This document summarizes diversity in the judiciaries of the US, UK, and Canada based on a student paper. It finds that while all three countries advocate for diversity, it has not been fully achieved. The US and UK judiciaries remain predominantly white and male. Canada has better regional representation but lacks diversity in other areas. Barriers to diversity include a lack of confidence from women and minorities that they could be appointed, as well as potential hostility from interview panels. The document concludes that achieving diversity through the appointment of women and minorities leads to greater equality and improved decision making.
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Introduction
Most countries advocate for diversity in most sectors of the economy or rather in various
occupational positions but diversity in the judiciary seems not to be encouraged. Diversity, not
only in the judiciary, brings about equality and improves on the quality of decision making
(Hunter, 2015). Particularly, diversity in the judiciary encourages equality and leads to improved
quality of decision making.
In countries such as UK, US and Canada, diversity in the judiciary has not been fully
achieved. US for example, is one of the countries more diverse than ever, but its judicial system,
comprising of the state judges in not diverse. Most of the Americans who enter state court rooms
normally find that white male have the highest proportion of representation. Infact, after
increasing diversity I law schools, diversity in the judiciary is still a problem in US. In Canada,
diversity in as far as regional representation is concerned has been highly exercised. However,
since a lot of focus has been placed on regional representation as a form of diversity in Canada,
other forms of diversity have been overlooked. Otherwise, compared to US, Canada’s judicial
system is much more diverse. In the UK, diversity is not better off since a lot of significant
improvements have been observed recently.
Since diversity matters, it is important that appeal and supreme courts in most countries
consider minorities and women when making judicial appointments. This essay therefore focuses
on diversity in US, UK and Canada, and seeks to establish whether the courts in the above
mentioned countries are diverse enough and whether diversity is being embraced.
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Diversity in US
In judiciaries of many countries, diversity matters a lot. Diversity among judges with
respect to gender and race normally affect court decisions. However, it is worth noting to
comprehend that diversity doesn’t always give a guarantee to specific outcomes. A more diverse
judiciary that is made up of women and other minorities is better off in terms of benefits as
compared to a judicial system which is made up of only white men. A judiciary that is more
diverse is socially representative and is highly accepted by heterogeneous populations as very
legitimate (Morgenstern, 2016). It can also be argued that diversity impacts on decision making.
The reasoning is that a time, women judges as well as minority judges can have different views
and perspectives, different from those of white male judges. Additionally, women judges as well
as minority judges might a time be better placed as far as considering gender and race issues is
concerned.
However, diversity is not better placed in US supreme and judicial courts. Therefore in
this respect, because of the kind of underrepresentation of women and minorities judges as
compared to their white male counterparts who are over represented, I will argue out and
emphasize the importance of diversity in courts, with reference to US courts.
Why does judicial diversity matter for law? I will illustrate this issue with regard to the US
Supreme Court and provide background on selected countries’ judicial diversity before
examining the issue more thoroughly in subsequent sections.
Why practice diversity
Judiciary diversity debate shave been very common especially in US supreme courts. As
far as diversity in the judiciary is concerned; US supreme courts have significantly changed,
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considering how it was previously prior 1950s. Infact, to demonstrate this king of change
experienced in the US judiciary, in the year 1967, Thurgood Marshall was appointed s the first
African-American justice. Infact, as at the year 2014, Greenhouse (2015), notes that the
membership of US Supreme Court was made up of a slight majority of men as compared to men.
Infact, he notes that out of nine judges, five were men and the remaining four were women, form
all races. In the United States, it has been observes that among the elected presidents, democratic
presidents have been known to observe diversity because they have always factored in racial and
gender considerations when making judicial nominations.
However, whereas the republican presidents have also been factoring in racial and gender
considerations in their judicial appointments, they have been doing so when trying to court and
woo female and minority voters. (20). However, there is controversy as far as the use of such
criteria is concerned. Barack Obama, rather the considering diversity, considers “empathy “and
“keen understanding of how the law affects the daily lives of America citizens”. (Baker, 2010)
As observed by Colin, M., Joseph, F. & Michael, D. (2015), there is less representation of
women and minorities in US and UK judicial systems, as compared to white men who are over
represented.
When diversity is practiced in supreme courts and judicial systems, transparency is
achieved. I hold to the belief that law should be free from any universal external forces like race
and gender, if equity is to be exercised. Inorder to improve on diversity in the US judicial
systems, it is important that important policies be put in place, policies that foster diversity.
Infact, just encouraging and increasing the number of female e enrollments into law schools
won’t help achieve diversity in the US courts.
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Diversity in Canada
In Canada, judges are appointed by the government. Similarly, the trial and appellate
judges, the Supreme Court judges and the federal judges are appointed by the federal
government. In Canada, the judges of the provincial, courts are appointed by the provincial
government. In Canada, judges enjoy security of tenure because ideally, judges are supposed to
be independent and must be viewed by the members of the general public as independent. It is
important that judges appointed to serve in the judicial system are of high merit and integrity
because it is difficult to ideally remove judges from office for any other reason other than
incapacity and misconduct. Once a judge of high integrity and merit is appointed, he will be in
apposition to serve for long periods and consequently invaluably touch a lot of lives. The
decisions made by judges have serious and detrimental consequences for individuals, for the
general economy and for the general governance in a country.
However, a part for merit and integrity considerations when appointing judges, it is
important that diversity is also factored in. Ideally, the appointment of judges to the bench should
be a reflection of the diversity of the people and the society they are mandated to judge. Canada
has a proportion of 36% of women judges on the judicial bench. Canada is viewed as the leading
country in the appointment of women judges. However, the question is why it that the percentage
is not infact higher than 36% is. (“Federal judicial appointments - number of federally appointed
judges in Canada,” 2015) Canada has poor representation of minority and indigenous people in
the judiciary. Infact, in Canada finding suitable candidates to serve in the judiciary has been a
challenge due to the fact that minorities and indigenous people are not considered who would
otherwise be more qualified and competent to serve in the judiciary. However, with the current
trends in judicial reforms, this is at last changing and more of this should be expected in decades
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to come because currently, Canada’s government has decided to reform the judiciary and review
the judicial appointment processes.
Representation in Canada
In Canada, the Supreme Court is very distinct among other courts because appointment to
these courts is based on the principles of representation. Infact, in the supreme court Act of
Canada, a policy has been put to ensure that at least three judges appointed to the must be from
Quebec. However, whereas the adoption of this policy is to ensure that there are enough and
sufficient judges conversant with civil law in Quebec, it seems to serve other purposes which,
among others, is to ensure proper representation of the minority in the Supreme Court. The
Canadian government has adequately recognized the principle of representation by ensuring that
out of the nine judges appointed to serve in the judiciary, three of them must come from Quebec.
Additionally, apart from three judges from Quebec, the Canadian government has also made sure
that one judge is from Ontario, One from Atlantic Provinces, one judge from British Columbia
ad one judge from western provinces.
I believe that as compared to UK and US, Canadian courts are distinctively homogenous
as a far as consideration of diversity is concerned. I disagree with Rackley‘s (2011) assertion
that as compared to UK and US, Canada lags behind is as far as implementation of diversity is
concerned. In concur with the sentiments put across by Hasan & Siddiqui (2016) that in Canada,
women and minority groups have received poor representation because they have never been
appointed, particularly to the supreme courts. I however believe that, whereas regional
representation may have been considered in Canada, other forms of representation may have
received very low levels of representation.
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Diversity in UK
The UK is making significant progress in relation to diversity considerations when
making judicial appointments. Infact, a report was recently released showing the extent of
diversity in the UK courts. The results of the report showed that Of the 308 recommendations for
appointment to the judiciary, 45 % were women, meaning that 140 women were recommended
for appointment out of the possible 308 recommendations (“Judicial diversity statistics 2016
judicial office statistics bulletin,” 2016). Additionally, the report indicates that Blacke and Ethnic
Minority (BAME) candidates contributed 16% of applications and 9% of all recommendations
for appointment. The report indicates that most of the candidates for the district judge selection
process did not complete the diversity data and therefore the data cannot supply much
information thereby limiting conclusions to be drawn (“Judicial diversity statistics 2016 judicial
office statistics bulletin,” 2016).There have been criticisms in the UK that it will take another 50
years for equality to be achieved, but those criticisms were corrected by lord Thomas of
Cwmgierdd who pointed out that the UK is making significant improvements in relation to
diversity in the judiciary and that diversity is what is needed in the British courts inorder to
preserve public confidence in justice.
I believe in diversity because diversity brings about equality and improves on the quality
of court decisions since in brings bout different ideas from different people including women and
minorities, as opposed to decisions made in cases where courts are made up of only white male
judges. I concur with sentiments echoed by McIntyre, Farmer, & Deacon (2015) that diversity in
the judiciary creates a platform where women are engaged in judicial matters besides creating
equal representation. However, through previously there have been problems with diversity in
the UK courts; there have been significant improvements as indicated by judicial statistics
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Barriers to diversity
I believe it is important to consider diversity in judicial systems. There are a number of
issues that act as barriers to diversity in most courts. Firstly, one of the barriers is that there is a
notion amongst women and minorities that applying for judicial openings would always yield no
results. The problem of pessimism is one of the things that make it difficult for the judiciary and
the bench to get diversified. Most of the applicants who are women and minorities feel that they
are not “Judicial material” (Richmond & Deputy President of The Supreme Court, 2014) .
Another obstacle to diversity in the courts is the hostility of the interviewing panel. Most
of the judges interviewing have some form of stereotypes regarding how a judge should look
like. Therefore, the harshness of the panelists makes a lot of potential women and minority
applicants shy away, making representation in the judiciary difficult.
Another challenge in most courts is that once minority judges get appointed, they get
problems getting reelection again because most of them become targeted in the election
campaign later on possibly because majority of them lack the base to enable them get re
appointed.
Conclusion.
If equality and quality of court decisions is to be achieved, courts in most countries
ought to be diverse. Diversity involves allowing women and minorities to be part of the team
forming the bench of judges in courts. It is evident from the above essay that in most countries
particularly US, Canada and UK have not achieved diversity in their judicial systems. However,
of the three countries, Canadian judicial system is much more diverse that both UK and US. I
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therefore conclude by backing the push for diversity is most judicial systems because diversity in
the judicial system leads to equality besides also improving on the quality of court decisions.
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Reference
Baker, P. (2010). In Court nominees, is Obama looking for empathy by another name? U.S. /
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Federal judicial appointments - number of federally appointed judges in Canada. (2015, June 17).
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nominations/judges-juges-eng.aspx
Greenhouse, L. (2015, December 24). The Supreme Court’s diversity dilemma. The Opinion
Pages. Retrieved from http://www.nytimes.com/2015/12/24/opinion/the-supreme-courts-
diversity-dilemma.html?_r=0
Hasan, N. R., & Siddiqui, F. (2016, March 28). Time to name an aboriginal justice to the
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2016-2.pdf
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compared: The journal online. Retrieved December 3, 2016, from
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