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Hiring someone on merit and not discriminating while doing it is, of course. how things should be. With the latest additions joining the Supreme Court there will no doubt be a debate over quotas and how to get a better representation of the profession and society.
There is another way that is rarely used.
In his book Blink Malcolm Gladwell deals with training your unconscious mind properly to make the correct decisions in a variety of situations in the ‘blink of an eye’. The book also talks about how unconscious prejudice can mess up this process and an example he uses in his conclusion is how orchestras chose musicians and the gender biases that used to be commonplace in the selection process.
Auditions used to be open and the conductor would get the possible new members to play a piece or series of pieces. There was a pervasive view that certain instruments were 'masculine' e.g. the trombone and women just didn't have the capacity or stamina to play them as well as men so they never got picked. However as concert musicians unionised 30 years ago in the United States, they pushed for fairness in hiring and a formalized audition process to stop conductors ‘playing favourites’. This led to screens being placed between the musician and the judging committee so all judgments were based solely on what was played and heard.
Now that musicians are judged on the sound they make and no other basis then the number of female musicians playing in the major US orchestras has increased 5 fold in the last 30 years.
So here's my point. Perhaps what we need is not affirmative action but some sort of virtual screen that judges potential judicial candidates solely on merit and nothing else. The first thing that has to happen is for those involved in judicial appointments process to confront their prejudices and the second is to solve the problem. I have read Baroness Hale’s lecture and I do understand that the judicial appointments process is long and complex and perhaps should not be compared to an audition for an orchestra. However, in both situations talent must be allowed to shine through.
I suggest that at various points in the long process of appointing judges there should be these virtual screens placed between candidates and those seeking to appoint them.
One crucial skill of a potential judge is to be able to deliver clear, correct judgments based on the law and the facts placed before her. Could there be a way for judicial candidates to ‘shadow’ a case through a court and then anonymously submit their judgment to the Appointments Committee for review. That judgment would be judged solely on the quality of the writing and judgment presented and nothing else. If what was written had sufficient merit then the candidate is allowed to proceed further down the appointments process.
Large parts of the judicial selection process cannot be ‘screened’ in this way but there must be points along the road where a judicial skill can be judged in such a way that the decisions are truly merit-based.
As Gladwell says at the end of Blink "the fact that there are now women playing for symphony orchestras is not a trivial change. It matters because it has opened up a world of possibility for a group that had been locked out of opportunity... orchestras now hire better musicians and better musicians mean better music".
Now if you substitute the courts for the orchestra and lawyers for musicians what do you get? Better justice.
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