Seeking diversity, feds add inclusive language to application process for judges

Appears the main change is with respect to pronouns and some additional diversity indicators. Screen capture below (kind of interesting that “woman” is now last on the list, likely reflecting the progress that has been made):

Overall, the Liberal government has dramatically increased the diversity of judicial appointments compared to the previous Conservative government:

The Canadian government is making changes to the questionnaire prospective judges must fill out before applying for a federal judicial appointment.

The change is intended make the questionnaire more respectful by adding inclusive language for people to “self-identify diversity characteristics.”

Critics have argued Canada’s judiciary lacks diversity.

The questionnaires are a primary tool used by judicial advisory committees across the country to review candidates for the bench and submit recommendations to the minister of Justice.

Former Justice minister Jody Wilson-Raybould announced a process to increase transparency, accountability and diversity in the courts in 2016, with an emphasis on selecting women and visible minorities.

The changes were made in consultation with the Canadian Bar Association, the Canadian Judicial Council and the Office of the Commissioner for Federal Judicial Affairs.

Source: Seeking diversity, feds add inclusive language to application process for judges

Questionnaire link:

Why Judges Are Basically in Charge of U.S. Immigration Policy Now

Of note. Reflects ongoing political failure:

When Texas Attorney General Ken Paxton filed a new lawsuit against the Biden Administration last week challenging the allegedly “unlawful” move to grant asylum officers authority to decide some asylum cases, no one was surprised. It’s the 11th immigration-related lawsuit Paxton has filed against the Administration since President Biden took office.

But the Texas attorney general is hardly alone in his enthusiasm for litigation. Because Congress has failed to act meaningfully since the 1990s to reform the U.S. immigration system, immigration policy has been increasingly shaped by court challenges. In recent years, liberal and conservative attorneys general, nonprofit organizations, and individual plaintiffs have filed an avalanche of immigration-related suits in federal courts, resulting in a profusion of complex and often-contradictory court rulings, experts tell TIME. With Congress on the sidelines, federal judges are now on the frontlines of interpreting and dictating the scope of executive actions, federal guidelines and agency rules—thereby determining how U.S. immigration policy actually works.
[time-brightcove not-tgx=”true”]

“This is a manifestation of our broken immigration system,” Stephen Yale-Loehr, professor of immigration law at Cornell University, tells TIME. Congress’s failure to pass comprehensive immigration reform has resulted in an explosion of agency rules and executive actions—which, in turn, lead to more legal challenges, he says. “Today, almost every executive action on immigration is being challenged in the courts.”

This ad-hoc system has resulted, both at the U.S.-Mexico border and within government agencies, in “peak confusion,” says Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center (BPC), a Washington think tank. New federal rules or guidances are often blocked, terminated, or forcefully reinstated, sometimes with additional restrictions or requirements, just days or weeks after they were announced. Government officials, immigration lawyers, and lay people are often baffled about the contours of U.S. law, says Elora Mukherjee, professor of law at Columbia University and director of the school’s Immigrants’ Rights Clinic.

Giving judges so much power to determine immigration policy also puts the U.S. judicial system in a delicate spot, Yale-Loehr says. Federal judges are often wary of being drawn into issues of national sovereignty or of ruling in a way that impinges on the executive branch’s authority to conduct foreign policy. But, these days, they often have no choice. “Courts are loath to weigh in,” Yale-Loehr says.

Recently, Supreme Court Justice Stephen Breyer questioned the role of his own court in deciding a case about the Trump-era policy, Migrant Protection Protocols (MPP), which requires the Biden Administration to negotiate with the Mexican government over sending migrants back to Mexico to await asylum hearings. During April 26 oral arguments, Breyer warned his fellow justices to move gingerly. “Foreign affairs is involved,” he said. “And, Judges, this is above your pay grade, okay? Stay out of it as much as you can.”

How did we get here?

Immigration-related litigation has been around for decades, but many experts point to a moment, in 2016, when the floodgates opened.

On June 23, 2016, the Supreme Court voted 4-4 on a case brought by Texas challenging whether a key Obama Administration executive action known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), could move forward. (Justice Antonin Scalia, who died in February 2016, had yet to be replaced.) DAPA, an expanded version of Deferred Action for Childhood Arrivals (DACA), would have granted some parents of those who arrived unlawfully in the U.S. as children protection from deportation. The tie vote meant the lower court’s decision blocking DAPA remained in place—a very high-profile win for Texas. The victory provided a key roadmap for other attorneys general in the years that followed.

When President Donald Trump was inaugurated, it was the liberals’ turn at bat. Within days of Trump taking office, the ACLU brought a suit challenging the new Administration’s ban on foreign nationals from seven predominantly Muslim countries from visiting the U.S. Over the course of his tenure, the Trump Administration was sued hundreds of times over immigration policies. Overall, the Trump Administration was sued 110 times by then California Attorney General Xavier Bacerra, a Democrat, according to an analysis by CalMatters, and at least 400 times by the ACLU in lawsuits. The lawsuits contested a range of immigration, environmental, and other types of executive policies.

Another reason for the recent explosion of court challenges was the pace at with the Trump Administration moved on immigration issues. Over the course of his presidency, he enacted 472 immigration policy changes according to the Migration Policy Institute, a bipartisan research institution. That “unprecedented pace” begot an unprecedented wave of new lawsuits. “That really accelerated the legal challenges,” Yale-Loehr says.

After President Biden was inaugurated, conservatives picked up where liberals had left off. “Conservative states are suing every chance they get to challenge everything that the Biden Administration is doing on immigration,” Yale-Loehr says.

An explosion of confusion at U.S. borders

Texas Attorney General Paxton’s most recent lawsuit targets the Biden Administration’s tweak to asylum processing designed to eliminate immigration court backlogs. The idea is that, by allowing asylum officers to decide straightforward asylum cases, rather than always relying on an immigration judge, authorities can drop the wait time for asylum cases from an average few years to a few months. The Department of Homeland Security (DHS) and the Department of Justice (DOJ) first announced the shift on March 24, saying it would go into effect on May 31. Texas filed suit on April 28.

The asylum tweak coincides with the Administration’s attempt to end Title 42, a controversial COVID-19 health measure implemented in March 2020 that the government has used to immediately expel thousands of migrants, including those planning to claim asylum. Title 42 expulsions are slated to end on May 23, and DHS says it expects an uptick in migration flows as a result, including an increase in people seeking asylum. Granting asylum officers the authority to decide some cases, DHS says, will help address growing migration at the U.S.-Mexico border.

But at this point, that entire policy—the Administration’s move to end Title 42, as well as its move to mitigate the effects of ending Title 42—are mired in court. On April 4, Louisiana, Missouri, and Arizona sued to block the Administration from ending Title 42 at all. The states’ challenge came on the heels of another lawsuit, brought by the ACLU and other organizations, demanding that the Biden Administration end Title 42 immediately.

This fog of judicial warfare has resulted in a confusing patchwork of temporary policies. On March 4, the D.C. Circuit Court of Appeals ruled that DHS can expel migrants under Title 42, but could not return families to a country where they faced fear of persecution or torture. That same day, Texas District Court Judge Mark Pittman ruled that the Biden Administration can’t exempt unaccompanied migrant children from Title 42 expulsions.

“That kind of back and forth is just terrible for any sort of consistency or continuity in any policy,” Cardinal Brown says.

Meanwhile, the Supreme Court will weigh in this summer on whether the Biden Administration can end MPP, also known as “Remain in Mexico” policy.

Congress fails to pass any real immigration reform

President Joe Biden sent an immigration reform bill to Congress on his first day in office, but it hasn’t gone anywhere. On Sunday, Democratic Sen. Bob Menendez of New Jersey, the bill’s lead sponsor, told Politico that there is “zero” chance immigration reform will come this year, even though Democrats hold a slim majority in the House and Senate.

The odds of passing Biden’s comprehensive immigration reform bill may worsen after the midterms, when Democrats are widely expected to lose seats.

Last week, a bipartisan group of Senators including Dick Durbin, Ill., Alex Padilla, Calif., Thom Tillis, N.C., and John Cornyn, Texas, resumed discussions of passing immigration measures, according to Roll Call. Even their efforts are unlikely to go anywhere, many Americans may be happy to see that discussions are taking place. According to a 2020 Pew Research Center survey, 75% of Americans say they support Congress creating a legal pathway to citizenship for undocumented people, including 57% of Republicans or those who lean Republican, and 89% of Democrats or those who lean Democratic.

“The American public overwhelmingly supports immigration,” Mukherjee of Columbia says. “The challenge is that our Congress is not functional.”

Source: Why Judges Are Basically in Charge of U.S. Immigration Policy Now

Plaidoyers pour plus de juges issus de la diversité

Of note (diversity has increased significantly under the current government):

Plusieurs postes de juges étant à pourvoir, le gouvernement Trudeau devra faire plus de place à la diversité dans la magistrature, plaident deux associations d’avocats en immigration au Canada. Le manque de diversité est particulièrement criant à la Cour fédérale, où à peine le tiers des 43 juges, y compris le juge en chef et la juge en chef adjointe, sont des femmes et où les minorités visibles se comptent sur les doigts d’une seule main.

« C’est étonnant. D’autant plus que 85 % des dossiers de la Cour fédérale sont en lien avec l’immigration », dit Guillaume Cliche-Rivard, président sortant de l’Association québécoise des avocats et avocates en droit de l’immigration (AQAADI).

Pour lui, il est indéniable que ces dossiers d’immigration « sont imprégnés du bagage culturel, personnel et historique des personnes qui se présentent devant la justice » et que les tribunaux doivent être plus « représentatifs de la société canadienne moderne ». « C’est pourquoi l’AQAADI croit aussi que la myriade de postes vacants de juges des cours fédérales devraient être pourvus par des personnes appartenant à ces groupes minoritaires », lit-on dans la lettre qu’elle a envoyée au ministère canadien de la Justice.

Cet avis est partagé par l’Association canadienne des avocats et avocates en droit des réfugiés, qui a également enjoint par écrit au ministre de la Justice, David Lametti, de faire une plus grande place à la diversité au sein de la magistrature. À l’automne dernier, des dizaines d’associations juridiques et de groupes de défense des droits des minorités ont aussi envoyé une lettre au procureur général du Canada appelant à ce que les postes judiciaires actuellement vacants à la Cour fédérale soient pourvus par des juges de couleur.

Depuis 2016, et par souci de transparence, le Commissariat à la magistrature fédérale est tenu de publier des données sur les nominations et les candidatures ventilées en fonction du genre, de la diversité et des compétences linguistiques. Entre les dernières élections d’octobre 2019, où le gouvernement Trudeau a été reconduit, et octobre 2020, 60 nouveaux juges ont été nommés, dont 65 % (39) étaient des femmes et 43 % (26) étaient autochtones, issus de minorités visibles, de groupes ethniques ou culturels ou de la communauté LGBTQ. Le quart (15) des juges disaient maîtriser les deux langues.

Même s’il est toujours possible de faire mieux, Andrew Griffith, ex-directeur de ce qui est aujourd’hui Immigration, Réfugiés et Citoyenneté Canada, qui s’est intéressé à la question dans des articles pour l’Institut de recherche en politiques publiques, souligne cette amélioration. Il appelle à constater tout le chemin parcouru depuis 2016, où les femmes et les minorités visibles étaient encore bien moins présentes.

Toutefois, ce chercheur à l’Institut canadien des affaires mondiales reconnaît qu’il y a peu de diversité à la Cour fédérale, une situation qu’il n’arrive pas à expliquer. En 2016, à peine 30 % des juges de la Cour fédérale étaient des femmes, mais depuis que le gouvernement Trudeau est au pouvoir, la majorité (52,6 %) des juges qui ont été nommées sont des femmes, selon sa propre compilation mise à jour en avril 2021.

Ce progrès est moins notable pour les minorités visibles et les Autochtones. Le pourcentage de minorité visible était d’à peine 2 % en 2016 et, depuis, environ 8 % des juges nommés appartenaient à cette catégorie. Paul Favel est le seul juge autochtone, sur 43 au total, à la Cour fédérale, et le deuxième dans l’histoire de cette cour.

« Entre diversité et francophonie »

Guillaume Cliche-Rivard soutient que cette ouverture à la diversité ne devrait toutefois pas se faire au détriment de la langue française. « La petite tension qu’on a, c’est qu’on est pris entre diversité et francophonie. On veut favoriser l’accès à des minorités, mais pas au détriment du français, c’est une position difficile. Et on sait qu’un faible pourcentage des juges fédéraux maîtrisent suffisamment le français pour tenir des audiences », dit-il.

Me Cliche-Rivard souligne qu’il y a environ deux ans, il a plaidé devant la Cour suprême et qu’il l’a fait en français. Or, il n’a pas eu le sentiment que les juges anglophones pouvaient tout saisir de son argumentaire. « Je n’ai pas eu l’impression que j’avais été bien compris des juges anglophones. » La ministre responsable des langues officielles, Mélanie Joly, a promis de proposer une réforme de la loi sur les langues officielles d’ici la fin 2021 et s’est engagée à obliger le bilinguisme pour les juges de la Cour suprême.

Pour son dernier tour de piste, le président de l’AQAADI, qui tire sa révérence après un mandat de trois ans, n’a pas seulement voulu interpeller le gouvernement Trudeau sur la nécessité de diversifier la magistrature : il souhaite aussi lui rappeler ses devoirs en matière de protection des réfugiés.

Peu après le dépôt du budget de 2019, Justin Trudeau avait soulevé un tollé en donnant l’aval à une nouvelle stratégie frontalière visant à empêcher les demandeurs de chercher l’asile au Canada s’ils ont déjà présenté au moins une demande semblable dans certains pays, dont les États-Unis. « Même les conservateurs n’étaient pas allés jusque-là », souligne Me Cliche-Rivard, encore en colère à propos de cette mesure.

Soulignant certaines avancées, l’avocat rappelle néanmoins que c’est sous l’actuel gouvernement libéral que les délais pour obtenir une résidence permanente sont de plus de 27 mois, qu’un demandeur d’asile peut être entendu en audience plusieurs années après son arrivée au Canada et que des réfugiés peuvent attendre plus de trois ans avant d’être enfin réunis avec leurs enfants restés dans le pays d’origine. « Et que dire du nombre de dossiers de travailleurs qualifiés du Québec. Il y a encore beaucoup de gros problèmes », conclut Me Cliche-Rivard.


MPs amend judge sex-assault training bill to add systemic racism training, sparking new concerns

Hard to understand the concerns given that the Canadian Judicial Council will develop the training but I may be missing something:

A bill that requires sexual assault training for federally appointed judges has been amended by MPs to also include training on “systemic racism and systemic discrimination” — a change some see as a troubling sign politicians will keep venturing further into judicial training.

The legislation, which has now gone through three versions in four years, has seen widespread debate in the legal community over its constitutionality. Judges are self-governed through independent bodies to insulate them from political pressure, and already have their own training programs, including on sexual assault.

Supporters of the bill argue this is simply Parliament signalling that more must be done to protect the rights of sexual assault complainants and avoid basic legal errors. They note that judicial organizations are still responsible for creating the actual training content.

But critics worry the bill represents politicians trying to inject their policy preferences into judicial training, and that once the door is opened through this sex-assault training bill, future governments will pile on with their own political priorities, such as national security.

As it turns out, MPs have not even waited for the bill to get through the House of Commons before adding to it.

Liberal MP Greg Fergus told the Commons justice committee on Tuesday that his amendments are in order because the bill already required the training to consider the “social context” around sexual assault. The new language specifies that social context includes “systemic racism and systemic discrimination.” It does not include any other topics, and does not define those terms.

“I found that this offered us a good opportunity to…include other groups into the purpose of the bill,” said Fergus, who chairs the parliamentary Black caucus. “Those are the reasons why I proposed some small modifications,” he said, speaking in French.

The amendments were carried with Liberal, Conservative and NDP support, though they still need to pass in the full House of Commons and the Senate. Only Bloc Québécois MP Rhéal Fortin voted against them, saying they stray too far off track.

“It’s like we’d gone off to buy potatoes at the store, and we returned home with strawberries,” Fortin said in French. “I’m sorry, but that doesn’t work…If we want to work on a different bill than the original one, which was for training on sexual assault, and we want something different on systemic discrimination, that’s fine and well, that can be something we could do. But we’ll have to make another bill completely or reopen the witness list.”

Fortin also argued that the term “systemic racism” is a politically popular phrase right now, but it’s not clear to everyone what it means.

Arif Virani, the parliamentary secretary to the justice minister, responded that there is wide social consensus around the phrase as it applies to institutions, and it “reflects sort of where we are as a nation, as a continent.”

Liberal MP James Maloney said that Fortin’s concerns about judicial independence could also be applied to the original bill, which Fortin supports. “We’ve crossed that threshold, Mr. Fortin,” Maloney said.

The legislation amends the Judge’s Act to require judges “undertake to participate in continuing education” on sexual assault and social context, and requires that the Canadian Judicial Council develop the training “with persons, groups or organizations the Council considers appropriate, such as sexual assault survivors and groups and organizations that support them.” It requires the Council to report to Parliament on when the seminars were given and how many judges attended.

The first version was introduced by former Conservative leader Rona Ambrose in 2017, but it stalled in the Senate in 2019 over concerns of judicial independence. It was largely rewritten in the Senate, mainly by Sen. Pierre Dalphond, a former Quebec judge, who scaled back some of the more intrusive parts of the bill.

However, procedural wrangling kept the bill from advancing and it died on the 2019 election call. Justice Minister David Lametti revived it in February as government legislation, but that bill also died when Prime Minister Justin Trudeau prorogued Parliament in August.

Dalphond told National Post that from what he understands of the amendments, they’re acceptable to him since they only mention systemic racism as one part of the social context, not the whole definition. He also said that in his experience, systemic racism is already an important part of judicial training. But he warned that Parliament must not go too far in attempting to direct the training or influence the content.

“The shorter the better,” Dalphond said about the legislation.

Asked for comment, Ambrose replied with a statement that did not mention the systemic racism amendment. “I know victims of sexual assault are thankful that MPs are working together to get this bill passed,” she said. “I hope it passes without delay.”

Lametti’s office also did not comment directly on the amendment, but said the justice minister “fully agrees with the need to take action to address systemic racism in Canada’s justice system.”

Many in the legal profession are deeply concerned about the precedent the bill sets. Gib van Ert, a lawyer who was executive legal officer at the Supreme Court of Canada from 2015 to 2018, wrote in Maclean’s in February that governments should not be legislating training for judges, because once it starts it might never end.

“Why not put a few more required courses on the judges’ curriculum?” van Ert wrote rhetorically at the time. “Why not train our judges in systemic racism, Indigenous laws and rights, climate change, national security and counterterrorism, border security and unlawful migration?”

His essay turned out to be prescient.

“Of course, judges should learn about sexual assault and systemic racism,” van Ert told the Post on Tuesday. “They already do, through their own judge-led training programs. The problem lies in the training being mandated by politicians. When people go to court they need to feel their judge isn’t just thinking and doing what the government tells them to. They need to believe judges are independent. I continue to think this is a bad precedent.”

Source: MPs amend judge sex-assault training bill to add systemic racism training, sparking new concerns

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 (…/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.


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.


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