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.
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
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,
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
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
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.
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
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.
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
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
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).
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
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
judging community ” Taking the phrase “judging community” quite literally, a judiciary that
is homogenous arguably lacks what American scholar Sherrilyn Ifill calls “structural
Structural impartiality is realized through the interaction of diverse viewpoints on the
bench and the resulting decreased opportunity for one perspective to consistently
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).
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
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
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
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.
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.”
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.”,
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
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
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
reflective judiciary might look like.