© 1991 Karen Selick

An edited version of this article first appeared in the June, 1991 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 The Myths of Affirmative Action for the Bench

I was one of 1,200 senior women lawyers in Ontario who recently received a letter from the Attorney-General urging me to consider applying for a judicial appointment.  The goal, said the letter, was that at least fifty percent of new appointments be women.  With attrition, eventually fifty percent of the bench would be women.

Imagine how my heart leapt with pride!  I was being asked to consider becoming a judge because I happen to be the owner of a vagina instead of a penis.  How complimentary! 

Isn't it wonderful that the Ontario government is going to use the same criterion for selecting judges that most rapists use in selecting their victims? 

What a great way to build up the self-esteem and public image of women: by trumpeting the government's apparent belief that women couldn't possibly succeed on their own merits, and need charity (okay, "preferential treatment") in order to gain the semblance of equality with men. 

Some people actually consider this act of flagrant paternalism to be a step in the right direction for women.  One is Michele Landsburg, a member of Ontario's Judicial Appointments Advisory Committee, the body that set this affirmative action policy in motion.  Ms. Landsburg is a columnist for The Toronto Star, and wrote one recent column extolling the virtues of this plan.

She seems to believe that "equal justice" requires every conceivable segment of society to be represented by a warm body on the bench.  Thus, we would need fifty percent women, a percentage of visible minorities, some disabled people, perhaps some gays, and so on.

There are several fallacies buried in this kind of thinking.  The first is that our existing complement of judges--mostly white, able-bodied, heterosexual males--are hopelessly, irredeemably prejudiced, and hence unable to dispense justice to anyone who isn't a member of that group. 

Aside from being a gratuitously racist and sexist assumption, this is also complete nonsense.  Many men with these characteristics have been strong supporters of affirmative action; otherwise, we probably wouldn't have such programs today.  I think those men are mistaken about the efficacy and consequences of affirmative action, but clearly, their intentions to eliminate racism and sexism are as genuine as Ms. Landsburg's.

A second fallacy is the belief that within each segment of society, all members of the group think alike, and more particularly, have the same concept of justice.  Thus, the reasoning goes, women can expect justice from women judges because they understand each other.

Ms. Landsburg and I are good examples of how wrong this belief is.  I have read her column many times, and cannot recall ever agreeing with anything she has said.  Although we are both white females from middle-class, educated backgrounds, our political convictions and our notions of justice are light-years apart.

She would probably not expect to receive justice from anyone, regardless of sex, whose philosophical forebear was Adam Smith.  I would definitely not expect to receive justice from anyone, regardless of sex, whose philosophical forebear was Karl Marx.

A third fallacy is the idea that no-one can possibly empathize with anybody else unless they have attributes such as race or sex in common.  For example, feminists used to allege that the law on abortion would be different if more of the judges were people who could get pregnant.

This demonstrates a rather narrow view of the scope of human imagination.  It really isn't necessary to experience first-hand all the joys and tragedies of humankind in order to appreciate someone else's situation.  Hasn't Ms. Landsburg or anyone else on that committee ever cried during a movie?  Do they figure they're the only people sensitive enough for that?

In any event, if it were true that you could get justice only from a judge who belonged to the same narrow segment of society as you, then just having minority representation on the bench somewhere within the province won't be enough to help minorities.  It would simply become a game of roulette to see whether you drew a judge who could be fair to you. 

The next step would have to be matching up judges with litigants according to their race and sex.  In criminal court, this would directly conflict with the goal of a half-female bench, since well over half the accused are male.  Which goal would prevail?

In civil cases, who would preside if the litigants were of more than one race or sex? 

No, if we really want justice to wear a blindfold, we'd better forget this quota system.  Instead, maybe we should blindfold the Judicial Appointments Advisory Committee. 

Here are some suggestions as to how it could be done.  Delete judicial candidates' names from their application forms and replace them by assigned numbers, just like when they wrote their law school exams.  Interview them by speakerphone, so that their race or disabilities are not visible.  Alter their voices electronically to disguise their sex.

This may not be simple or work perfectly, but quotas don't either.

Who could object to this idea?   Only someone who lacked confidence in the ability of their favoured group to succeed on merit alone.



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