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Appointment of New Supreme Court Justice – A Missed Opportunity Rosemary Hunter for the Equal Justices Initiative After an inordinately long selection process, the appointment of Sir John Dyson to the vacant position on the Supreme Court was finally announced on 23 March 2010. While there is no doubt that he is eminently qualified for the position, this was nevertheless a missed opportunity to appoint a second woman to the Supreme Court. Lady Hale remains the only woman ever to have been appointed to the Court and to its predecessor, the House of Lords. Despite all the energy devoted and the lip service paid in recent years to the perceived need for a more diverse judiciary for England and Wales – from the establishment of the Judicial Appointments Commission to, most recently, the report of the Lord Chancellor’s Advisory Panel on Judicial Diversity chaired by Baroness Neuberger – there remains little to show for it in the way of concrete change. In comparison with other common law jurisdictions, the UK has performed poorly and lags well behind in achieving gender parity on its highest court. Four of the nine members of the Supreme Court of Canada, three of the seven judges of the High Court of Australia, two of the nine justices of the United States Supreme Court and one of the five members of the Supreme Court of New Zealand are women, compared to only one of the twelve members of the UK Supreme Court. The Chief Justices of both Canada and New Zealand are women. The UK Supreme Court also lacks the racial, ethnic and sexual diversity of these other top courts. The United States Supreme Court includes a Black justice and justices from Italian and Latina backgrounds. The membership of the High Court of Australia has for a number of years included high profile gay judges, while on the Canadian Supreme Court website, Justice Rosalie Silberman Abella describes herself as “The first Jewish woman appointed to the Supreme Court of Canada”. By contrast, in the case of the UK Supreme Court, the standardised image of the judge as straight white male is barely disturbed. One thing that has become clear during the course of Sir John Dyson’s appointment is that Supreme Court vacancies will be filled only from among the current members of the Court of Appeal. It is well known that Jonathan Sumption QC was a candidate for the appointment, but withdrew his candidacy as a result – direct or indirect – of opposition from senior judges, who strongly objected to “leapfrogging” by an applicant without full‐time judicial experience.1 Yet, the Constitutional Reform Act 2005 expressly provides for the possibility of direct appointments from lawyers of 15 or more years’ experience, precisely in order to facilitate the achievement of greater judicial diversity. 1
See the series of articles by Frances Gibb in the Times Online: 15 October 2009, 4 February 2010, 25 March 2010. 2
To be sure, the appointment of Jonathan Sumption would not have advanced the aim of greater judicial diversity any further than has the appointment of Sir John Dyson. But the point is one of principle. The backlash against Sumption’s candidacy is likely to have buried the possibility of any direct appointments for the foreseeable future. So we find ourselves once again with a less than transparent judicial appointment process, in which criteria other than those formally advertised are applied. As Professor Gary Slapper has pointed out, “If legislators had wanted to require someone to have served in the High Court or Court of Appeal, they would have inserted that in the 2005 Act”.2 Moreover, artificially narrowing the field of candidates only to those who have already earned promotion to the Court of Appeal operates in much the same way as ‘secret soundings’ – that is, to guarantee reproduction of the traditional incumbents of senior judicial posts – the very opposite of diversity. If the pool of candidates considered eligible for future appointments to the Supreme Court is constituted by current judges of the Court of Appeal, then that pool is not only very small, but very homogeneous. Only three women currently sit on the Court of Appeal, together with one openly gay man. None of the members of the Court of Appeal are from minority racial or ethnical backgrounds. In turn, the eligible candidate pool for the Court of Appeal – current members of the High Court – is hardly a group one could describe as diverse. If the High Court and the Court of Appeal contain all of the candidates for Supreme Court appointments for years to come, then the chances of seeing more non‐traditional appointments to the Supreme Court any time soon are slim indeed. On average, the current members of the Supreme Court served on the High Court and the Court of Appeal for 12 years before their appointment to the House of Lords or the Supreme Court, although the time served is getting longer – the three most recent Supreme Court appointees all joined the High Court bench in 1993, and so served for 16‐17 years before reaching the highest court. At this rate, current High Court and Court of Appeal judges will have a monopoly on Supreme Court appointments until at least 2020‐2025. To be fair, the current judges of the Supreme Courts of the United States, Canada and New Zealand and of the High Court of Australia all held lower level judicial appointments prior to their elevation to their country’s highest court – with the exception of Canadian Supreme Court Justice William Binnie, who was appointed directly from the Bar to the Supreme Court in 1998. But in these other jurisdictions, the judicial hierarchy is neither so rigid nor contains so many levels of ‘progression’ as in England and Wales. In Australia, for example, neither the Federal Court nor most State court jurisdictions have separate Courts of Appeal, so appointment to the Federal Court or to a State Supreme Court can be a direct precursor to High Court appointment. In the United States, while all current Supreme Court justices served on the federal Court of Appeals, only one – interestingly, the most recent appointment, Justice Sonia 2
Quoted in Gibb, ibid, 25 March 2010. 3
Sotomayor – also served on the lower level federal District Court. The remainder were appointed directly from legal practice – often combined with academia – to the Court of Appeals. Similarly, several of the Canadian Supreme Court justices were appointed directly to a Provincial Court of Appeal before joining the Supreme Court. Interestingly again, the four women on the Canadian Supreme Court all served more extensive judicial apprenticeships. This highlights a particular feature of non‐traditional appointments – that there is a tendency to try such appointees out for some time in more junior judicial roles before deciding they are ‘safe’ for senior appointment. While this tendency is generally to be regretted, it does also mean that the women on the highest courts in other common law jurisdictions are not usually ‘high flyers’ who have been ‘fast tracked’ into senior appointments. Rather they have had – as is too often the case – to work harder than their male counterparts to prove their credentials. But if this is so, why has even this pattern not been replicated in England and Wales? All of these countries experienced the same influx of women into law schools in the 1970s and 1980s. In other jurisdictions, this has translated, slowly, into reasonable proportions of women in the lower ranks of the judiciary, from which more senior appointment may be made. But not in England and Wales. Only District Judges here include a reasonable proportion of women (around 25%) – but these are non‐career positions. All of this must be very discouraging for young women lawyers (and for men from non‐
traditional backgrounds) who aspire to a judicial career. If the new government maintains any kind of a serious commitment to judicial diversity, much more concerted measures are required. Serious government commitment has made a difference in other jurisdictions. In the United States, for example, President Jimmy Carter made a point of nominating women for federal judicial appointments. According to Professor Elaine Martin, whereas only eight women had ever before sat on the federal bench, “The 40 women appointed by Carter were the opening wedge in a drive that succeeded in breaching the wall of prejudice that had prevented women from attaining the federal bench in any meaningful numbers for nearly 200 years.”3 These women were not unmeritorious or unqualified, they were just overlooked. Similarly, in the Australian States of Victoria and Queensland, Attorneys‐General determined to appoint as many qualified women as qualified men have transformed the gender profile of their State judiciaries. It is notable, however, that in these jurisdictions, the power to make nominations and appointments remains with the relevant executive. In England and Wales, on the other hand, nomination functions have been handed over to an independent agency. While the theory behind the establishment of the Judicial Appointments Commission might have been admirable – to make the appointment process open and transparent, to 3
Elaine Martin, ‘US Women Federal Court Judges Appointed by President Carter’ (2009) 17 Feminist Legal Studies 43, 43‐44. 4
encourage applications from as wide a range of qualified candidates as possible – the results have been disappointing – not least because of the continuing application of “non‐statutory” criteria such as a certain amount of previous judicial experience of the right kind, and the approval of the senior judiciary. Without the power to make nominations, however, the new government should at least be setting progressive targets for the Judicial Appointments Commission to meet. That would certainly concentrate its attention on finding meritorious candidates from diverse backgrounds, and on the fact that the operative definition of ‘merit’ must incorporate difference rather than imposing a homogenising norm. Why does judicial diversity matter? It matters that the ambitions of women and non‐
traditional entrants to the legal profession not be thwarted – and, indeed, that their horizons not be limited to such an extent that they do not dare or do not bother to form ambitions in the first place. It matters if lawyers who aspire to judicial office do not in fact have equal opportunities to attain it. It matters that the judiciary bears a resemblance to its professional base, rather than an ever sharper divide emerging between the ‘new’ profession – feminised and more racially diverse – and the historically dominant professional group which continues to reserve senior positions for itself. More generally, it matters that the judiciary bears some resemblance to the society that it serves. So long as it does not do so, it will increasingly struggle for legitimacy. And it matters for the quality of justice delivered. An eminently wise, qualified, high calibre but homogeneous judiciary cannot judge as well as one that is wise, qualified and high calibre but that also brings a diverse range of knowledge and experience to bear on the judicial task. Let’s hope future opportunities are not so badly missed. ____________________________ Rosemary Hunter is a Professor of Law at the University of Kent. The Equal Justices Initiative (EJI) was established in 2009 to promote the equal participation of men and women in the judiciary in England and Wales by 2015. The EJI serves as a forum for bringing together academics, practitioners, judges and policy‐
makers to work towards gender parity on the bench. For more information visit: http://www.law.qmul.ac.uk/eji/index.html