Women on the Bench

The Globe and Mail reported recently (November 12, 2011) that only 30% of judges appointed by the Conservative government since 2006 have been women. (So far in 2011 just under 20% of appointments have been women.) This is a significant decrease from the last year of the Liberal government when 40% of their judicial appointments were women. A spokesperson for the Justice Department stated that the number of appointments reflects the number of female applicants.

In the past, it has been argued that the number of female federally appointed judges (32% in total) has been similar to the percentage of women in the legal profession. However, with women now forming approximately 37% of the lawyers in Canada, the percentage of female judges is falling quickly behind not only the profession but also what many Canadians expect – a judiciary that reflects Canadian reality and not just the legal profession.

Some argue correctly, that the lower judicial percentage reflects the smaller number of women with sufficient seniority to be eligible for appointment to the bench. The majority of women lawyers are clustered closer to the junior end of their careers. However, the number of senior women lawyers in private practice is increasing so slowly that it will be a long time to wait for greater female judicial representation if appointments stay locked below the percentage of women in the practice of law.

The challenge with women reaching parity with men in the legal profession is that despite graduating slightly more women than men from law school since the mid-90’s, women leave the profession at twice the rate as men. This attrition starts around the fifth year of call. As most students graduate from law school in their late 20’s or even their early 30’s, women hit their prime child bearing years at the same time as their careers require longer hours in order to become a partner.

After five years of practice, lawyers start to move into the senior associate ranks and must seriously start to build their book of business to become eligible for partnership. This requires time spent in the evenings sitting on boards or entertaining prospective clients. Firms look more closely at whether the senior associate is consistently hitting their annual targets. This can require longer hours into the evening and on weekends to make sure that billings are high.

For many women, all of this extra work comes at precisely the wrong time in their family life. While partnership is often delayed to accommodate maternity leaves, many women do not want a life of such unrelenting demands both at work and at home. Many opt out of private practice and move in-house. With the exception of working for the Crown or the Justice Department, in-house lawyers are rarely appointed to the bench.

Another challenge is that federally appointed trial judges must travel around the province to sit in smaller communities for a week and sometimes longer at a time. If a woman has young children (not uncommon for women lawyers who often have their children later in life in order to establish their careers) travelling away from home for such extended periods is simply not an option. For this reason, many women prefer to apply to the provincial bench where travelling to different courthouses does not usually require an overnight stay.

In the recent annual report from the National Association of Women Lawyers in the US (Sixth Annual National Survey on Retention and Promotion of Women in Law Firms) comes the discouraging news that women for the first time in the six years of this survey are actually a decreasing percentage of lawyers in big firms.

In addition, women increasingly hold positions (staff attorneys, counsel or income partners) where they are not eligible to become equity partners and participate in firm leadership. In the US only 15% of equity partners are women. (In Canada, it is slightly higher.) Similarly, the number of women entering law schools in the US is starting to decline with only 46% of all law school grads being female. (Again, in Canada women form more than 50% of law school students and in Ontario it is as high as 60%.)

Prior to 1975, when women started to attend law school in greater numbers, women lawyers formed less that 5% of the legal profession. Some 36 years later in Canada, women now make up approximately 37% of the profession – a growth rate of less than 1% a year. If this growth rate continues – not a certainty if women continue to leave private practice at significant rates after five years call – then it will be at least another 15 years before the profession reaches parity between men and women. It will take much longer for women to advance beyond their current 26% of lawyers in private practice. If trends in the US of fewer women entering law school start to appear in Canada, this will also impact the long-term pool of women maturing into seasoned lawyers available for the bench.

The challenge for the government is that society is demanding a court that reflects the population both with respect to gender and other diversity criteria such as ethnic background. No one is suggesting that priority be given to these demographic criteria over competency. However, ways must be found to support women to stay in private practice longer so that sufficient senior women are eligible for judicial appointments. Equally important, the government must look seriously at the many highly competent women who are applying for judicial appointment and move towards a court that reflects the talents and experience of both genders.