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3:06pm on Wednesday, 6th October, 2010:
In the UK, our most senior judges are appointed, on the whole, for being very, very good at their job. Their personal lives are irrelevant; I couldn't tell you any details about any of them apart from what is visibly apparent (eg. they're old). Why should I care about it? I want them to be fair and knowledgeable; if they have political or personal opinions then they should keep them out of their job. In general, they do, too.
However, there are some murmurings of complaints that senior judges aren't represetantive of those upon whom they sit judgement. Uh? Why should they be? They make judgements independently and impartially — it shouldn't matter what their age, gender, race nor sexual orientation is. If it did matter, they shouldn't be judges!
Where there might be a case would be on equal opportunities grounds, if people are not making it to the top because of their personal circumstances. I don't think we'll be seeing for many years large numbers of judges who went to non-selective schools, for example. That's an unfairness in the system, though, not in the judges themselves. A candidate for the new Supreme Court can't help having been born into privilege any more than I can help having been born into lack of aforesaid, and shouldn't be penalised for it. I'm not a fan of positive discrimination, because it's still discrimination... Besides, although today we may have large numbers of white, male judges, most people who sit law degrees right now are female, with a disproprotionately large number coming from an Asian background. 70 years from now, we could have a Supreme Court full of women with an Indian ethnicity. In theory, though, the judgements they lay down will be no more fair nor unfair than those we get at present. I shouldn't matter who the individual is; what's important is whether they can do the job or not.
Yes, I am taking a while to make my point here, sorry...
In the USA, Supreme Court appointees are put through intense personal scrutiny. Obscure remarks they made 25 years ago are dredged up for explanation. They are appointed based on how in line their personal politics are with the government of the day. They are sometimes chosen because they are representative of some racial group, or to balance some other perceived imbalance. To British eyes, it seems astonishing. If it were indeed the case that only people with background X can understand laws that concern people with background X, then all our judges would be former criminals. Still, that's the way it is in the USA. It's certainly more open than the UK system, I'll give it that. There's also a feeling that its make-up should reflect that of the American people, insofar as nine people can do that.
Except, not entirely...
Bizarrely, there is one area that seems to be taboo when discussing appointments to the Supreme Court: religion. I don't know why this is, but whereas politicians will argue that someone's sexuality may be a problem or that their being Hispanic is cause for concern, their religion doesn't appear to be a factor at all. Yet America is a deeply religious country, founded in part by religious refugees. If religion doesn't get mentioned, it must somehow be tacitly off limits — perhaps because relgious freedom is seen to trump even freedom of expression?
Weird. It's like this place is a foreign country.
Oh, what prompted me to write this was an article in today's USA Today, which listed all nine members of the US Supreme Court. For each one, it gave their name, place of birth, age, religion, family and either a fact or a quote. The religions were: Jewish, Jewish, Jewish, Catholic, Catholic, Catholic, Catholic, Catholic, Catholic.
Maybe if they put a Moslem or an atheist on the Supreme Court, that would bring religion into the equation...
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