British lawyers and the British public are angry with Lord Sumption’s urging to go slow on sex equality to avoid the ‘appalling’ consequences to our legal system that could come from striving to get more women on the bench.
How out of touch can a Supreme Court judge get? (That is not a trick question.) Many people are appalled by the things Sumption explicitly says. I am as troubled by what he implies and—especially—by what he presupposes.
Sumption says that: the reason there are so few women judges in the UK is that female lawyers make a ‘life style choice’ to avoid the kind of work that would make them eligible to become judges; that the English Bar that provides such work is ‘a very meritocratic institution’; and that fifty years would be a short time to wait for sex equality on the bench. The first two claims are false or misleading; the third is repugnant.
Sumption implies that: there is not now a large enough number (NB: not percentage) of women making that ‘life style choice’ for things to improve any sooner, and that there is serious suggestion of a remedy that could lead to ’85 percent’ of appointments going to women. I’m sure those claims are implied and not asserted because to assert them would call attention to their absurdity.
Sumption presupposes that: judicial office is something that should only come ‘at the end of a successful career at the Bar’. One should do it as a kind of personal sacrifice, out of loyalty to ‘a long cultural tradition which is genuinely based on public service’.
Never mind that, in Britain as elsewhere, desire for a judical appointment is as often based on personal or political ambition as on noblesse oblige. More important is this:
Why presuppose such things about a judicial career? Shouldn’t judging be a job whose pay and conditions enable people to do it without having already banked a fortune as a successful lawyer? Why presuppose that a certain kind of practice is a desirable, let alone necessary, qualification for appointment to the senior judiciary? Sumption himself says that this kind of practice involves ‘frankly appalling’ working conditions. So why presuppose that a high-stress, narrowly focused, socially prestigious, financially lucrative career–often in London–is an ideal qualification for being a judge?
When we think of the appeals courts in particular, and the sort of decisions needed there—decisions about delicate questions of law that could reasonably go either way, decisions that require a sense of judgment and justice, decisions that profit from broad knowledge of our society and from ordinary human empathy—these are not things for which high-pressure, high-salary, super-lawyers have any special qualifications. Perhaps the contrary.
Brilliant judges—including brilliant women judges—could easily be found amongst in-house counsel, lawyers who went into business, lawyers in public service or in small firms, perhaps even amongst law teachers in universities.
The presumption that the tiny circle of our elite Bar is the best or natural training ground for judges is one of the things that entrenches the sexism of our courts. The main problem is actually not the attrition of women from the careers that Sumption thinks make for good judges; it is presuppostion that those careers make for good judges.