Column

Beware the Binders Full of Women (Judges)!

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.

Comments

  1. The article sounds like the same old argument that considering any factor except “pure” legal ability (+ temperament + judgment) undermines the merit principle. I had thought that such arguments had been debunked a lot of years ago, when there are other legitimate criteria for appointment, diversity being the main one. There are many facets to ‘merit’.

    The more tendentious but still correct response is that being male was an unstated advantage in appointment until relatively recently; correcting for that may make it less likely that a male will be appointed when compared to an otherwise equally qualified female, and we males just have to put up with that, at least for a while.

    Ditto for other potential appointees who would contribute to a suitably diverse bench.

  2. As an experienced litigant (in person – LIP the Brits call us) I did pay some attention to the gender of the adjudicators (including tribunal members) with whom I had to contend starting in the year 2000. It wasn’t worth a lot of attention.

    I also purchased a copy of the book authored by Constance Backhouse (with some assistance by her sister) that incorporated the book written by Mrs. Elizabeth Bethune Campbell about her own (largely LIP) experiences back in the days when the justice system was run entirely by men.

    I think I’ve dealt with enough adjudicators to draw from that a reasonable conclusion. The gender balance went back and forth from action to action and the record currently found with just a single link to the CANLII database – https://www.canlii.org/en/bc/#search/jId=bc&sort=decisionDate&id=Budgell&origJId=bc – says I faced in those actions eleven female and eight male adjudicators.

    Imagine Elizabeth Bethune Campbell and I now sitting down together and comparing notes.

    I think she’d agree with me that the argument about gender balance is vastly overwrought.

  3. Malcolm Mercer

    It is at least curious that the response to an elevated proportion of women appointees is to suggest lack of “merit” when there was not a similar reaction to an elevated proportion of men appointees.

    John rightly points out that merit includes a number of facets including diversity. It is important that there be diverse perspectives on the bench reflecting our diverse society and that those before the courts can see society reflected in the courts.

    But even taking the narrow view of merit, it is difficult to see how appointing the top 10% of female applicants (and only the top 5% of male applicants) is some genuine debasement of merit.

    Leaving aside the prior history of appointments which could suggest a richer pool of women from which to choose, I doubt that there is really much difference between the top 5% and the top 10% on the question of merit. Our ability to assess merit, narrowly defined, is simply not that acute.

    Of course, there are some well qualified men who were not appointed as a result of the decisions made. But it is hard to see that these men were somehow genuinely more meritorious than the women who were appointed. And the difference, if any, is pretty thin.

    Assuming that merit narrowly defined can be exactly measured and that candidates can be accurately rank-ordered (none of which makes much sense to me), this is a dispute about the top 5 to 10% of candidates. The “top 5%” of both men and women were appointed. The next 5% of women, but not men, were appointed. Big deal.

    But the arithmetic isn’t the real point. What matters is that there is no legitimate reason to denigrate these women who are new appointees and there is good real to celebrate what they bring to the administration of justice.

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