There has been no shortage of press on the conduct and competence of Canadian judges lately. Headlines abound about “Alberta judge who asked sex assault complainant about keeping her knees closed”, the “Hamilton judge who wore Trump hat” and the “Nova Scotia judge under fire for claiming ‘a drunk can consent’” So notorious are concerns about Canadian judges that the comedy show This Hour has 22 Minutes ran a sketch about neighbours being scared when a judge moves in down the street.
More recently, an article ran in the Globe and Mail which appears to suggest another, largely unexplored, reason to worry about the country’s judiciary: all those damn women being appointed!
The article, titled Liberals reshape judicial bench with appointments of women, observes:
A year and a half after taking office, the government has appointed 56 judges, of whom 33 are women – 59 per cent. Yet women make up only 42 per cent of the 795 people who have applied to be judges since the Liberals put in place a new appointment process in October.
The article then explores how these statistics are leading “some in the legal community [to] question the government’s commitment to the merit principle in appointing judges to federally appointed courts.” Among the concerns voiced in the article are worries about a “quota system”, having “the best people for the job”, “too much emphasis on gender” and potentially “breed[ing] contempt for the judiciary.”
Scrutinizing how judges are appointed and who is appointed is an important and valid exercise. But, surely, scrutiny and critique needs to be solidly evidence-based. One possible, if not probable, take-away from this article is that there are reasons to be concerned about the quality of recent female appointees. Even putting aside the premise – which should be uncontroversial by now – that having a representative judiciary is itself a substantive good, the article fails to provide any evidence that recent female appointees are somehow less meritorious than male applicants who were not appointed. I’m guessing that no such evidence exists.
To be fair, the article takes pains to quote members of the legal community who “say the government is doing the right thing”, including my colleague Professor Rosemary Cairns Way who is an expert on the question of diversity on federally appointed courts.
Notwithstanding this even-handedness, the article, at least on my read, leaves the question lingering “who are these women judges anyways and are they really good enough?” Indeed, even one of the individuals quoted in support of the recent developments states, “I would hope that those are qualified candidates and that the fact that they’re women is just one consideration, albeit important.”
It’s just one article and an overall reasonable one at that. So what is the problem? An onus is placed on female judges to prove that they deserve to be on the bench and, indeed, a suggestion is made that they are somehow less qualified to be there than their male counterparts. A de facto suspect class. It’s undermining women in a space where women already face systemic barriers to success. Not only is this unfair, it borders on galling given the recent spate of demonstrated incompetence and misconduct by a handful of sitting male judges.
By all means, let’s talk about judicial appointments and how the process can be improved. But let’s be careful not to do so in a way that risks feeding into unsubstantiated conjecture and outdated stereotypes.