With Justice Cromwell’s surprise decision to resign this September, the Federal Liberals promising reform of Supreme Court appointments, and recent media discussion around the political edges of judicial appointments, The Law Society of BC yesterday offered recommendations to Justice Minister Jody Wilson-Raybould promoting four core principles for the judicial appointment process. They are: “transparency; judicial independence; merit and diversity; and public participation.”
The July 18, 2016 announcement references the report from a recently formed subcommittee of the Law Society of BC’s Rule of Law and Lawyer Independence Advisory Committee, titled “Principles for the Appointment of Justices to the Supreme Court of Canada.” That report, written in June, goes a bit deeper into the four principles:
- Transparency — i.e. a written, publicly available policy for the appointment of Justices.
- Judicial independence — this is somewhat obliquely named here (given that no actual fetters hamper an appointed justice’s independence), but it could be seen as a nod to the risk that the “wrong” process could lend the appearance of an appointee being fettered… i.e. by political allegiance.
- Merit and diversity — the report talks about both, but strictly in this order. As in, not diversity before merit—see the debate—but rather clear, explicit, objective, written standards of merit that can be measured.
- Public participation — or some degree of it, albeit at the discretion of the executive branch.
For reference, here are the Federal Government’s own official platform points (from pages 30-31) on Supreme Court Appointments (with emphasis added):
We will make the Supreme Court appointment process more transparent.
[…] We will work with all parties in the House of Commons to ensure that the process of appointing Supreme Court Justices is transparent, inclusive, and accountable to Canadians.
We will ensure that the process involves proper consultation with authorities throughout the legal profession, including the provinces, provincial law societies, provincial appellate and superior courts, and the Chief Justice of the Supreme Court. We will ensure that all those appointed to the Supreme Court are functionally bilingual.
One can see where the Law Society of BC’s own recommendations echo the principles hinted at in the platform, especially principles #1 and #4 (transparency and public participation).
But what’s also visible is the added emphasis on judicial independence plus the comparatively lukewarm shoulder pat that diversity receives after the strong embrace of merit— the “primary criterion”.
This is a notable emphasis.
Regarding recent judicial appointments of members from minority groups Alberta law professor Eric Adams was interviewed in the Globe and Mail:
“There is more than simply pure merit that’s at play [in recent appointments]. These aren’t appointments that are being made without consideration for candidates’ previous ideologies. And that’s not a criticism – I want to make that clear. In exercising its power of appointment, governments look for judges who, yes, are talented and fair-minded, but also align with the particular worldview of the government of the day.”
The emphasis on merit over diversity in the report seems valid for obvious reasons (e.g. bona fide occupational requirement for being a top judge)—but it doesn’t hurt to deconstruct “merit” as a term, at least a little.
The report suggests the underlying characteristics of merit are:
- intellectual ability,
- work ethic,
- interpersonal skills, and
- sound judgment
Some of these characteristics sound objectively measurable, but not all. Take integrity, for instance, which may have broadly objective parameters but which can be a profoundly personal, culturally specific and therefore elastic concept. Perhaps the same can be said of ‘sound judgment”. Who shall take the measure of these traits? Will it be the working poor? The privileged and affluent? Those raised in immigrant homes? To whose norms is that scale calibrated? And what, if not diversity, will temper the affinity bias of those who take measure?
The following excerpt from this ABA piece is as applicable in the context of judicial appointments as it is in the legal profession generally:
Humans are hardwired to be biased. It is human nature to seek the company of others who fall within our “comfort zone” and to flee from those who trigger our “danger detectors.” Our positive response to people who are similar to us is known as “affinity” bias.
As lawyers, we pride ourselves on objectivity. We find it hard to accept that our unconscious biases contribute to the attrition rates of minority and women lawyers in the workplace and that bias plays any role in our interactions with diverse attorneys. We are certainly too enlightened for that. But research has shown that everyone has biases; it is just a part of who we are.
Our ideas around merit are to some extent the product of our biases, as influenced by culture, family, peers, etc. With this in mind, how can we approach conversations about merit without a parallel approach towards themes of diversity and privilege. Is there a way to incorporate diversity into our notions of merit? Is a candidate with slick personal skills any more meritorious than a candidate attuned to the unique challenges of a diversity group?
– Find Nate Russell on Twitter @nrusse