Federal judiciary edges closer to gender parity, but numbers of minorities drop


Hmm. Effect of change in Minister?:

The federal judiciary is edging closer to gender parity after the second consecutive year in which more women than men were appointed judges, new data show. Women now make up 43 per cent of the 905 full-time judges.

But the numbers of minorities dropped, also for the second year in a row. There were just four members of visible-minority groups chosen, and two Indigenous persons, out of 86 new judges.

In the wake of the new statistics, some members of the legal community are urging the government to do more to appoint minorities to the bench.

“I think it is time now to redefine what we mean by merit,” said Daphne Dumont, a former president of the Canadian Bar Association who practises law in Charlottetown.

“I think you can be highly meritorious for all sorts of reasons that aren’t necessarily the reasons given in the application form that you have to fill in.” For instance, Indigenous lawyers who have returned to their home communities to bring them access to justice have shown merit. The process, she and others said, typically rewards those who are perceived as leaders through volunteering, teaching and participating on boards of legal associations.

The Liberal government revised the appointment process in 2016, with a stated emphasis on diversity. For the first time, the government asked judicial applicants whether they are disabled, a member of a visible minority or an ethnic/cultural minority, LGBTQ2 or Indigenous.

Each year, the Office of the Commissioner for Federal Judicial Affairs reports on the numbers of applicants and appointments from each of the groups. The numbers cover federally appointed courts such as the superior courts of provinces, the Federal Court of Canada and the Tax Court.

From October, 2016, to October, 2017, an equal number of men and women – 37 – were appointed to these courts, although men far outnumbered women among applicants. The following year, female applicants for the first time outnumbered males, and the numbers appointed also exceeded those of males – 46 to 33. This year, appointments were 47 women, 39 men.

By contrast, the numbers went down among the minority groups. This year (from October, 2018, to October, 2019), there were 20 appointees – 14 from ethnic/cultural groups; four visible minorities; two Indigenous; and zero categorized as LGBTQ2 or disabled. (There were 19 LGBTQ2 applicants and six disabled ones. Applicants can stay in the pool for two years.) The previous year, there were seven visible minorities, three Indigenous and 29 overall. The first year of the reports, in 2017, there were 32 – including nine visible minorities.

Rachel Rappaport, a spokeswoman for Justice Minister David Lametti, said the minister has met with legal organizations since his appointment early this year to encourage applicants from visible-minority, Indigenous, linguistic-minority and LGBTQ2 communities. The meetings were also a chance to identify barriers and work together on solutions to further expand the pool of candidates, she said.

Lori Anne Thomas, president of the Canadian Association of Black Lawyers, said the appointments of black and Indigenous judges have been “woefully lacking.” She said she was singling out those two groups because they are overrepresented in the criminal-justice system, and among families in the child-protection system.

“The women who are appointed are white women. It shows there have been a lot of efforts in the legal community to create fairness and equality when it comes to gender, but it’s still not there in terms of race, or Indigenous persons,” she said in an interview.

Ms. Thomas said she would like to see “more consideration” given to members of overrepresented communities – for instance, for overcoming obstacles.

“Those who are racialized won’t be given the same kind of opportunities to speak on panels, to lead cases in the same way that especially their white male counterparts would be given.”

On that point, Scott Maidment, president of the Advocates’ Society, a lawyers’ group, said change needs to come from within the legal profession, too. To become a judge, “You need opportunities for leadership within the profession.” The Advocates’ Society has revised its leadership principles to stress inclusivity, he said.

Source: 43 per cent of federal judges

Trump’s Impact On Federal Courts: Judicial Nominees By The Numbers

Significant longer-term impact:

President Trump can be a master of distraction, but when it comes to judges, his administration has demonstrated steely discipline.

In the 2 1/2 years that Trump has been in office, his administration has appointed nearly 1 in 4 of the nation’s federal appeals court judges and 1 in 7 of its district court judges.

The president recently called filling those vacancies for lifetime appointments a big part of his legacy. Given the relative youth of some of his judicial picks, experts say, those judges could remain on the bench for 30 or even 40 years.

Legal observers say Trump and his Republican allies in the Senate have placed an unmistakable stamp on the federal judiciary, not only in ideology but in identity.

“What stands out to me is that President Trump is deliberately nominating the least diverse class of judicial nominees that we have seen in modern history,” said Kristine Lucius, executive vice president for policy at the Leadership Conference on Civil and Human Rights. “It is stunning to me that 2 1/2 years in, he has not nominated a single African American or a single Latinx to the appellate courts.”

In all, around 70% of Trump’s judicial appointees are white men. Dozens of those nominees have refused to answer whether they support the Supreme Court’s holding in Brown v. Board of Education, the 1954 opinion that said racial segregation of public schools is unconstitutional.

Civil rights advocates say those nonanswers should be disqualifying. But with Republicans holding 53 seats in the Senate and on board with Trump’s program to confirm as many judges as possible, these nonanswers usually aren’t.

Conservative legal analyst Ed Whelan said there are good reasons why some judicial candidates balk at those questions.

“I think there’s a game being played here, and the critics are part of that game,” said Whelan, who leads the Ethics and Public Policy Center in Washington, D.C. “It’s quite clear that what Democratic senators aim to do with that questioning is say, ‘Well, if you can answer questions about Brown, why won’t you answer questions about Roe?”

Whelan was alluding to Roe v. Wade, the decision that legalized abortion.

Consequences of courts transformed

Abortion-rights groups worry that Roe is now in peril from the new generation of judges with ties to the conservative Federalist Society, whose leader has consulted with the White House to select two Supreme Court justices and many other candidates for the lower courts.

With all his judicial appointees, however, Trump has not transformed the courts as much as he could have, legal analysts say. If more Democratic vacancies had been open, Trump’s impact could have been even more dramatic.

Russell Wheeler, a visiting fellow at the Brookings Institution, said Trump has mostly replaced judges appointed by Republican presidents with his own candidates, adding to conservative majorities in courts based in the South and narrowing the margin in the 9th Circuit in San Francisco — a frequent target of the president’s attacks.

All the same, Wheeler said, the new judges of the Trump era are generally more conservative than the older ones winding down their careers.

“When you replace a 70-year-old George W. Bush appointee who is slightly to the right of center with a 45-year-old movement conservative, obviously you’re not trading apples for apples,” Wheeler said.

A high-water mark?

Trump and Senate Majority Leader Mitch McConnell, R-Ky., may have reached a “high-water mark” on the federal appeals courts, Wheeler said.

They may have filled vacancies so quickly that there are unlikely to be many more openings on the circuit courts in the year ahead — unless judges appointed by Democrats decide to retire in large numbers.

That means attention is turning to the lower courts, which handle cases on civil rights, the environment, financial regulation and federal crimes.

On July 30 and 31, the Senate confirmed 13 district court judges before leaving the Capitol for its August recess. The Senate Judiciary Committee, run by Chairman Lindsey Graham, R-S.C., is poised to pick up the district court judge process again this fall.

Whelan, of the Ethics and Public Policy Center, said evangelicals and other conservatives are delighted with that pace — and with the White House for delivering on its promises to prioritize the judiciary.

In a few cases, Republican senators have brought down the president’s own nominees, getting the candidates to withdraw sometimes because they’re not conservative enough.

For progressive activists, that only highlights the need for Democrats to take judicial appointments more seriously. The subject has so far not been a focus in any of the Democratic presidential debates, in which 2020 hopefuls are making the case for why they should be the Democratic Party’s nominee to take on Trump.

But as Brian Fallon of the group Demand Justice pointed out, the Democratic presidential candidates are campaigning on ambitious ideas — climate change policies, health care and financial regulation.

Those things, he said, will be disputed in court and will need to survive judicial review in front of judges — many of whom were appointed by Trump.

Fallon has this to say to Democrats vying for the White House: “They actually owe it to the voters to explain very clearly what they’re going to do to take back the courts and who they’ll nominate in order to do that.”

Source: Trump’s Impact On Federal Courts: Judicial Nominees By The Numbers

Higher Asylum Grant Rates Predict Higher Family Appearance Rates in Top Immigration Courts

Interesting study. Similar findings to those of Sean Rehaag, with high variance among judges (thestar.com/…/getting-refugee-decisions-appealed-in-court-the-luck-of-the-draw-study-shows):

TRAC Immigration, a project of Syracuse University, published a report this week, showing that 81 percent of recently released families apprehended at the border showed up for all of their hearings. Some immigration court locations did much better than others in obtaining compliance from immigrant families. San Francisco’s court had almost zero no-shows, while two and five skipped out in Atlanta.

TRAC’s report hypothesized that it was possible that “the lowered appearance rates in some courts arose from particular deficiencies in the recording, scheduling or notification systems there.” While this could be, there is no way to test for such variation. Another strong hypothesis, suggested by Aaron Reichlin-Melnik of American Immigration Council, is that immigrants are much more likely to fail to appear in courts where they have a lower probability of receiving asylum.

Fortunately, TRAC also reports asylum grant rates by immigration court, allowing us to test this.

Figure 1 shows the relationship between asylum grant rates in FY 2019 and family appearance rates in the ten immigration courts that received the most family docket cases (in order of the courts with most cases). These ten court were initially designated to track “family unit” cases in November 2018, and while this practice has expanded to several other courts, 87 percent of the family cases tracked by the government are still in these ten courts.

The five courts with the highest appearance rates had asylum grant rates on average 55 percent higher than the five courts with the lowest appearance rates (37 percent to 23 percent). The five most successful courts had 89 percent of their immigrant families appear at all hearings compared to 75 percent at the other five courts.

The asylum grant rate in 2019 predicted a very significant portion of the variance in appearance rates between courts—42 percent to be precise—that year, and a 10 percentage point increase in the asylum grant rate in a court is associated with almost a 3 percentage point increase in the appearance rate for that court. There are other ways to measure the asylum grant rate. The immigration courts include asylum cases that were closed without a decision being made on the merits. But using that metric doesn’t change the association.

Higher failure to appear rates do not explain the higher denial rates, as just 1.4 percent of asylum denials are a result of a failure of the immigrant to appear. People who skip almost always do so before they officially file for asylum. It could be that immigrants who go to certain courts like Atlanta have worse asylum claims to begin with, but as TRAC notes, “there seems little reason for families with different strengths of asylum claims to migrate to some parts of the country and avoid others.”

Ultimately, the identity of the judge seems like the most important factor in winning asylum. The Government Accountability Office in 2016 found that even controlling for other relevant factors, “the defensive asylum grant would vary by 57 percentage points if different immigration judges heard the case of a representative applicant with the same average characteristics we measured.” It would be very useful if TRAC published data on the appearance rates by judge to determine if it’s the location or the judge that matters the most.

Obviously, because we only have data for a few courts in 1 year, it is impossible to nail down this relationship with certainty, but it appears that if every court had the same asylum grant rate as San Francisco (68 percent), the appearance rate for families would have increased to 90 percent. It may seem obvious that the likelihood of success in court makes people more likely to follow the legal process. But many people’s impression is that every asylum applicant has no case, so they have no reason to show up. That’s false, but unfortunately, some courts are turning this theory into a self-fulling prophecy.

Source: Higher Asylum Grant Rates Predict Higher Family Appearance Rates in Top Immigration Courts

The changing face of Canada’s judiciary: more women, more diversity

CBC catches up (see my earlier Taking stock of Ottawa’s diversity promises). McGill Professor Salzman makes the  assumption that previous processes were colour, gender, and race blind, as blind cv and other examples indicate is highly questionable if not downright false:

Canada’s judiciary is becoming more diverse, with more women, visible minorities, LBGT and Indigenous people on the bench.

The broader mix of judges — and especially the rising number of women hearing cases — is being hailed as historic progress by many in the legal profession. Some worry, however, that targeting “gross demographic categories” could erode a merit-based appointments system.

The number of Indigenous judges also remains low compared to other demographic groups.

The Liberal government overhauled the judicial appointments system in October 2016 in a bid to recruit a more diverse array of candidates and make the selection process more transparent. It made it mandatory to publicly report the number of applicants and appointees from demographics historically under-represented on the bench.

Statistics for the period Oct. 27. 2016 to Oct. 28, 2018, posted online by the Office of the Commissioner for Judicial Affairs, break down the 153 judicial appointments during that period:

  • 83 women
  • 70 men
  • 26 from “ethnic/cultural” groups
  • 16 visible minorities
  • 10 LGBT
  • 6 Indigenous
  • 3 with disabilities

Ray Adlington, president of the Canadian Bar Association, praised what he called the “significant progress” in boosting diversity in federal judicial appointments — which cover superior courts for provinces and territories, courts of appeal, the Federal Court, the Federal Court of Appeal and the Tax Court of Canada. He said he believes it’s crucial for the justice system to better reflect the population.

“If the judiciary visibly represents the society it serves, then it will give that society more confidence that the judiciary is serving the interests of that society,” he said.

“It will promote access to justice, it will promote confidence in judicial administration if the judges actually represent the society. Historically that has not been the case, but we’re certainly moving toward that objective.”

The most dramatic change in the judiciary has been in terms of gender balance, with 2016 marking the first year more women than men were appointed to the bench.

As of April 1, 2019, there were 1,193 federally-appointed judges, 492 of them women.

Andrea Gunraj of the Canadian Women’s Foundation called that progress, but said more needs to be done to achieve gender equity on the bench.

“There are other intersectional forms of equity to consider as well,” she said. “For instance, how many of the judges are Indigenous women? Racialized women? Women with disabilities? A judiciary that reflects all communities, in all their diversities, is so critical.”

More women in law schools

Acadia University law professor Erin Crandall said the key to transforming a judiciary that, historically, has tended to be made up of white men is to get students from more under-represented demographics into law schools.

“It’s a really slow process, because you don’t have somebody going from being in law school to being a judge in Canada. Typically they have 15 to 20 years’ experience,” she said. “Women started to enter law schools in greater numbers in the 1970s, so we’ve had this growth now over several decades.

“In some cases, we’re still building those larger potential applicant pools.”

The number of Indigenous appointees also remains relatively low. According to the Office of the Commissioner for Judicial Affairs, 46 individuals who identified as Indigenous applied for judicial appointments between 2016 and 2018. Twenty-one of them were ‘recommended’ or ‘highly recommended’ by the appointments process. Just six ended up being appointed.

Crandall said more law schools are beginning to launch special streams for Indigenous or black students to encourage more of them to join the legal profession.

The government’s last report on the appointments showed that, as of December 2018, eight of the country’s new justices were Indigenous, 20 identified as visible minorities, 13 identified as LGBTQ2 and three identified as people with disabilities.

The CBC has asked the federal government for more recent data but it has not supplied the information to date.

Justice Minister David Lametti has been fending off criticism about judicial appointments since the Globe and Mail reported that the government consults the Liberal Party’s database of supporters in the course of the appointment process.

Defending the vetting regime, Lametti insisted this week the government has worked to improve transparency and diversity in a merit-based process. The government has appointed or elevated 296 judges since it was elected in 2015, he said.

“The diversity of these candidates is unquestioned,” Lametti told the House of Commons in question period Thursday. “Fifty-five per cent of them are women and we’re going to continue to ensure that our appointments process is merit-based, continues to be fair, continues to be open and continues to attract the very best candidates.”

LGBT community playing ‘catch-up’

LGBT advocate and Toronto lawyer Richard Elliott said the representation of gay, lesbian and transgender Canadians on the bench is lagging behind other demographics. He pointed out that there has never been an openly gay or lesbian justice on the Supreme Court of Canada.

Part of the problem, he said, has been the small pool of LGBT candidates graduating from law schools and serving in the legal community.

“For many years, we were considered criminals. The law was used to oppress us and we were excluded from civil life in Canada, including the legal profession. So we’ve been playing catch-up for many years,” Elliott said.

Elliott said judges gain valuable insight into the lives of LGBT Canadians when they have colleagues on the bench who are openly gay or lesbian.

Call for a ‘blind’ appointment process

Some question the pursuit of judicial diversity, however. Philip Carl Salzman, professor emeritus of anthropology at McGill University, said he believes the diversity objective is “highly questionable” because it runs counter to recruitment based on merit.

“Diversity is gender, racial, sexual preference, ethnic, etc. Those seem to me to be a very poor basis for picking people who are supposed to make important decisions,” he said.

Salzman said he has seen a similar trend in academia, of people being hired on the basis of diversity goals over scholarly expertise. He said he believes candidates should not be selected as a result of “gross demographic categories” because it amounts to reverse discrimination.

“You’re going to get people who aren’t as good as you would if you had a colour-blind, sex-blind, gender-blind process,” he said.

Source: The changing face of Canada’s judiciary: more women, more diversity

PMO vets potential judges with Liberal database

Inappropriate in many ways. But it would be good to have some comparative data on the processes previous governments used, if any, in their review of possible partisan links to know if this is new or just a more sophisticated version of previous practice (e.g., running names by regional or other ministers).

As I have noted elsewhere, representation of women, visible minorities and Indigenous peoples increased dramatically under the current government (Taking stock of Ottawa’s diversity promises):

The Prime Minister’s Office is using a private party database called Liberalist in its background checks on candidates for judicial appointments, a tool that allows them to see whether would-be judges have supported the Liberal Party in recent years, records show.

The Liberal Party designed the database to be used for partisan purposes, such as helping Liberal candidates track and reach their supporters during election campaigns.

However, confidential documents obtained by The Globe and Mail show the PMO’s appointments branch is also using it to look into the partisan background of applicants for judicial positions. The documents, which were provided by a source, were produced by the PMO and show the results of database checks on judicial applicants. Liberalist is the only one of the databases that is not accessible to the public.

As justice minister, Jody Wilson-Raybould modified the process under which the federal government appoints judges to superior and federal courts in 2016, promising to increase the “openness, transparency, accountability and diversity of Canada’s judiciary.” In particular, the reforms gave greater independence to the seven-member judicial advisory committees (JAC) that evaluate the candidates for appointments.

However, sources said the process still includes a role for the PMO in vetting candidates further. The records show the PMO used Liberalist to evaluate candidates who had gone through the JAC process.

In the case of two lawyers who were vetted in 2018, for example, the documents indicate that Liberalist showed the years in which they were members of the Liberal Party of Canada, their history of donations to the party at the riding and national levels and the fact they voted in the 2013 leadership race. The database designated each of the two candidates (who were appointed to the bench) as a “supporter” of the party. It is not clear from the documents what “supporter” means.

A spokeswoman for Prime Minister Justin Trudeau said it is “normal and appropriate” for the government to be ready to answer questions on the “political activities and affiliations of government appointees.”

“All judicial appointments follow our new, open, independent, transparent and merit-based process,” PMO spokeswoman Chantal Gagnon said. “Political activity or donations have no impact on a person’s candidacy or selection for a judicial appointment. Our government has appointed people that have donated or been involved with parties of all political stripes.”

Using information from Elections Canada’s public database of political donations, The Globe has determined that about 25 per cent of the 289 judges appointed or promoted by Mr. Trudeau’s government since 2016 had donated to the Liberal Party of Canada. About 6 per cent donated to the Conservative, New Democratic or Green parties.

Of the donations made by these judges, $321,650.58, or 90.9 per cent of the total amount, was directed to the Liberal Party. By comparison, 4.2 per cent of the identified donations went to the Conservative Party, 4.7 per cent to the NDP and 0.1 per cent to the Green Party.

LOOKING FOR RED FLAGS

Judicial appointments have been a frequent source of controversy in Canadian history, given that no rules prevent government officials from favouring lawyers with ties to their party.

The Prime Minister is in charge of appointments to the Supreme Court of Canada, which will have a vacancy in September, when Clément Gascon officially retires.

Lower-ranking judges are appointed on the advice of the cabinet after a recommendation from the justice minister.

In the first stage of the process, applicants are evaluated by one of 17 seven-member JACs across the country. These committees are made up of members appointed by the government to represent the general public and members who are appointed by the provinces and the legal community.

The previous Conservative government appointed four representatives of the public, giving them the voting majority.

Under the process Ms. Wilson-Raybould created, the federal government appoints only three members to represent the public. The other four represent the provincial bar, the provincial chapter of the Canadian Bar Association and the provincial chief justice and attorney-general.

The government said when it announced the new process that it allows the committees to rank applicants as “highly” recommended in order to favour “truly outstanding candidates” for judicial appointments.

According to federal sources and records, the office of the minister of justice and the Prime Minister’s Office then conduct additional vetting.

Under the current government, all the ministers from a candidate’s province are consulted. In addition, some backbench MPs (especially those that are lawyers) and individuals outside government can be asked for their thoughts.

The PMO uses public databases to look into the candidates’ past, putting their names in Google News or the media monitoring service Infomart to see whether they have generated controversy. The PMO also looks in the database of names that appeared in the Panama Papers (a database of people linked to tax havens), the federal registry of lobbyists and a federal website that lists recipients of contracts and grants.

With these and other open sources of information, the PMO compiles the candidates’ history of donations to political parties and digs through their social media accounts (such as Facebook, LinkedIn and Instagram) to look for red flags.

‘SENSITIVE INFORMATION’

Liberalist was put together by Liberal officials and volunteers who compile information from their contacts with members of the public in person, on the phone or online. The information is continually updated and added to the official list of registered voters for use during election campaigns, providing information on the partisan activities of Canadians.

The party has been using Liberalist for a decade. The software was modelled on a database the Democratic Party in the United States used under Barack Obama, who made it part of his campaign to win the presidency for the first time, in 2008.

The Privacy Commissioner and the Chief Electoral Officer of Canada recently expressed concerns that federal privacy laws do not apply to the large databases of information political parties amass on voters.

“Information about our political views is extremely sensitive and worthy of strong privacy protections,” Privacy Commissioner Daniel Therrien said on April 1. “We know that political parties collect vast amounts of data about voters. Canadians expect and deserve to have their privacy rights respected as they exercise their democratic rights.”

The Globe’s analysis of Elections Canada’s political contributions database looked at 4.95 million contributions, combining two Elections Canada donation data sets (one from 2000 to 2004, and another from 2004 to the present). Contributions before 2000 were not included due to differences in the structure and quality of the data.

The analysis compared the names in that database with those of the 289 judges who were appointed or promoted under the current Liberal government.

To prevent cases of mistaken identity, the judges’ donations were confirmed by cross-referencing their home cities and postal codes. The fact that many lawyers include their middle initials in their names added certainty to a number of matches.

Due to typos or other errors in donation information submitted to Elections Canada, some donations may not have appeared in The Globe’s search. Because the analysis looked for donors’ names, a small number of individuals who share a full name with a sitting judge and live in the same area may have been captured in the analysis.

Over all, 1,187 contributions were matched to 83 judges – nearly one in three of those appointed. Seventy-five judges, or 90.4 per cent of all judges who made donations, gave to the Liberal Party or its candidates. Nine (10.8 per cent) donated to the Conservatives, eight (9.6 per cent) to the New Democratic Party and one to the Green Party of Canada. Ten judges donated to more than one party.

The office of Justice Minister David Lametti said judges were named or promoted based on competence, without any considerations for their political leanings.

“All judicial appointments are made on the basis of merit,” said spokesman David Taylor, who added the minister considers factors such as “the needs of the court, each candidate’s expertise and the strength of their application” in recommending candidates for appointment.

“Citizens are free to make donations to whatever political party they choose. This includes members of the bar. Our judicial appointments process neither disqualifies nor privileges an applicant because of his or her legal donation to a political party,” Mr. Taylor said.

Source: PMO vets potential judges with Liberal database

Taking stock of Ottawa’s diversity promises

My latest in Policy Options:


Each of the mandate letters given to cabinet ministers by Prime Minister Justin Trudeau over the past three years has included the following commitment: “You are expected to do your part to fulfill our government’s commitment to transparent, merit-based appointments, to help ensure gender parity and that Indigenous Canadians and minority groups are better reflected in positions of leadership.”

With three years of appointments under the Trudeau government’s belt, it’s possible to conduct an analysis of its record with respect to judicial, Governor-in-Council, deputy minister, head of mission and Senate appointments, using available data and public records.

The government has largely delivered on its commitment, but with mixed results on its promise to be more transparent on appointments…

Full article: Taking stock of Ottawa’s diversity promises

American Bar Association is ‘greatly concerned’ about low percentage of female and minority US attorney candidates

Consistent with the lack of diversity among Cabinet and other appointees:

ABA President Hilarie Bass has sent a letter to Attorney General Jeff Sessions that asks him to urge senators proposing U.S. attorney candidates to take diversity into account.

The letter (PDF) is dated Nov. 30, nearly two weeks after President Donald Trump announced a ninth wave of U.S. attorney nominations. Of the 57 U.S. attorney candidates announced so far by the Trump administration, one was black and three were women, Newsweek reported.

The letter acknowledges that senators representing states in which U.S. attorneys are to serve have long had the prerogative to make recommendations for appointments. But the attorney general who will oversee the U.S. attorneys “also has influence over the process,” the letter says.

“We are greatly concerned that a lower percentage of women and people of color have been appointed to these positions in the past year than in previous administrations—both Democrat and Republican,” the letter says. “That is why I am writing you to ask that you take an active role to help ensure that the cadre of U.S. attorneys appointed in this administration is more reflective of the legal profession and our society.”

The letter says equal numbers of men and women are graduating from law school, but the profession is 65 percent male and 85 percent white. Progress in achieving diversity “has been uneven, slow, and concentrated in low- and mid-level legal jobs,” Bass writes. “Racial and ethnic groups, sexual and gender minorities, and lawyers with disabilities continue to be underrepresented and face hurdles to advancement throughout the profession.”

“Our failure to achieve a diverse justice system despite the ever-increasing multiculturalism of our nation invites a crisis in public confidence,” the letter says. “A justice system that is not representative of the diverse community it serves risks losing its legitimacy in the eyes of those who come before it.”

via ABA is ‘greatly concerned’ about low percentage of female and minority US attorney candidates

Liberal government not always appointing top recommended judges

Good analysis by Sean Fine. Greater transparency leads to more questions, but commendable that the government is releasing this data. Will do more analysis once I have reviewed the report but relieved that I will no longer have to review judicial announcements and compile my own data:

The Liberal government is not always appointing judges from a pool of “highly recommended” candidates, raising questions about whether partisan political considerations or diversity concerns are trumping merit.

Under a ranking system brought back last October by the Liberals – who said it would “highlight truly outstanding candidates” – advisory committees identify the best as “highly recommended.” Second best are “recommended.” A third group is “unable to recommend.” The Conservatives had dropped the “highly recommended” category in 2007, drawing criticism from the legal community.

But the Liberals have appointed a number of judges from the “recommended” list, according to a federal agency that supports the appointment process. Justice Minister Jody Wilson-Raybould would not reveal how many when contacted by The Globe and Mail. Neither would the Office of the Commissioner for Federal Judicial Affairs, which collects data on the process.

New statistics released as part of Ms. Wilson-Raybould’s stated effort toward transparency and diversity show a large surplus of the truly outstanding: 129 highly recommended candidates, for just 74 appointments made since last October. The rankings come from 17 non-partisan advisory committees across the country, who review the candidates’ applications and check each individual out with lawyers they know in the community.

Ms. Wilson-Raybould, who had instructed the judicial affairs commissioner to collect and publish the statistics, says it is her prerogative to appoint from the recommended list.

“I take care to consider a number of factors, such as each candidate’s expertise, the needs of the court, and the strength of their application,” she said in an e-mail to The Globe. “Whether someone is recommended or highly recommended is one factor that I take into account, among many important considerations, in exercising my prerogative to appoint the best candidates to the judiciary.”

The highly recommended category is the key to a merit system of appointments, says Peter Russell, a political science professor emeritus at the University of Toronto. “If you just appoint people who are merely qualified, that is not looking for the best-qualified people for the positions.”

In an interview, he questioned whether some appointed from the recommended group were chosen for their affiliation with the Liberals. “I think we should know – is it politics?”

The return of the “highly recommended” category was part of the Liberals’ new appointments process in which candidates are now asked to self-declare their sexual orientation, ethnicity and other background factors. That information is kept private.

On Friday, for the first time in Canadian history, the judicial affairs commissioner published data on the diversity of candidates and appointments.

Commissioner Marc Giroux’s office said revealing the number of appointees from the “recommended” list could be damaging to the legal process.

“We have considered whether providing a further breakdown regarding appointees and the ‘rating’ of recommended or highly recommended should be provided,” spokeswoman Caroline Masse said. “However, if such were disclosed, litigants or others could determine whether or not a particular judge was recommended or highly recommended by simply referring to their biography and comparing it to these statistics.

“This prevents our office from distinguishing between the number of appointees that were highly recommended vs. recommended,” Ms. Masse said in her e-mail.

Just short of 1,000 applications have been received since last October, of which the committees got around to assessing 441. Of those 441, 129 candidates were highly recommended, 82 were recommended and 230 were not recommended.

The data also show that, of the 74 appointments under the new process, 37 were men and 37 were women. (An additional 12 were of judges who moved from trial courts to appeal courts; of these, five were men and seven women.) Men, however, made up a much larger proportion of assessed and highly recommended candidates; there were 75 highly recommended men compared with 54 highly recommended women.

For years, the federal government had been urged by lawyers’ groups to collect data on applications and appointments by race. The new data show that, in the “visible minority” category, 97 applied (or roughly 10 per cent of all applicants) and 42 were assessed. Thirteen were highly recommended, six recommended and 23 not recommended. The government appointed nine visible minority judges.

Toronto lawyer Ranjan Agarwal, past president of the South Asian Bar Association, said the numbers show that there is more work to be done in mentoring and encouraging visible minority lawyers to apply. “Maybe there’s just not enough candidates applying from minority communities, which I think was the point of having the data – we could then focus in on the problem areas.”

There were 36 Indigenous candidates who applied and 11 who were assessed. Five of the 11 were ranked highly recommended, two were recommended and four not recommended. Three Indigenous judges were appointed.

f those lawyers who described themselves as belonging to an “ethnic/cultural group or other,” there were 190 applications, and 80 assessed; of those, 18 were highly recommended, 16 recommended and 46 not recommended. Fifteen were appointed.

There was one person with a disability appointed out of 10 assessed candidates (two highly recommended and eight not recommended). There were four judges appointed from the LGBTQ2 community, out of 23 candidates assessed. Six were highly recommended.

There were more “highly recommended” candidates in every category of diversity (women, ethnic minorities, LGBTQ, Indigenous and disabled) than judges appointed from each group.

Source: Liberal government not always appointing top recommended judges – The Globe and Mail

Liberals’ judge selection has new bias, lawyers association says

Some valid concerns regarding diversity of experience and practice – in meeting the needs for  “identity” aspects of diversity, necessary to think also about these other aspects:

After appointing five women and no men to the bench in the Maritimes, the Liberal government is being told its commitment to diversity has a large blind spot – but not over the gender issue.

The Liberal government stressed diversity in launching a new process for appointing judges in October, 2016. For the first time, applicants are being asked about their race, gender identity, Indigenous status, sexual orientation and physical disability. Members of the committees that screen candidates are receiving training in “unconscious bias.”

Three of the five appointees in the Maritimes since then specialized in insurance law when they were lawyers, the Atlantic Provinces Trial Lawyers Association said in an open letter to federal Justice Minister Jody Wilson-Raybould on Wednesday. And all three worked for the same regional law firm, Stewart McKelvey.

“Their background is representing insurance companies in personal injury claims against the average Joe,” said Brian Hebert, president of the Atlantic lawyers association. “We’re hoping this isn’t a trend.”

In Prince Edward Island, six of the eight sitting judges on the Supreme Court and the Court of Appeal are from Stewart McKelvey. The Globe and Mail attempted to reach the managing partner of the firm’s Charlottetown office, and other managing partners, without success.

The Atlantic lawyers’ group represents plaintiffs in personal-injury cases – that is, individuals who in many cases sue insurance companies. “We represent the average person who has to fight insurance companies,” Mr. Hebert said.

“It’s a concern when we see judges being appointed from the same practice background, because we believe that as lawyers, we’re human, we’re influenced by our clients that we serve day-in, day-out, the culture of the firm that we’re in, the type of law that we practice.”

A spokesman for the Justice Minister said that only two of 12 judges appointed in Atlantic Canada since the Liberals took office in 2015 – a slightly different time-frame from the one referred to in the lawyers’ group letter – were, at the time of their appointment, with Stewart McKelvey.

“Minister Wilson-Raybould’s appointments in Atlantic Canada and throughout the country are based entirely on merit,” the spokesman, Dave Taylor, said in an e-mail.

“They respond to the needs of the courts, as identified through close consultation with Chief Justices. … The minister has been proud to appoint such outstanding candidates to the bench, as our government works toward building a judiciary that fully reflects the country it serves.”

Mr. Hebert said the appointees are highly qualified and he is not critical of the quality of appointments. Nor is his group critical of the lack of men appointed under the new process.

Christa Brothers, a former partner at Stewart McKelvey, was appointed to the Supreme Court of Nova Scotia in July; Tracey Clements, a partner at the same firm in Charlottetown, was named to the PEI Supreme Court in March; and Chantal Daigle, who chaired the recruitment office for the Saint John office of Stewart McKelvey from 2013-15, and who became a partner in 2004, was appointed last week to the Family Division of the New Brunswick Court of Queen’s Bench, after a year as case management master of that same court.

The other two appointees were not from law firms. One was a long-time provincial court judge promoted to the appeal court in Nova Scotia and the other was a lawyer from the Antigonish Legal Aid Office named to Nova Scotia’s Supreme Court.

“The reason we want women on the bench,” Mr. Hebert said, “is so that when women’s issues are before the court, or when women appear in court, there is a balancing of views. Same thing with race or other areas where we would want diversity. What we’re saying is the same considerations apply when you’re talking about the professional background of lawyers that are on the bench. There has to be a balance between the large-firm, insurance defence lawyers and other lawyers who are fighting for the rights of plaintiffs.”

In its letter, the association said a more diverse judiciary will bring “varied perspectives to the development of the law and the concept of justice itself.” 

Source: Liberals’ judge selection has new bias, lawyers association says – The Globe and Mail

Liberals reshape judicial bench with appointments of women

The Globe finally catches up to the story of the increased diversity of the government’s judicial appointments, almost exclusively focussing on gender with only cursory reference to the increased number of visible minority (8.5 percent) and indigenous (5.1 percent) judicial appointments (after Thursday’s latest batch of appointments).

The Globe also misses another key aspect: the increased diversity in the Judicial Appointments Advisory Councils named to date: 62.9 percent women, 11.4 percent visible minorities, and 10.0 percent Indigenous peoples:

The Liberal government is reshaping the bench, appointing a substantial majority of women, even though they make up a minority of applicants. The approach is winning praise from some in the legal community, while sparking concern about “quotas” from others.

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.

Making federal institutions more reflective of Canadian diversity has been a theme of the Liberal government. Its cabinet has an equal number of men and women, and it announced a plan last week to ensure more women and minorities are named to federally funded research chair positions at universities.

Justice Minister Jody Wilson-Raybould says a more diverse bench will build the public’s confidence in the judiciary. “We are beginning to demonstrate how it is possible to have a bench that truly reflects the country we live in,” she said in an e-mail to The Globe and Mail.

But some in the legal community question the government’s commitment to the merit principle in appointing judges to federally appointed courts, which includes the superior courts of provinces, the Federal Court and Tax Court.

“I’m not really in favour of a quota system – those are alarming discrepancies,” Brenda Noble, a veteran family lawyer in Saint John, said in an interview, referring to the gap between female appointees and applicants. “You want to have the best people in the job.”

Ian Holloway, the University of Calgary’s law dean, said it is hard to fault the government for increasing the proportion of women judges. Even so, he said he worries the government is putting too much emphasis on gender.

“In the old days, it was offensive that people got judgeships just because they were Liberals or Tories. That helped breed contempt for the judiciary. What we don’t want to do is replicate that in a different form.”

But others say the government is doing the right thing.

Brenda Hildebrandt, a Saskatoon lawyer and governing member of the Saskatchewan Law Society, was pleased. “Do I think it’s a good thing women are more represented on the bench? Yes, I do, and I would hope that those are qualified candidates and that the fact that they’re women is just one consideration, albeit important.”

Rosemary Cairns Way, a University of Ottawa law professor who has studied diversity on federally appointed courts, supports the government’s move as a way of achieving gender parity. “When there is no shortage of meritorious candidates, it seems to me the government can legitimately choose judges who, in addition to being independently qualified, will fulfill other institutional goals such as a more diverse and gender-balanced bench.”

When the Liberals took office, 35 per cent of the federal judiciary (full-time and semi-retired) were women, according to the Office of the Commissioner for Federal Judicial Affairs. Given a similar time frame to the Conservatives – a decade in office – the Liberals would ultimately put women in the majority among the full-time federal judiciary if they maintain the current ratio of appointments. The previous government appointed more than 600 full-time federal judges, 30 per cent of them women; women also made up 30 per cent of applicants during the Conservatives’ years in office.

The government’s emphasis on creating a bench more reflective of Canada’s diversity does not extend quite as much to racial minorities as it does to women. However, there are at least seven visible minorities among the new appointees – two of Indigenous ancestry, three of South Asian background, one Japanese-Canadian and one Chinese-Canadian.

The Liberals have authorized the judicial-affairs commissioner to collect, for the first time, data on race, Indigenous status, gender identity, sexual orientation and physical disability of applicants and appointees. But the office would not release those numbers to The Globe and Mail for this story, saying it is still preparing the data and it intends to publish them soon.

The Globe asked Ms. Wilson-Raybould whether she has a numerical target for the appointment of women to the federal judiciary. She replied that the government appoints judges based on merit and the needs of the court. “In assessing merit, I do not discriminate against applicants based on their gender, ethnic or cultural background,” she said in an e-mail.

She acknowledged that the pace of racial-minority appointments is lagging and suggested the problem is a lack of minorities in the legal profession.

“We know that more needs to be done to increase the number of visible minorities in our law schools. As that happens, the face of the profession will change and evolve to better reflect the rest of the population.”

Rob Nicholson, a former Conservative justice minister, and the party’s current justice critic, said his chief concern is that qualified people be appointed. “If it’s 55-per-cent women and 45-per-cent men, as long as we get qualified people for this,” he said.

Source: Liberals reshape judicial bench with appointments of women – The Globe and Mail