2. “Against Overreliance on Nose-Counts” by Judith Maute

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March 19th, 2012

Thank you to the Fordham Urban Law Journal and Monica Fennell for this opportunity to revisit my earlier thoughts in English Reforms to Judicial Selection: Comparative Lessons for American States?[1]  The English selection reforms focused primarily on expanding diversity for a more inclusive diversity, which were of particular interest to me.  Ms. Fennell raises three main points to which I now reply.

First, my Article questions the overreliance on numerical nose-counts, to which Ms. Fennell responds by asking how progress could otherwise be gauged.[2]  Second, my Article drew upon the foundational point in American outsider jurisprudence, that “the personal is political,” and rejected as essentialist a routine expectation that judges be expected to empathize and reflect the viewpoints of the demographic group whose physical attributes the judges share.  Ms. Fennell challenges me to reconcile my claim that acknowledging “political, professional, and social connections influence both process and outcome” with my ultimate conclusion that restored public confidence in the courts requires a shared public belief that judges “exercise legitimate authority, undistorted by personal or partisan preferences.”[3]

Third, Ms. Fennell asks me to identify the modern personnel practices in the new United Kingdom system, which I optimistically predicted would achieve meaningful diversity and might be used advantageously in the United States.[4]

Before addressing these points, I must emphasize the fundamental differences between the U.K. and the U.S. in their very different cultures, histories and respective judicial roles.  First and foremost, class has played and continues to play a critical role in English society and its legal system throughout history.  The upper branch of barristers traditionally has drawn from the upper crust of English society (and its colonies), and the highest status barristers continue in their dominant role in the highest U.K. courts.  The lower branch of solicitors traditionally drew from a wider cross-section of society, including less privileged socioeconomic groups, women, blacks, and ethnic minorities.  Over the years, the solicitors have pushed for incremental rights of audience to appear in different levels of courts and eligibility for different levels of judicial office.  Despite periodic calls for fusion of the two branches, important differences remain in terms of prestige and access to the inner sanctum of the highest levels of the judiciary.[5]

Second, the two judicial systems serve quite different functions in their respective nations.  In the U.S., ever since Marbury v. Madison,[6] American state and federal courts have consistently played a central role in hotly contested political disputes, with the power of final judicial review firmly residing in the U.S. Supreme Court on federal questions and otherwise in the respective state supreme courts.  By contrast, the doctrine of Parliamentary sovereignty gave relatively unfettered authority to the legislative branch to decide political issues and reverse judicial decisions with which it disagreed.  In the past, the highest level of U.K. civil courts primarily decided private disputes with limited political ramifications, and the disputants often came from similar upper class backgrounds and had resources available for expensive advocacy services by barristers and solicitors at the highest tiers of the profession and judiciary.  Disputes involving middle and lower class people on employment, personal injury, landlord/tenant, and criminal matters tend to be resolved at the lower tiers of the judiciary where the less privileged and more diverse solicitor branch has made significant inroads on obtaining rights of audience and judicial positions.[7]  The narrow role of senior judges is undergoing change; increasingly they must “determine highly sensitive political and social issues and . . . draw on human rights principles . . . to inform their judgments.”[8]  The changing role makes who sits on the top courts and their claims to legitimacy ever more important.[9]  Entrenched hierarchy among the senior judges empowered to make final recommendations and perceived technical restrictions on appointment have continued to limit the ability of the lower level judges to rise up through the ranks for appointment to the highest courts.[10]

Finally, the complex history of the U.K.’s legal system has demonstrated glacial movement, with all reform attempts predictably thwarted by resistance from tradition, vested class interests, and reluctance to move from the status quo.  Judicial selection reforms continue to move at a snail’s pace.

U.K. Guidance for U.S?  Too Soon, Not Yet.

I address the last question first.  In retrospect, my optimism in 2007 was premature.  Legal realists have long cautioned that the law as written may bear little relation to law in action.  Knowledgeable and informed observers in the U.K. are disappointed.  The Constitutional Reform Act transferred judicial authority from the House of Lords to the newly-created Supreme Court of the United Kingdom on October 1, 2009.  The only person adding any diversity to the twelve person court is the one female, Baroness Hale of Richmond, whose personal and academic background reflects a non-traditional career trajectory and middle class upbringing.[11]  Hale’s personal and professional background resembles that of U.S. Supreme Court Justice Ruth Bader Ginsburg.[12]  Kate Malleson, a noted scholar on the U.K. judiciary, finds that twenty years of attempted regulatory reforms have “failed to bring about significant substantive change” in the composition of the judiciary.[13]  The U.K. Supreme Court and the highest courts that preceded constitutional reforms had never “included a judge from a black or minority ethnic background . . . .  [T]he proportion of women in the [Supreme] Court will be lower than in 2000, at 7 per cent.”[14]

Measuring Progress Beyond Simple Nose-Counts, and Addressing the “Personal is Political” in Judicial    Appointments.

Here, I address Ms. Fennell’s first two points.  The short answer to the first question is that overreliance on nose-counts of diverse physical attributes can be essentialist and fail to achieve the greater concern of bringing varying perspectives to the law.  Regarding the second question, recognizing that the “personal is political” in judicial appointments can improve public confidence that judicial authority is undistorted by personal or partisan preferences.

The U.K.’s constitutional reform efforts seek to modernize the legal system, making it more fair and accessible to all.  The Supreme Court’s current Equality and Diversity Strategy aims, inter alia, to reflect fully the diversity in society, value the contributions of all, address behaviors and attitudes that contribute to or reinforce perceived or real threats of inequality and discrimination, and promote equal opportunity for all.[15]  It defines seven diversity groups: race, gender, gender identity, disability, age, religion or belief, and sexual orientation.[16]  In promoting equality of opportunity and staff diversity, the strategy seeks a wide reach to have fair and non-discriminatory employment policies and processes across the spectrum.  This includes people with part-time and alternative working patterns; caretaking responsibilities; and non-traditional skills, experiences, education levels, and social backgrounds.[17]  It is important that judges be drawn from “a wide range of backgrounds and life experiences [so they can] bring varying perspectives to bear” when making discretionary judgments or addressing public interest considerations.[18]  To automatically equate physical attributes with meaningful differences in life experiences and backgrounds ignores reality and does not ensure inclusion of population groups traditionally excluded from participation in power, where their inclusion would help bring about a judiciary more reflective of society.

The concept of nose-counting, or ticking off diversity boxes, assumes that there are clearly defined racial, ethnic and gender identities, and it implies that individuals who fit those identities fulfill the greater policy concern of having a judiciary that reflects the demographics of both the legal profession as a whole and the greater society.  Although there is continued utility in keeping track of diversity in numbers, it would be unfortunate to expect that each person bearing physical attributes suggesting diversity is a fungible stand-in for the perspectives and life experiences of that group.  We have come to understand that gender cannot be reduced to binaries of male or female.  The melting pot of modern society has produced many persons who claim multiple racial and ethnic identities, and their mixed heritages may also combine different faith traditions or belief systems.

As discussed earlier, in the U.K., the socioeconomic class of one’s family of origin may be the single most predictive aspect of professional opportunity and achievement.[19]  Women born into families of wealth, prestige, and barrister lineage have begun to enjoy opportunities similar to their male counterparts.[20]  Likewise, Indians, Pakistanis, and Kenyans—— barristers and solicitors with similar wealth, power, and prestigious lineage drawn from their affiliation with former English colonies——might have improved access to judicial opportunities, although none yet have achieved appointment to the highest courts.  Despite possible differences in skin color and gender, their viewpoints and legal perspectives may be practically indistinguishable from the Oxbridge social elite who currently dominate the highest courts.  Their future appointments may be nominally diverse, but in fact they further replicate the homogeneous class clubbiness.  Unless those who stand to get appointed because of their high social standing undertake significant efforts to connect with and empathize with the real life legal problems experienced by lower status persons, including women, sexual minorities, blacks, ethnic minorities, the legal discourse among collegial benches will not be enriched by diverse perspectives.[21]

A judicial applicant’s contribution to diversity is not strictly visible; it is a qualitative gradient of views and experiences.  Use of numerical quotas or targets for diverse categories does not assure the kind of intellectual, cultural, and affiliational group sensitivity or empathy to ensure a wider exchange of legal perspectives improving the quality of justice in ways that reflect society as a whole.  While this remains a very sensitive and debatable issue, there is judicial and jurisprudential recognition that no one person can be essentialized as primarily female or male, black or Hispanic, rich or poor, or any other personal attribute.  That is the important lesson of outsider and “multiple consciousness” jurisprudence——recognizing that each person comes to the law with multiple identities that cannot be conveniently reconciled or ignored by contending that one specific identity outweighs all of the others.[22]

What Next?

Law, like life, is an ongoing work in progress.  Sometimes, in retrospect, hoped-for reforms fail because of unexpected glitches or failure to see the bigger challenge.  After allowing time for experience under the new reforms, there is room for further reflection that may require only minor tweaks or alternatively more ambitious cultural change and a widespread political commitment to bring about that change.  Nothing happens quickly in the U.K.; constitutional reform and changing centuries of traditional means of judicial selection is no exception.  Those urging greater meaningful diversity are relative outsiders, in terms of professional stature, class, and demographics.  Metaphorically, they are knocking at the doors seeking admission for themselves and others to be allowed to enter the inner sanctum.  The traditional insiders are naturally resistant to major change from what is known and comfortable.  Hilary Sommerlad proposed three key changes to promote a more diverse judiciary.[23]

First, there must be a complete overhaul of judicial selection panels addressing their composition, the amount of influence particular members wield, and training on the meaning of merit.[24]  Second, the selection process should be more open to evaluating lower level women judges and how their career paths could not follow the traditional male career trajectory.  Caregiving and other family responsibilities limit ability to relocate or serve full-time in inflexible judicial structures.[25]  Third, there should be a clear path for a career in the judiciary, with formal training and progression, as is done in some other European countries.[26]

To achieve more than fleeting change in judicial diversity, politicians will have to do more than tinker at the margins with legislative changes to appointment commissions.[27]  A more fundamental reappraisal of the appointment criteria is needed to expand access to solicitors’ appointments to high courts beyond merely those fortunate people from well-to-do families, who were educated at public schools (in the U.K., this means private) and Oxbridge law schools and have family connections to the most elite judges and barristers.[28]


   * William J. Alley Professor of Law, President’s Associates Presidential Professor, The University of Oklahoma College of Law. The author gratefully acknowledges input from her colleague, Professor Brian McCall, who practiced several years in London as a foreign legal consultant with the international law firm of Dechert LLP, and Brett Cook (The University of Oklahoma College of Law, J.D. Candidate 2012) for research assistance.

**  Suggested citation: Judith L. Maute, Against Overreliance on Nose-Counts, 39 Fordham Urb. L.J. City Square 81 (2012), http://urbanlawjournal.com/?p=586.

[1]. 34 Fordham Urb. L.J. 387 (2007).  This Article was published as part of a Symposium primarily focused on judicial selection in state courts, but also included a comparative component.  The Symposium occurred a few days after the new U.K. Judicial Appointments Commission began to assume authority, and the Fordham Urban Law Journal published the Article less than a year after the initial transfer of authority began April 3, 2006.

   [2]. See Monica A. Fennell, Beyond the City Square: Fishing in Wider Pools without Surroundings, 39 Fordham Urb. L.J. City Square 11, 14-15 (2012), http://urbanlawjournal.com/?p=402.

   [3]. Id. at 15-16.

   [4]. See id. at 16-17.

   [5]. See Judith L. Maute, Alice’s Adventures in Wonderland:  Preliminary Reflections on the History of the Split English Legal Profession and the Fusion Debate (1000-1900 A.D.), 71 Fordham L. Rev. 1357, 1358-59 (2003).

   [6]. 5 U.S. (1 Cranch) 137 (1803).

   [7]. See generally Gary Slapper & David Kelly, The English Legal System 215-30 (9th ed. 2008) (discussing appointment standards for different levels of courts); id. at 230-35 (discussing  judicial training, including that on equal treatment and discussing research findings on perceptions of fairness and equality of treatment of ethnic minorities in the criminal courts).

   [8]. Kate Malleson, It’s Time to Court Women, The Times, Mar. 31, 2011, at 69.

   [9]. Id.

  [10]. Rosemary Hunter, Equal Justices Initiative, Appointment of New Supreme Court Justice——A Missed Opportunity, The Barrister, http://www.barristermagazine.com/archive-articles/issue-46/appointment-of-new-supreme-court-justice-%E2%80%93-a-missed-opportunity.html (last visited Dec. 23, 2011).

  [11]. Baroness Hale shares with her High Court colleagues a stellar Oxbridge legal education and qualification as a barrister. Chancellor’s Biography, Univ. of Bristol, http://www.bris.ac.uk/university/chancellor.html (last updated May 27, 2010).  Traits besides gender that distinguish her from the others include her middle class background as a child of school teachers, attendance at a non-fee paying school (i.e., not a private elite high school), and eighteen years in the legal academy specializing in social welfare and family law with only a short, part-time practice as a barrister. See Dan Tench & Laura Coogan, Baroness Brenda Hale:  “I often ask myself ‘why am I here?’”, The Guardian (Sept. 16, 2010, 18:15 BST), http://www.guardian.co.uk/law/2010/sep/16/uk-supreme-court-judiciary?INTCMP=ILCNETTXT3487.  In 1984 she was the youngest person and first woman appointed to the Law Commission. See Biographies of the Justices, The Supreme Court, http://www.supremecourt.gov.uk/about/biographies.html (last visited Dec. 31, 2011).  In 1994, she was the first academic and public servant to be named a High Court Judge. See Univ. of Bristol, supra.  In 1999, she was the second woman promoted to the Court of Appeal. See  id.  Hale is also an outspoken feminist and proponent of recruiting a more diverse judiciary. See Tench & Coogan, supra.  By contrast, until her 2003 appointment to the then highest domestic court, “Lords of Appeal in the Ordinary,” the highest female judge, Dame Elizabeth Butler-Sloss, came from a prominent family, was the sister of a Lord Chancellor, and was the daughter of a previous High Court Judge. See Maute, supra note 1, at 408 & n.109.  That is, but for her gender, her personal background was homogeneous with her elite judicial brethren. See id.

  [12]. See Fennell, supra note 2, at 12, n.5.

  [13]. Lizzie Barmes & Kate Malleson, The Legal Profession as Gatekeeper to the Judiciary:  Design Faults in Measures to Enhance Diversity, 74 The Mod. L. Rev. 245, 245 (2011).  This article contains a discussion of the legal and institutional defects in the attempted regulatory reforms that may explain why the current appointment system continues to replicate historical patterns of appointment by designating responsibility to public bodies like the Judicial Appointments Commission, as opposed to the source of inequality.  This “soft target radicalism” places the public body in a “regulatory bind”——being obligated to seek equality and diversity goals with limited practical ability to achieve them. See id. at 247, 257-59, 261, 270.

  [14]. See Malleson, supra note 8.

  [15]. See The Supreme Court of the United Kingdom, Equality and Diversity Strategy 2010-2012, at 1 (2011), http://www.supremecourt.gov.uk/docs/equalitydiversitystrategy.pdf.

  [16]. See id. at 2.

  [17]. See id.

  [18]. Advisory Panel on Judicial Diversity, The Report of the Advisory Panel on Judicial Diversity 2010, at 16 (2010).

  [19]. See supra note 11 and accompanying text.

  [20]. See supra note 11 and accompanying text.

  [21]. For example, there has been a longstanding debate about whether the gender of women judges makes a difference, despite persistent lack of empirical data demonstrating any link between gender and judicial performance.  U.K. feminist and law professor Rosemary Hunter argues instead that “while women judges may not necessarily ‘make a difference’, it is more reasonable to expect feminist judges to do so.” Feminist Judgments: From Theory to Practice 6 (Rosemary Hunter et al. eds., 2010) (citing Rosemary Hunter, Can Feminist Judges Make a Difference?, 15 Int’l J. Legal Prof. 7, 30 (2008)).

  [22]. See Cynthia Grant Bowman et al., Feminist Jurisprudence: Cases and Materials 151-76 (4th ed. 2011) (discussing anti-essentialism, with excerpts from Patricia Cain, Trina Grillo, Berta Esperanza Hernandez-Truyol, and Mari Matsuda).

  [23]. See generally Hilary Sommerlad’s Submission to the Lord Chancellor’s Advisory Panel on Judicial Diversity:  The Top Three Changes Which Would Promote a More Diverse Judiciary (2009) (on file with author) (see also http://www.law.qmul.ac.uk/eji/research/index.html).

  [24]. See id. at 1-2.  

  [25]. See id. at 2-3.  

  [26]. See id. at 3-4.  

  [27]. See generally Sundeep Iyer, The Fleeting Benefits of Appointments Commissions for Judicial Gender Equity 17 (Jan. 5, 2011), http://www.law.qmul.ac.uk/eji/docs/51455.pdf (showing empirical analysis of short-term results produced by U.K.-style commissions).

  [28]. See generally Michael Blackwell, Old Boys’ Networks, Family Connections and the English Legal Profession (unpublished Ph.D. dissertation, London School of Economics & Political Science), available at http://papers.ssrn.com/sol3/papers.cfm?abstractid=1809876.