Whiter than white?
Last week, The Times published an anonymous letter written by eight judges calling for an inquiry into ‘discrimination, bullying … and the system for appointment and promotion of judges’.
They cite the ‘simple fact that white candidates are more likely to be successful when applying for judicial positions’. In the ‘upper echelons of the judiciary’ ‘women, ethnic minority and other “non-traditional” candidates with real expertise in lower courts are passed over all too often’ in favour of ‘“traditional” backgrounds … who are well-connected and often appointed directly into senior posts from outside the judiciary’. Retired Supreme Court Justice Lord Jonathan Sumption was appointed from the Bar to the Supreme Court in 2011.
As to why this is happening, the letter refers to ‘secret soundings’ -- a process whereby the Judicial Appointments Commission (JAC) receives anecdotal material from judges about a candidate’s suitability for a judicial post:
‘The process can be used to allege for example that a certain candidate is what may be called a “troublemaker” or in effect “won’t fit in”. Such a hidden process, based on hearsay and rumour, is a classic breeding ground for discrimination, not only against able candidates from non-traditional backgrounds but also in favour of socially well-connected candidates who do not alter the current makeup of the judiciary’.
The judges state that ‘some of us are aware of examples where a judge raising concerns about diversity or conditions at work are undermined, belittled or accused of being mentally unstable, and not fit to be a judge. Some have been called dangerous to society.’
It is often the case that individuals who call for diversity are less visible in positions of power — be it women, ethnic minorities or disabled people. Labelling people who advocate for diversity as ‘mentally unstable’ quells their voice sustaining otherness and inferiority compared to the status quo.
This is clearly problematic because if your world is comprised of people who share your characteristics and a system reinforces that, it becomes easier to treat those who do not share your characteristics as lesser. It may not even be seen as prejudicial because ‘it’s just the way it is’.
People holding power and influence because of a position of authority, race, gender or because they are non-disabled, have a duty to recognise the impact of that power. It is trite to say that power ought not be used in a way which worsens existing inequalities, particularly not in a profession which strives to foster the confidence of those in court.
In public facing work, a judge’s interaction with an advocate is relative to the credibility ascribed to that advocate by a jury. For example, eye-rolling and sarcasm in response to a female advocate’s submission not to follow a proposed course of action will undermine her credibility. As might regular intervention when handling witnesses. On occasion, I have observed the ease with which some barristers pursue a line of questioning — their thoughts linking freely and organically, untrammelled by concern that their questions might be questioned. My experience is that male advocates do not have to deal with this as much as women, particularly when women convey assertiveness and fearlessness in court. It is as if these qualities remain unconventional in a profession still largely (white)-male dominated. And so, it was perhaps unsurprising to read in the letter that the authors:
‘have personally witnessed judges performing an imitation of a witness of Chinese origin using racist words and gestures, another judge making disparaging remarks about an Asian advocate, and asylum seekers ridiculed for their accounts of persecution based on their race. The same judges boasted in private about how many such applications they had refused.’
Whilst my examples may seem anodyne to those in the letter, their incremental effect should not be overlooked. It is a truth universally acknowledged that there is a retention issue. 32% court judges are women; 26% in the High Court and above. Low retention rates and the concerns within the letter are not mutually exclusive.
We cannot wait until minority groups are better represented before imbalances even out. It falls to us now to challenge bias - both explicit and subtle - or at least not to use it as leverage to win a case.
There are many judges who display exemplary qualities daily toward all court users whilst dealing with a significant caseload under pressure. When I have been treated first and foremost as ‘Counsel’, as opposed to wondering if ‘it’s because I’m a woman?’, I have remembered it and felt empowered. I simply wish I did not remember those occasions because of that.