There has been some rather unpleasant controversy over judicial appointments of late, following the appointment of professors Grant Huscroft and Bradley Miller to the bench in Ontario. The Globe and Mail‘s Sean Fine has been busily pushing the narrative of “conservative” appointments, focusing on the new appointees’ criticism of Canadian courts and laws. On Twitter, La Presse’s Yves Boisvert chimed in, claiming that we are witnessing a “worrying Americanization of judicial appointments by the Harper government.” And in response to some criticism (on which more in a moment), Mr. Fine sarcastically suggested that “Canadians mustn’t use the P-word when discussing judicial appointments” ― the p-word being “politics,” I suppose.
In an excellent op-ed in the Globe, Lorne Sossin and Grégoire Webber have pushed back against the “conservative appointments” narrative. The focus on the new judges’ political inclinations, they say, is in part “the product of the partisan era of judicial politics in which we are living in Canada,” especially in the wake of l’Affaire Nadon, but it is also the product of the media’s “filtering all other stories about the justice system through a partisan lens.” The media, Dean Sossin and prof. Webber suggest, are only interested in the aspects of the new appointees’ public record that might suggest sympathy for the government, while labelling them as “conservative” is misleading insofar as it may suggest partisanship.
At the same time, there is concern about a lack of “diversity” among the Harper government’s judicial appointments ― diversity being understood along the lines of gender and ethnicity. As Dean Sossin and prof. Webber note, only three of the 17 recent appointees in Ontario (among whom were profs. Huscroft and Miller) are women. As Stephen Lautens explained in the Canadian Lawyer back in September, the federal government claims that it appoints relatively few women judges because few women apply ― but it doesn’t release the actual numbers that would back up its claims. In the provinces that do release them, however, women are just under half of the applicants to provincial judgeships, and are appointed in very nearly the same proportion as they apply. The suspicion, then, is that something is rotten in the state of federal judicial appointments.
There are two ways of looking at the problem. From the perspective of the applicants, the issues is, or strongly seems to be (I guess we cannot assert with perfect confidence since we don’t have the numbers), outright discrimination. Whether the reason for it is pure sexism or rather an inclination to treat gender as a proxy for ideology (I personally suspect that the latter is at least a significant part of what is going on), it’s stereotyping, it’s offensive, and just wrong. People are being told to apply for judicial positions, but they are not being told that deck is stacked against them. That’s not how a decent government would behave.
We can also consider the apparent homogeneity of newly-appointed judges from the standpoint of the justice system or of society at large. It is often suggested that the judiciary should be a “reflection” of the community, meaning presumably that it demographic composition should (roughly?) parallel that of society. So, for instance, half of all judges should be women. But this idea of “reflection” is a bit misleading. Nobody really thinks that judges should be a mirror image of the community along every dimension. Judges are necessarily older, for one thing ― as well as more educated, more professionally successful, more judicious while less judgmental, and so on. Even the average judge should be nothing like the average Joe, or the average Jane. In fact, I’m not sure why it would matter that the judiciary look like the community. Some might say it’s a matter of legitimacy, but if we assess the legitimacy of judges by their looks, we are, it seems to me, in a bad way.
What really matters from a systemic or societal perspective, I would argue, is not the diversity of appearance, but diversity of opinion. After all, we pay judges not to look pretty ― in fact we make them wear robes that make them look slightly bizarre but, importantly, all the same, almost ― but to think. Now the views of the judges, as of any other human beings, are in part shaped by personal background and life experiences (as the Supreme Court recognized R. v. S. (R.D.),  3 S.C.R. 484). It is for that reason, rather than out of a symbolic if not aesthetic concern with the appearance of the judiciary, that it is important that there be a diversity of backgrounds among the judges. But background, at if understood in terms of characteristics such as gender or race is not the only thing that shapes the judges’ views. So do professional experiences, for example ― commercial lawyers, prosecutors, and academics live in somewhat different worlds, with somewhat different habits of thought, which to some extent shape the way they approach adjudication.
And, to come back to where I began this post, ideology is one of the things that shape judicial thinking ― and, because of that it is actually a good thing that there are a judges of different ideological backgrounds. The lessons of Jonathan Haidt and his colleagues’ work on the mischiefs of ideological uniformity, about which I recently wrote over at the National Magazine’s blog, are relevant to courts as well as to the social sciences. Precisely because ideology affects adjudication, more ideologically diverse courts will produce better argued decisions, in the same way, as prof. Haidt et al. show, as an ideologically diverse academy will produce more solid research.
It is also important to keep in mind that individual judges, especially at the appellate level, do not so much decide as argue. A judge whose votes are driven by his ideology alone and who fails to justify them in any sort of persuasive way will have no influence on his colleagues. His presence on the bench will be regrettable, but mostly harmless. (The same goes, of course, for a judge who fails to justify her votes otherwise than by reference to a party’s gender, etc.) “Conservative” academics are in rather short supply in Canada. They won’t just take over the judiciary. If Messrs. Fine and Boisvert are so concerned about them, is it because they worry that they will persuade their colleagues? Actually, that’s not terribly likely to happen. What is more probable, however, is that by scrutinizing their colleagues’ reasoning and calling out unwarranted assumptions and weak arguments adduced to justify generally accepted but actually unsupported views, they will stop some of the excesses of groupthink, and generally make for better law.
It would of course be wrong to assess potential judges only on their background characteristics, whether it is to appoint them or to reject them on that basis. And it is similarly wrong ― one might perhaps even speak of “Americanization” ― to assess them by their ability to pass some ideological litmus test. Judicial diversity is important and desirable ― not only diversity of gender and ethnicity, but also of experience and of thought, a diversity of diversities, if you will. That’s a lesson both the Harper government and for some of its critics.