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Diversity on the Bench: Not Just an American Problem

Americans who want greater diversity on the bench should consider Canada’s recent changes in judicial selection, which have sparked an important conversation about how judges reach its highest court.

March 25, 2017

White males make up a mere 30 percent of the U.S. population, but nearly 60 percent of state court judges, according to a recent study by the American Constitution Society. This stark lack of judicial diversity is a problem across the globe, however, not just here at home. Americans who want greater diversity on the bench should consider Canada’s recent changes in judicial selection, which have sparked an important conversation about how judges reach its highest court.

In August 2016, Canadian Prime Minister Justin Trudeau introduced  a new process for selecting justices for the Supreme Court. Trudeau used the system two months later, appointing Justice Malcolm Rowe. At the center of this process is a newly formed Independent Advisory Board composed of judges, lawyers, and legal scholars selected by legal groups and the minister of justice — similar to judicial nominating commissions that are used by many states here in America. The Canadian Advisory Board members are responsible for setting the criteria used for selecting judges, reviewing applications for court vacancies, recommending applicants, and discussing their decisions with Parliament. (The commission’s recommendations are strictly advisory and do not bind the prime minister.)           

Trudeau explained that his new system of judicial selection aimed to decrease the influence of politics in the decision-making process, create more transparency, and increase diversity on the bench. Additionally, Trudeau said he hopes these new changes will create a court that is “gender-balanced and reflects the diversity of members of Canadian society.”

Indeed, while the Canadian Supreme Court has historically included justices from different geographic regions in the country, its record of achieving other diversity measures is checkered at best. Between 2009 and 2012, 98 of 100 federal judges appointed in Canada were white. Lorne Sossin, a law professor and dean of Osgoode Hall Law School at York University, best summed up the current issues when he said,  “Canada has never had a Supreme Court justice who is Indigenous, who is from a visible minority, who has a religious background that is not Christian or Jewish, or who self-identifies as other than heterosexual. Suffice it to say, the Supreme Court of 2016 simply does not reflect the Canada of 2016 — not even approximately.”

While Trudeau has elevated diversity as a key issue in reforming Canada’s judicial selection system, Sossin and other critics  note the new system remains ill-suited to achieve a more representative bench.

For example, Sossin argues that the requirement that justices be fluent in English and French — Canada’s two official languages — creates additional obstacles for diverse candidates. This new prerequisite “assumes (without justification) that a candidate who speaks English and French should be preferred over a candidate who speaks English and one of Canada’s Indigenous languages, and that a candidate who is bilingual and White should be preferred over one who is unilingual but reflects an ethnic community that is otherwise under-represented on the Court,” he states.

Indigenous group leaders have also decried the new bilingual requirement, pointing out that none of the current members of the Supreme Court are bilingual and that English and French were not the only languages spoken at Canada’s founding. Perry Bellegarde, national chief of the Assembly of First Nations, also said that an indigenous justice would “bring that other perspective that it is not only common law and civil law — you have indigenous law, First Nations law that has to be incorporated into the justice system.”

Other critics have highlighted how the typical career route judges take before landing on the Supreme Court, and a lack of diversity in the pool of candidates from which justices are drawn, hinders the ultimate goal of increasing diversity on the bench.

“For the most part, our Supreme Court justices are elevated from the provincial Courts of Appeal. And the provincial Court of Appeal judges are often elevated from the provincial trial courts,” explains Rajan Agarwal, president of the South Asian Bar Association of Toronto. “Those lower courts are hugely non-diverse. The real thing we want to see is the feeder system, the pool, get better with more diverse candidates because then the prime minister has a more diverse set of choices.”

Trudeau’s first appointment under the new process proves the critics’ concerns valid. In October, the prime minister picked Malcolm Rowe — an impeccably qualified white male lower court judge — from a list of 31 applicants to the Independent Commission. Agarwal praised Rowe, but called this appointment “a missed opportunity.”

Agarwal suggests three crucial steps the prime minister can take going forward to more effectively improve diversity in Canada’s courts. First, Trudeau should publish statistics of the applicants’ demographics. Was the applicant pool itself diverse? If not, what can be done to make that pool more representative of Canada’s population? Second, Trudeau should more closely examine the bilingual requirement to ensure it does not disproportionately disqualify aboriginal and immigrant communities. Finally, Trudeau should make more representative appointments to the lower courts, the courts with which most Canadians are more likely to interact.

Canada’s challenges in achieving a diverse bench echo similar problems in the United States.  The American Constitution Society’s report found that although women make up 50 percent of law school populations, they comprise only 38 percent of the legal profession and just 30 percent of state judges overall. No state has a representative number of female judges based on its population. The racial statistics are just as stark. Despite being 38 percent of the total population, the report found that people of color make up only 20 percent of state court judges.

Certain qualification requirements for judges can serve as a barrier to diversity here at home as well. In the United States, some states mandate that judges satisfy various residency, voting, and licensing requirements that are seen as hindrances by many racial minorities and women seeking to break into higher levels of the law.         

Since the changes to the Canadian system are so new — the second Supreme Court appointment under the new process won’t occur until fall 2018 — its full impact remains to be seen. However, the ongoing discourse illustrates many of our own challenges in achieving a bench that looks like America — and highlights the importance of diversity in judicial selection reform.

(Image: Norman Maddeaux)