Friday, 8 July 2011

On diversity and the judiciary

I read this article about how grossly unrepresentative the judiciary is and I'm having a think

I am torn. Which seems odd. After all, the judiciary is grossly unrepresentative. It is extremely white, extremely male and, (though not mentioned by the article since we often fall through the cracks when discussing discrimination and representation) extremely straight as well as being overwhelmingly cis and able bodied..

Until relatively recently, to be a judge you had to be married. Sound bemusing? It was a rule brought in in the 1970s to expressly prevent gay people becoming judges. It was openly admitted that that was the reason for the rule.

When I left law school, the judiciary wasn't on my mind. In fact when I went to law school I knew it would be impossible. I also chose my law school on the understanding that I wouldn't be a judge and I would have little chance becoming a barrister if I wanted to be an openly gay man. I cynically – and realistically – assumed these doors would be closed and didn't try waste my time dragging at a locked door that would be so unlikely to open for me.

There have only ever been 2 openly gay judges in the High Court. One of whom has now moved off to the various echelons of EU law.

And we know that because of the various blinkers of privilege, this nearly all super-privileged judiciary is going to have big freaking holes in their understanding. We've seen in decisions and in processes that marginalised people of all stripes tend to get a rawer deal in the courts than the privileged, ye gods we know that.

So, why am I torn?

I'm torn because while I think we need, desperately need, a more diverse judiciary, I am also extremely leery about greater political interference. Because politics and the judiciary make me very very leery. I'd rather not judges have to consider elections, have to consider pleasing the party in power or even having to please the majority of the public when making their decisions. I admit, and it may be cynical and snobbish of me, or it may be from years of staring at juries who collectively I wouldn't trust to look after a goldfish let alone decide someone's future, that I have very little faith in the “will of the people.” They people are silly, they're easily manipulated, they're easily frightened, most of the news they receive is filtered through Murdoch and pictures of women with no tops on or stories about what/when/who Katie Price is doing.

And the people are prejudiced and privileged. Oh so very much. This is why we jump up and down and celebrate whenever we see a poll number creeping over 50% when it comes to anti-discrimination laws or gay marriage, etc. Because it's a milestone and it's usually a RECENT milestone. Frankly, the judiciary is sometimes ahead of the “will of the people” (or, at least, the will of the people as interpreted by the governments they elect) and we've had no small number of victories around the world from the judge's bench before we got them from the ballot box.

And I don't want to see judges penalised for making unpopular but necessary decisions or right decisions. How many people wanted the Jamie Bulger killers locked up for life even though they were kids themselves? In fact, based on the will of the people, how much fuller would our prisons be, since the prevailing Sun-based opinion of the nation tends to be very much “lock 'em up and throw away the key” for just about any crime. And we can look across to the US and see that NOM is trying to unseat judges in Iowa for daring to vote in favour of gay rights – that is... nervous making. Yes yes it is.

And, for that matter, I have no real confidence that this government – or, indeed, any government, is going to be especially good at encouraging greater marginalised representation. Oh, they'll include some nice public tokens – who will then toe the party line and be good little loyalists and won't give a damn if the rest of their marginalised groups are so frequently thrown under the bus they end up with tire marks indelibly marked on their back. And we know that such political interference is not going to be limited to ensuring a more diverse judiciary – you open that box and you better get Pandora to slap it closed again awffffullly quickly because who knows what we're going to let out.

So, more diversity? Yes. Please gods yes. But political involvement? Hmmm... not so much.