Attack of the Clones: Supreme Court keeps its white male first eleven
27 February 2013
Baroness Helena Kennedy has argued that judges have a tendency to clone themselves when choosing successors. It is hard to avoid that impression in the Supreme Court, which kept its white male first eleven in place yesterday by appointing three new justices: Lord Justice Hughes, Lord Justice Toulson and Lord Hodge. The sole woman amongst 12 justices of our highest appeal court remains Lady Hale. There are no black or Asian judges, not have there ever been.
How did this happen? The answer is we don’t know and won’t ever find out. Around two thirds of the Supreme Court’s case load are public law and human rights, decisions which affect millions of people. Yet appointments are made by an opaque commission consisting of senior judges.
The stark fact is that the public has more say over the appointment of X-Factor judges than over those who sit on country’s highest court. The only Parliamentary “scrutiny” of is through private consultation with the Lord Chancellor, currently Chris Grayling, who has a veto but has never exercised it as far as we know. There are no public committee hearings nor can we read the minutes of selection commissions meetings.
On this appointment round there have been rumours, reported by journalist Joshua Rozenberg, that the Government told the commission to think again when it suggested three men for the jobs. The court denied that this had led to a delay. We are unlikely to find out the truth.
The best justification for the current system is that by excluding outside forces such as Parliament and the public it maintains judicial independence. Indeed, one of the key skirmishes surrounding the Constitutional Reform Act 2005 was the influence of the Lord Chancellor, a role which was to be combined for the first time with the Secretary of State for Justice, over Supreme Court appointments. But as Lady Hale says in her excellent recent speech, the upshot of the almost total removal of political influence (the Lord Chancellor retains a veto) was the withdrawal of the politically accountable Parliamentarians from the selection process.
The current system is bad for two reasons. First, even if judicial appointments are in reality made on merit, the selection process gives the strong impression of a smoke-filled rooms at an old boy’s club. This must discourage some candidates and risks alienating the court from large sections of the public.
And as Lady Hale points out, we are currently languishing at bottom for the proportion of women in the highest courts of the 34 countries in the OECD. Lord Sumption, one of the current justices, has mused that “it would be foolish to pretend that [judges] were not occasionally influenced by unconscious stereotyping and by perceptions of ability moulded by their own personal experiences”. Lady Hale responds, witheringly, that she would “drop the occasionally“. And she would know.
As Professor Alan Patterson observed in his fascinating 2012 Centre Forum paper Guarding the Guardians:
It is in no way disrespectful to the judges themselves to recognise that it is deeply problematic in a democracy for one branch of state to have anything like a decisive voice in choosing their own colleagues and successors.
There are important debates to be had over positive discrimination and the relative importance of different backgrounds. But as the [Lady] Neuberger Advisory Panel on Judicial Diversity concluded that in a democratic society the judiciary should reflect the diversity of society. We must ask whether a small clique of senior judges is best placed to build that future.
The second reason the system is bad is that in a closed appointment process, the public is given no insight into the personality, background or politics of the 12 most important judges. It is a convenient fiction that the UK’s judges have no personal politics. The reality is that judges are human beings with the ordinary range of prejudices, although it would be hoped with a greater than average capacity to put them aside when making decisions. A less opaque appointments process, perhaps even with committee hearings transmitted live on the internet, would provide the public a way of getting to know not just the candidates but also those making the final decisions. Greater scrutiny would in my view lead to better appointments decisions.
I was struck yesterday by how few media outlets reported that a quarter of our Supreme Court had been replaced in one day. Understandably, many lawyers (and I imagine judges) are happier with a judiciary which is shielded by shadows to one which is in the fierce gaze of the public such as the politically skewed US Supreme Court. But there must be a middle ground. The Supreme Court has done more than any other domestic court to bring its hearings to the public in innovative ways, through live transmission, judgment summaries Twitter and YouTube. That court is now looking increasingly like a constitutional court, however it presents itself. In light of this, public tolerance for the current appointments system, and the continuous cloning of the senior judiciary, may run out sooner than many think.
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But dissents are an especially poor measure of political skew — it only measures intra-bench polarization and legal/policy differences among the judiciary. Where, as here, the problem is monolithic groupthink in the institution as a whole due to self-perpetuation, dissents don’t tell us very much.
For the bench may be wholly removed from the policy and legal views of most people, or even the other branches of government, and it wouldn’t be captured by dissents.
As for the ABA, they are increasingly irrelevant and regarded as partisan by American conservatives who feel they systematically downrate Republican nominees (they may prefer white men — but they prefer white men who are Democrats). Yet the ABA is just one marginal lobby in the confirmation process. What matters is the vote of the Senate. You neglect to mention that the U.S. Supreme Court has had a black Justice since 1967, a woman since 1981, three women currently (one of whom is Hispanic), Jewish and Catholic jurists, and astonishingly, not one white Protestant male.
The proof is in the pudding. Ethnicity and religion are only crude measures of intellectual diversity, and are in any case secondary to the judicial ideology of the nominee; the underlying lesson of the U.S. system is not that it guarantees ethnic/religious/minoritarian diversity, but that such diversity is a benign outcome of the fight for intellectual primacy on the courts: the race or religion of a nominee matters less than the legal ideology he or she brings to the table.
Race or minority status may help sell the nominee during the confirmation process, but it is the vehicle, not the destination.
This perpertual cycle of appointment of the same old men in grey suits is neven going to end unless, we take active steps in reforming judicial and public appointments. It is no accident that the recently appointed supreme judges have drawn bland on women and ethnic minority candidates; the question needs to be had as to whether the selection of men in grey suits means that at present the legal profession in this country has no other merited candidates? If the answer is no, then our system, the profession and the people have surely lost out for the failure is within not without.
The ‘convenient fiction’ you refer to is, possibly, one of the most significant barriers to progress on the diversity of the senior judiciary. It has been argued (http://www.halsburyslawexchange.co.uk/can-the-media-influence-the-mood-of-judges/) that the principle of judges operating insulated from their experiences, backgrounds and beliefs tends to defeat the advantage of a representative bench.
I note how Deaf and disabled people are omitted from the process and even discussion altogether. Selective diversity is not diversity.
Here’s an example of the legal profession’s bad attitude towards Deaf people:
http://www.robwilks.com/2012/09/30/the-law-is-an-ass/
And the Supreme court recently took the foolish decision that it’s permissible to discriminate against disabled volunteers. The highest court in the land only earns my contempt.
An interesting thread. One suggestion has been to copy the method of selection used by conductors in orchestras: http://lexislegalintelligence.co.uk/intelligence/blawg/2013/02/hiding-behind-a-screen-a-judicious-approach/
A couple of points – while any court makes decisions that are “political” in the sense that by deciding a public law case one way or another they are favouring one political view over all the others, the USSC is “political” in the sense that judges are appointed by members of political parties on the assumption that they will vote on party lines in appropriate cases – Bush v Gore being one of the more extreme examples. This is absolutely not the case with the UKSC and was not the case with the HL. Amusingly it often backfires in America as, protected by security of tenure, some judges promptly alter their political stance after their appointment and start favouring views associated with the other side.
Secondly, I would hesitate before endorsing the ECHR approach too much. Lord Lester of Herne Hill, hardly a rabid opponent of the court, has criticised its appointments process as too political. Others have questioned the calibre of some of the judges and in the recent Eweida case some of the dissents betrayed views that would shock many of the court’s strongest supporters. Also, there is a superficial fairness about the ECHR’s composition, in that every member state gets to appoint one judge each, but that leads to tiny political enclaves making the same contribution as the likes of Britain and Germany, both of whom have (comparatively) enormous, sophisticated legal resources.
Sure – there are plenty of criticisms that can be directed at the system of appointment to the ECtHR, but on the particular issue raised by this blog (gender equality), I reckon critics should be big enough to acknowledge a world-leading success before moving on to grumble about other things.
On your last point, tiny enclaves, what else would you propose? Until nation states are abolished, we’re stuck with one-country-one-judge: this is how international courts are done. And, by the way, under the Convention small countries are free – if they wish – to nominate a judge from anywhere they like – including from “enormous, legally sophisticated” Britain and Germany. And it has happened in the past.
Do you have any examples of Member States electing judges not from their own? That’s interesting!! :)
There are important points here about the transparency of the process, and the extent to which a court which, as you rightly say, has become akin to a constitutional court, should have some democratic oversight in appointments. However, it seems rather facile to begin with the old refrain (true as it is) ‘Why o why no women or ethnic minorities?’ (which we get after every appointment from the Guardian and every other media outlet) without pointing that for historical reasons (i.e. the position of women and ethnic minorities wishing to become lawyers forty years ago) there are few judges in either group senior enough. There may be arguments for more democratic oversight but, given this basic historical fact, lack of diversity is not in itself a good argument that the present appointments system (to the Supreme Court) is flawed. That is, even a system more influenced by politicians/proponents of positive discrimination would sorely struggle to increase diversity, at least so far as ethnic minorities are concerned. I concede that there are more women LJJ from which to choose but would really want to say to (say) Laws LJ: ‘Don’t bother applying because it’s got to be Arden LJ?’ Sadly, neither got a spot. But doesn’t putting names to the debate help clarify the point that the task should be to find the people most likely to contribute to the development of law, not a rather ugly game of sectional politics justified by bogus and moderately offensive arguments about ‘different perspectives’.
I would disagree with anon, in that I’ve argued that, at least insofar as dissents are a guide, there is no evidence for political judging in the HoL/UKSC (see http://journals.cambridge.org/abstract_S0007123412000270 ); it’s also worth noting that even in the United States, open and transparent involvement of the profession in a more overtly political process also results in white men being favoured: see this recent post at the Monkey Cage blog, “The ABA prefers white men”: http://themonkeycage.org/blog/2013/02/28/the-aba-prefers-white-men/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+themonkeycagefeed+%28The+Monkey+Cage%29
It is unacceptable in today’s society that there is not more scrutiny of appointments to what is now, as you say, a constitutional court. I think that it will inevitably change, the real question is where we go? I certainly think that committee hearings is the way forward, for starters at least …
Unfortunately, a flawed process from the outset. Also, we do not know what ‘guidance’ (if any) Mr Grayling gave the Selection Commission – section 27(5) of the CRA 2005. Until this process was introduced we had the secret soundings and taps on shoulders approach. Now we have a deeply opaque appointments process. Hardly an improvement !
“Understandably, many lawyers (and I imagine judges) are happier with a judiciary which is shielded by shadows to one which is in the fierce gaze of the public such as the politically skewed US Supreme Court.”
The UK Supreme Court and (previously) the Law Lords are no less skewed; the only difference on HM’s side of the Atlantic is that the legal fraternity is less transparent and honest with itself than the Americans are.
Just for the record… the Court which “sits above” the UK Supreme Court on human rights matters, the European Court of Human Rights in Strasbourg, is streets ahead on gender balance: currently, 18 of its 47 members are women – almost a third! And in the case of this court, parliamentarians are not just involved in the selection process, they actually elect the judges. Maybe there are some lessons in there somewhere…
Great post, Adam, although I personally remain confused on why s.29 is labelled a right to ‘veto’ by the LC (Grayling). Is it not simply a right to ask them to reconsider (twice) their selection, i.e. a formal variation of what Rozenberg reported the Government did here?