There has been growing concern over a perceived lack of gender and ethnic diversity in the higher ranks of the judiciary in England and Wales and on the Supreme Court. Last month, Lord Reed of Allermuir, the president of the Supreme Court, highlighted that four per cent of senior judicial appointments go to black, Asian, and minority ethnic candidates. Lord Reed, 64, said that he hoped a judge from an ethnic minority background would be promoted to the court during his six-year tenure. He called the lack of diversity at the senior level “a situation that will become shameful if it persists indefinitely”.
Last week the Supreme Court said in a notice announcing the recruitment process, that the selection commission in charge of appointments would encourage applications from those who would increase the diversity of the court.
Judicial appointments are notoriously difficult. A bench of judges is supposed to reflect society. I dare say that if you look at the senior bench of many commonwealth countries you will struggle to see that reflection. It was mostly white and male until several years ago. Then female appointments predominated as part of the gender equality catch-up. Thereafter cultural equality provided some diversity to the highest courts for the same reason.
Twenty-one new District Court judges were appointed in January 2020. Ten of the new judges were Māori, eight Pākehā, one Māori/Chinese, and two Samoan. Twelve of the new judges were women. I think that any observer cannot deny that in the past 15 years much more has been done to improve judicial diversity than at any previous time in New Zealand judicial history. However, as I write, only 32 per cent of all judges are women. Can we do more to embrace diversity and not only for gender?
Increasing diversity and achieving equality by only putting a thumb on the scales is a very blunt way, and potentially a difficult approach as it may perpetuate the very prejudice whose effects it attempts to ameliorate. The US Supreme Court Chief Justice, John Roberts, put it plainly: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” That simple mantra can apply to any discrimination on judicial appointment.
Identifying who will be a good judge is not a gut decision of "you'll know one when you see one", nor is it entirely a product of science or social engineering rather it should be based on merit. Meritocracy is like democracy: whatever its problems, it sure beats the alternatives. In a 2008 Waikato Law Review essay, Morné Olivier argued that merit should remain the primary criterion for selection as judicial legitimacy demands it. However, the question of what constitutes merit is most important. It has traditionally been understood to relate to legal knowledge and experience, including professional qualities and ability. Is it time to give the merit concept a broader meaning to include the demonstrated ability and knowledge to judge in our diverse society?
In her 2019 Dame Sylvia Cartwright address “What Right Do We Have” republished here with kind permission and the consent of The New Zealand Law Review, our Chief Justice raises the difficult issue of judicial legitimacy in a fast-changing world and suggests how important it is that the judiciary be connected to and representative of the community, both in its make-up and through the values it applies in its judgments. As the Supreme Court of the United Kingdom may find diversity of appointment can provide part of the answer. The ideal is that each judge merits appointment including the required knowledge to judge in a diverse society.