Judges in the Administration of Justice in Canada” in J.M. Brisson and D. Greschner (eds.), Public Perceptions of the Administration of Justice (Montreal: Les Editions Themis, 1995) at 35-56). 14 Mary Stratton, “Public Perceptions of the Role of the Canadian Judiciary” The Canadian Forum on Civil Justice, (December 2005), online: CFCJ . 15 Both studies can be found at the National Center for StaetCourts website: David B. Rottman et al, “Perceptions of the Courts in Your Community: The Influence of Experience, Race and Ethnicity. National Center for State Courts” (January 2003), online: ; F. Bennack, “How the Public Views the State Courts: A 1999 National Survey” (14 May 1999), online: . 16Shute et al,A Fair Hearing? Ethnic Minorities in the Criminal Courts (Portland: Willan Publishing, 2005) at 115. See also Julie Vennardet al,“Ethnic minority magistrates’ experience of the role and of the court environment” (2004), online: Department for Constiutional Affairs (UK) at 50, 115. The Vennardet al study looked at magistrates, appointed as lay people. It found some evidence that ethnic minority magistrates felt that more ethnic minority appointments would improve the confidence of minority communities in the Magistrates courts. 17 Personal communication with Dr. Mary Stratton, Research Director at the CFCJ (July 31, 2008). See also C. Thomas,Judicial Diversity in the United Kingdom and Other Jurisdictions: A review of research, policies and practices. (London: Commission for Judicial Appointments, 2005) at 108 (“A more comprehensive study of whether ethnic minorities and whites view the courts (and judicial diversity) differently in terms of the fairness of courts and confidence in the judiciary, and what impact recent direct court experience has on these different group’s opinions…would more directly address the issue of whether the current make-up of the judiciary meets the justice needs of a multicultural Britain.”) 18 [such] authority to be wielded by such a very unrepresentative section of the population”. Developing the empirical side of this argument, however, may provide substantial persuasive power in public policy debate. It would also encourage attention to public opinion as a critically important and under-researched aspect of judicial independence. My second suggestion about why a homogenous bench cannot be judicially independent looks at the judicial community as a significant part of the context informing each individual members decision making: “impartiality is not some stance above the fray, but the characteristic of judgments made by taking into account the perspectives of others in the 19 judging community ” Taking the phrase “judging community” quite literally, a judiciary that is homogenous arguably lacks what American scholar Sherrilyn Ifill calls “structural impartiality”: Structural impartiality is realized through the interaction of diverse viewpoints on the bench and the resulting decreased opportunity for one perspective to consistently 20 dominate judicial decision making. Jennifer Nedelsky draws a connection between familiarity with diverse view opints and the exercise of judgment: …if the faculties and student bodies of law schools, the practicing bar as well as the judiciary actually reflected the full diversity of society, then every judge would have had long experience in exercising judgment, through the process oftrying to persuade (in imagination and actual dialogue) people from a variety of backgrounds and perspectives. This would better prepare judges for judging situations about which they had no first- or even second-hand knowledge. It would vastly decrease the current likelihood of a single set of very limited perspectives determining the judgment. 21 Nedelsky suggests that imagination can play a role, whereas Ifill’s structural impartiality is a concept she has argued for in litigation and requires the interaction to be between real people. But both are recognizing that when there is a “difference” in a room, it is the whole room 18Hale supra note 3 at 502. 19Jennifer Nedelsky, “Embodied Diversity and the Challenges to Law” (1997) 42 McGill L.H. 91 at 107. See also The Hon. Maryka Omatsu,, "The Fiction of Judicial Impartiality" (1997) 9 Canadian Journal of Women and the Law 1 at 7 (arguing that the presence of members of undrpresented groups on the bench compensates for a lack of experience which can create “systemic” blind spots). 20 Sherrilyn A. Ifill, “Judging the Judges: Racial Diversity, Impartiality, and Representation on State Trial Courts” (1997)39 B.C. L. Rev. 95 at 119. 21Jennifer Nedelsky, supra note 19 at 107-108. which, in some ways, becomes different than it was before. To the extent that judge’s dining rooms, libraries, training sessions, and the like are homogenous, they do not offer as many opportunities for facing different perspectives as they could. 22 As a group, the range of beliefs, experiences and attitudes is narrower than that found in society as a whole. Perhaps their range of approaches and solutions is as well. The significance of diversity is heightened (and the empirical evidence is even more clear) when we look at appellate courts sitting as panels, where judges must deliberate and craft decisions as agroup. 23 This concept is fundamental to understanding the role that diversity plays in furthering judicial independence. Empirical evidence supports the view that diversity on judicial panels changes the dynamic in ways which give rise to changed decisions. To the extent that this suggests that appointing and elevating judges in ways which create homogenous courts is a method of manipulating decisions, it also suggests that democratic legitimacy is potentially harmed if judges are not appointed and elevated in ways which reflect the society being judged. Beyond Diversity: The Reflective Judiciary Having suggested some problems arising out of a homogenous judiciary, I now turn to the question of what would rectify these problems. The original brief of this article was to comment on diversity and judicial independence, but now I am not sure that diversity is the right term at all. I suspect that one of the ways that questions about diversity on the bench get separated from questions of judicial independence through the use of the term ‘diversity’ itself. In exploringwhat the term itself means, I consider the kinds of diversity relevant to this discussion and suggest that the term diversity be replaced by the notion of reflection, or representativeness. 22 See Jeremy Webber, “The adjudication of contested Social values: Implications of Attitudinal Bias for the Appointment of Judges” in Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (Toronto: OLRC, 1991) at 27 (“…broad representation within the court system…is valuable first as a way of confronting judges with the fact of normative diversity. When different perspectives are represented among their colleagues judges areless likely to fall into an easy consensus, a consensus which may not reach much beyond the courthouse, large downtown firms and those firms’ clients……we must have more of the diversity of our society represented on the bench, so that the inescapable residue of attitudinal bias in adjudication reflects something of the range of attitudes present in our society.”). 23See for instance, Stribopoulos and Yahya, supra note 5. Outside the Canadian context and more generally on this topic, see: Harry T. Edwards, “The Effects of Collegiality on Judicial Decision, Making”, (2003) 151 U. Pa Law Rev. 1639; Lewis A. Kornhauser & Lawrence G. Sager, “The One and the Many: Adjudication in Collegial Courts” (1993) 81 Cal. Law Rev. 1. Diversity itself could have many meanings in the context of the judiciary: diversity of political opinion; diversity of routes to the bench; diversity of practice specialties prior to elevation. In this paper, the basic question (can a homogenous bench be an independent bench?) relies only on an absence of diversity. But what is the opposite? I propose that diversity is too vague, and suggest instead the notion of a judiciary which represents or reflects the community it serves. Whether we use the term diverse, representative or reflective, we have to answer basic questions about which aspects of identity we are interested in. If we seek to change the composition of the bench because of concerns about inequality and power compromising judicial independence, then it should be those aspects of identity most relevant to inequality and power which interest us. Relying on an anti-oppression or anti-subordination framework, we can assertthat questions of difference and diversity are important because of the ways that the power to subordinate and oppress classes of people operates and isreinforced through the marking of difference. The enormous power of the law makes the judiciary particularly critical, and as Peter Russell has written,the public is increasingly demanding this “unmasking the 24 power of judicial elite to recreate itself and the social exclusiveness of that elite.” We should, then, concentrate on those differences which serve as society, or “significant social divisions” in society at large. This paper does not purport to outline which differences matter – especially since my argument acknowledges that these will differ amongst jurisdictions and through time- but it does seem that some measures of difference amongst the judiciary,such as practice specialties prior to elevation, do not mark significant social divisions in society at large (although there is the important possibility that they are an indirect marker, a vehicle for 25 systemic forms of discrimination .). In seeking out those differences which mark major 24Here I refer both to the choice ofjudges and to the activities of judges. See Errol Mendes, “Promoting Heterogeneity of the Judicial Mind: Minority and Gender Representation in the Canadian Judiciary” in Ontario Law Reform Commission, Appointing Judges: Philosophy, Politics and Practice (Toronto: OLRC, 1991) at 94: “…the Canadian legal system reinforces an unrepresentative and assimilating “power paradigm””. Peter Russell, “Conclusion” in Russell & Malleson, supra note 4 at 422. 25 The Department for Constitutional Affairs in England collects information on type of practice as part of its efforts to ensure a more representative judiciary. See infra note 48. Similarly, this paper does not look directly at ideological commitments, political party affiliations or donations, a complicated and controversial area of study. See, for instance, Matthew Hennigar, Troy Riddel & Lori Hausegger “Judicial Selection in Canada: A Look at Patronage in Federal Appointments since 1988” (2008) 58 University of Toronto Law Journal 39 (using evidence of donations to political parties to suggest that patronage plays a role in federal judicial appointments); Craig Forcese and Aaron Freeman, The Laws of Government: The Legal Foundations of Canadian Government (Toronto: Irwin Law, 2005); Kirk Makin, “Appointment of Judges too Political Critics Say” Globe and Mail(16 May 2005); Peter H. Russell and Jacob S. Ziegel, “Federal Judicial Appointments: An Appraisal of the First Mulroney social divisions I could look to a variety of sources – recent political controversy, recent legal controversy, media reports, public opinion polls. We should not underestimate the significance of the choice of “relevant” difference, since these choices participate in the creation and recognition of the categories we claim to merely recognize. 26 For instance, none of the characteristics central to this paper feature in the Supreme Court Act – but that Act does require that three of the judges appointed be from the Province of Quebec. 27There is also a long term custom of appointing the other judges in a way which creates regional diversity on the Court, all of w hich constitutes recognition of the significance of regional divisions in Canada. Dubois points out that in South Africa, at least, there is reason to be concerned that “dimensions of diversity that may be less central to social conflict (e.g., sexual orientation and physical handicaps) fall by the wayside”. 28 In this light, we might also think about the broad support garnered by (ultimately unsuccessful) calls for an Aboriginal judge to sit on the Supreme Court of Canada as indicative of the ongoing centrality of the settler/First Nations conflict in this country. 29 South Africa’s Constitution requires that judicial officers “reflect broadly the racial and gender composition of South Africa” but it is perhaps worth noting that, centrality to social conflict aside, it is the relatively larger vulnerable groups (women, racialized people) who have achieved constitutional mention in South Africa. 30 The Canadian statistics squarely raise the question of prioritization in mechanisms for ending the domination of the bench by a single group, since they show a remarkable improvement in the appointment of women, but significantly less progress in appointing visible minorities, First Nations people and the disabled. Government’s Appointments and the New Judicial Advisory Committees” (1991) 41 University of Toronto Law Journal 37. See also Russell, in Russell & O’Brien, supra note 6 at 17: “The greatest danger to judicial independence from political manipulation of the staffing or promotion process is ideological conformity.” 26 Du Bois,supra note 4 at 282; see also Russell, in Russell & Malleson, “Conclusion” supra note 4 at 432. 27Supreme Court Act( R.S., 1985, c. S-26 ), s.6. 28Du Bois,ibid. at 282. 29National organizations and prominent scholars supported this call. See for instance, Richard Blackwell, “Lawyers call for native on top court”The Globe and Mail (3 October 2005); see also the Canadian Bar Association’s Resolution 05-01-A: “Recognition of Legal Pluralism in Judicial Appointments” (passed August 2005), online: CBA ; Canadian Association of Law Teachers, Panel on Supreme Court Appointments Report June 2005 (concluding, inter alia, that “The Supreme Court should have at least one justice who is an aboriginal person and the independent commission should have aboriginal representation. The Supreme Court should be composed of no fewer than four women.”, online http://www.acpd-calt.org/english/docs/SupremeCourt_panel.pdf 30Constitution of the Republic of South Africa, 1996, s.174(2) (“The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed..”). There are, of course, complications involved in trying to discuss the composition of the judiciary from an anti-oppression standpoint. First, current appointments requirements ensure that the judiciary cannot reflect the population. In Canada, the group of people eligible to become judges consists entirely of lawyers. Since socio -economic status combines measures of education, occupation and income, lawyers will tend to sit at the higher reaches of any scale.31 In other words, there are built-in limitations or occupational qualifications which ensure that, for instance, no one with limited education could ever become a judge. Likewise, judicial salariesall but ensure the financial security and socio economic status of sitting judges. Given the significance of the judiciary as a part of society and a branch of government, these inherent limits are significant. Since education requirements alone ensure that the judiciary can never be a perfect cross- section of society, the gatekeeping functions performed by universities and law schools become inextricably intertwined with the appointments process and its outcomes. Opponents of changes in appointment methods to create a representative bench assert that we can simply wait for a “trickle up” effect– as more women and minorities graduate for law schools and practice law, they will gain the seniority necessary for a successful application to become 32 judges. Yet the data are at least equivocal on this point. In Canada, for instance, there are clear indications that women in the legal profession are choosing markedly different career 33 paths than men. Likewise, the empirical research in the U.K. shows critical differences 31But see Dame Brenda Hale,supra note 3 at 503: “…by definition judges will be middle class when appointed but that does not mean that they should be middle class hen they are born.” A few sample statistics will indicate the high earnings of lawyers and judges. Recent Canadian statistics (based on the 2004 tax year) show that those earning over $89 000 per year are in the top 5% of tax filers: High-Income Canadians September 2007 8(9) Perspectives on Labour and Incom.eOnline, . In 1995, when the average income of all earners was $30, 600, the average income of lawyers was $75, 200. Lawyers earned 146 times the average: Abdul Rashid, Earnings of Lawyers Spring 2000 Perspectives (Statscan) 18. Catalogue 75-001 XPE. Judicial salaries in Canada are set by statute. Bill C-17, granted royal assent in December 2006 raised judicial salaries so that the Chief Justice of the Supreme Court made $298,500 and the other judges of that court $276,400 each. Judges of the Ontario Superior Court of Justice received $232, 300:Judges Act ( R.S., 1985, c. J-1 ), ss. 9, 12(d). 32This indicates the critical role of early educational equality of opportunity in terms of creating a representative pool of potential judges. See K.D. Ewing, "A Theory Of Democratic Adjudication: Towards A Representative, Accountable And Independent Judiciary" (2000) 38 Alberta Law Review 708 at 721 (suggesting a career judiciary as an appropriate solution to the lack of representativeness on the bench in the U.K.). 33In the Canadian context, see: J.M. Leiper, “It was like ‘wow!’: the experience of women lawyers in a profession marked by linear careers” (1997) 9 Can. Journal of Women and the Law 115; David Stager & David Foot, (1989) “Lawyers Earnings Under Market Growth and Differentiation 1970–80” 22 Canadian Journal of Economics (1989) 151; Fiona M. Kay, “Flight from Law: A Competing Risks Model of Departures from Law Firms.” (1997) 31 Law and Society Review 301; J. Hagan & F. Kay, Gender in Practice: A Study of Lawyers between the career paths of minorities and whites entering the legal profession. 34 These differences are precisely those which affect competitiveness for a judicial position. These data are clear that simply waiting for trickle up effects will not produce a bench which is representative of the profession, let alone of the public. A second significant complication when moving from mere diversity to reflectiveness is that categorizing and counting(to measure whether the goal is met)requires a certain reshaping of complex realities and frequently raises thorny questions. Many categorizations or ascriptive markers present difficulties because they are particularly fluid or variegated. Disability, for instance: many people move into (and out of) the category of disabled; the category includes conditions which are visible and those which are invisible; the category includes conditions which create severe hardship in everyday life, and those where the hardship is considerably less significant. Sexual diversity also presents challenges when we are trying to describe what a 35 reflective judiciary might look like.
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