Representation and the Judiciary: Does an Increasingly Diverse Judiciary Benefit the Community?

Anna Coyle

The judiciary is the pinnacle and face of the legal profession. Often, in high profile cases, it is not the image of the victorious legal team which is publicised by the press, rather the decision maker. Judges, in such power, must be impartial and independent, thus questions may be raised over the impact increased diversity has on fairness in decision-making. However, improved descriptive representation has impacts beyond the delivering of judgements.

We may feel that we have moved from the need to actively foster diversity in the judiciary, women and people of colour are now far from abnormal in positions of power and status. However, one must keep in mind it is little over one hundred years since women were allowed to enter the legal profession. The ‘tap-on-shoulder’ method of selecting judges, inevitably fostering judiciary of like-minded and lookalike individuals has thankfully been eradicated by the introduction of the Commissioner for Judicial Appointments, accompanied by various subsequent reports encouraging the promotion of diversity. The need to advocate for the speeding up of diversity, however, only points out the shortcomings the new appointments system has. Escobar theorises that if those who select the judiciary were held electorally responsible, there would be an increase in diversity. I do not advocate for such a system; however this is emblematic of the general societal desire for a more diverse judiciary.  

 Despite calls for diversity in the judiciary, there is uncertainty around how increased diversity would actually influence decision making, and whether judges would have the ability to make decisions more representative of their own communities even if they wanted to, being constrained to the confines of the law. For example, judges sensitive to cases of sexual assault may not engage in acts of rape shielding which would infringe the right to a fair trial, no matter how much their moral compass may compel them. Furthermore, expecting an increase in diversity to result in a certain change in interpretating the law, delivering judgements and cultivating courtroom culture, is to define their personality to a single characteristic, a female judge may still come from a privileged background and exhibit classist or racist underlying prejudices. This is not to discredit the impact merely increasing the visible diversity of the judiciary has on improving the credibility of the judiciary to the naked eye, however, this ‘window-dressing’, as Lady Hale labels it, requires accompanying improvements of the products on sale in the window.

Concerns are frequently raised over the potential for bias by aiming to increase a diversity of experiences in the judiciary. For example, in the litigation following the 2000 presidential election, the only formal challenge of bias was against an African-American judge. However, potential some degree of bias from lived experiences is vital in delivering fair judgements reflective of society, potentially judges with limited experience of hardship find it harder to incorporate it into their own judgements. In a poll referenced by Chen, “45% of African Americans polled believed that African Americans experience a lot of prejudice, whereas only 27% of white people agreed.". It would seem unfair to wholly discredit judges who may be influenced by their lived experience because it seems that such accusations of bias are predominantly levelled against those that have experiences anomalous to those of a ‘traditional’ judge. Brett Kavanaugh, the US Supreme Court Justice, was held to be the pinnacle of fair, independent, unbiased judgement in his appointment to the highest court in America, this is despite speeches openly admitting to the influence of his strong Catholic faith in his role as a judge. I am not here to assess the place of those who allow a strong faith to influence in the judiciary, but one must question whether the commendation of fairness and impartiality would similarly be awarded to a justice who openly spoke about allowing their own experiences of police violence or abortion access to influence their judgements.

Constrained by the limits of the law, benefits of a diverse judiciary may be best seen in a change of culture. Chen notes that a judiciary that remains reminiscent of the historically defined, white, well-educated, ‘well-bred’ male runs the risk of the perpetuation of “detrimental stereotypes”, both of who can be a judge, but also towards those who come before the judges.

The role of a diverse judiciary in ‘civilising’ the existing judiciary out of such negative attitudes, and actively mentoring the next generation with their progressive attitudes. There are some issues with such an attitude, firstly, one cannot simply impose such a duty on the diverse appointments. An extra burden imposed by virtue of otherness to the stereotypical judge is unfair entirely, implying that a justification for their appointment is for their ability to enact social change rather than their ability as a judge. Secondly, this ignores the potential for new ‘different’ judges to conform to the prevalent culture rather than go against the grain. There is no consistent evidence to show that more women in the judiciary impacts judicial behaviour significantly. The judiciary, even post reform to appointments, retains the image of an ‘old-boys club’, those new to the profession may fear exclusion and thus refrain from picking up others on unacceptable attitudes.

Despite the risk of diverse appointments failing to change the culture in the way one may envisage, and the inability to work outside the confines of the law, the potential is there for fostering better relations with the community through lived experiences. During the US trial against Nassar, the gymnastics coach found guilty of multiple sex crimes, the presiding female Judge Aquila gave the opportunity for every victim to speak, commending them on their bravery with extraordinary vigour. Similarly, Lady Hale in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] “tried to put into words the experience of bearing and rearing a child from the woman's point of view”. Obviously, there is nothing to say that another female judge would have made the same decision, or that a male judge would not have followed suit. However, Lady Hale and Judge Aquila’s sensitivity shown through the accommodation and attitude towards the victims demonstrates that the confines of the law do not prevent new judges with novel attitudes from improving the culture of courtrooms.

The impact of diversity in the judiciary is inherently limited by the confines of the law and pervasive attitudes within the judiciary itself. However, diversity remains crucial in making the judiciary more accessible and accommodating, becoming overall more representative of our communities. The effect of diversity may not be instant, they cannot change laws they disagree with upon appointment, but may be seen as a seed which will eventually grow as the older, more conformist judges, fail to be replaced.