Allan Richarz: A more diverse bench isn’t the answer

Nice to see that my analysis (Diversity among federal and provincial judges – Policy Options) is provoking some discussion and debate.

But I think for most advocates of greater diversity on the bench and public and private institutions more generally, the fundamental purpose is to encourage a greater diversity of life experiences and views to inform and improve decision-making.

We all have our implicit biases and assumptions. Judges are no exception, even if their training and decision-making (“slow thinking” to use Kahneman’s phrase) are designed to help them be more mindful of these biases.

It is not simply assuming that female, visible minority and indigenous judges will necessarily make different decisions than male, non-visible minority or non-indigenous judges, but that their different backgrounds may provide a different perspective to interpreting the law.

Moreover, the legitimacy of public institutions requires a reasonable correlation between the population and their representation in these institutions.

How would Richarz feel if the numbers were reversed with only 2.1 percent of federal judges being white?

So while I fully agree with Richarz that improved judicial diversity is not a panacea for over-representation in prison or other similar issues, this does not undermine the overall case for diversity:

A recent report by Policy Options magazine reveals that indigenous and minority representation on Canada’s judiciary registers in the low single digits. This has led to the predictable hue and cry over a “judiciary of whiteness” from assorted legal analysts cum race-baiters. The real problem, however, is not with a lack of minority representation on the bench, but with the patronizing and divisive assumption that having more minority judges will serve as a sort of panacea for certain racial groups’ over-representation in prison. The clamour for more minority appointments to the bench is simply a smokescreen for pushing broader political ends that will ultimately do nothing for the communities it purports to help.

There are a number of troubling assumptions underlying the contention that greater minority representation on the bench will result in more positive outcomes for minority defendants. The first seems to take as a given that, say, an African-Canadian judge will cut a black defendant slack based not on the law, nor on the facts of the case, nor on the judge’s legal experience, but on nothing more than a sense of racial solidarity. This would be unacceptable in any other contexts. A male judge acquitting a male defendant of sexual assault based on a wink-wink, nudge-nudge “you know how it is” would raise immeasurable howls of protest.

Such an approach also unfairly reduces minority judges to just that, a minority judge. Becoming a judge is no easy task. Never mind the long hours at law school, passing the bar exams, spending a decade or more as a practising lawyer and earning the recommendation of one’s peers; all that is thrown out the window when one is simply reduced to “the Asian judge” or “the black female judge.” Perhaps for activist lawyers who have built careers on sowing racial divisions such labels do not matter, but for minority lawyers simply wanting to work and be treated no differently from their white colleagues, being reduced to a mere token is undoubtedly patronizing and unfair.

Adding to this is the unfair denigration of the thousands of judges serving  across Canada. While it is certainly fair to note that the judiciary is somewhat “male, pale and stale,” it is quite another to conclude based on that that the judiciary is riddled with closet racists, homophobes and misogynists as a result.

None of this matters, of course, to activists who would simply reduce the legal profession and judiciary to its constituent elements of race and sex. Their end game, however, is not about greater equality or fairness or whatever other trendy legal cause célèbre arises; it is about their own power, self-aggrandizement and profit. The squeaky wheel gets the grease, but also the TV face time and lucrative government contracts.

Judges are not the victims in this instance. For better or for worse, they have largely insulated themselves from the slings and arrows of the rabble-rousers and society generally. Who suffers most is the communities activists purport to help. Underlying causes of criminal overrepresentation in black and indigenous communities are overlooked in favour of sexier, more profitable Band-Aid solutions.

It is an unfortunate trend among progressive organizations in which political opportunism trumps all. In the United States, the leading cause of death among African-Americans aged 15-34 is homicide, according to the Centre for Disease Control. Among all African-American homicide victims, 90 per cent are killed by other blacks. Last weekend, 11 people in Chicago — all black — were shot and killed, yet Black Lives Matters was elsewhere, disrupting yuppie food festivals and clambering for airtime on CNN. This is a crisis, and people are dying. The solutions will be complex and never complete, but surely a more diverse bench isn’t the first place the hard work should start.

Ultimately, if activists want to help their communities, they must focus less on cheap agitation and political stunts, and more on actually supporting those in need. There is no doubt room to improve our judicial system, but tokenizing those serving in it is not the way to do it. Promoting and sponsoring education, work training opportunities and self-respect, rather than treating communities as hapless minorities in need of a Svengali-like saviour, are key. Perhaps it means less screen time on the TV talk shops, but activists’ political opportunism must take a back seat to actually serving their communities.

Source: Allan Richarz: A more diverse bench isn’t the answer