Sunday, September 05, 2010

Judge in the dock

I admit that I have been almost instinctively with the side defending Manitoba Associate Chief Justice Lori Douglas. There seemed to be a snap reaction in several quarters that could easily be distilled down to: "Not very ladylike." The woman's reputation has been drowning, in fact, in a steaming media-created mixture of prurience, prudishness and sexism.

But Alice Woolley makes an interesting point in Thursday's National Post. There is a racial angle to this matter, she argues, that should not be ignored. In her words:

[T]his is not about Douglas. It is not even about whether she would be a good judge. It is about whether people appearing before her could feel confident that their cases were being heard fairly and dispassionately. If those people included a black man, or a white woman divorcing a black man, or a Mexican family dealing with a child apprehension case, those people could reasonably wonder whether the racial stereotyping that the website reflects is one that Douglas shares, and that will impact her judgment.

Interracial sex presented as a transgressive turn-on is, of course, hardly unknown in the pornoverse. And integral to that is the lurid racist imaginary that once got a lot of people lynched--the Black male as id-creature, an untamed sexual animal lusting after white women. Indeed one might wonder about a judge's state of mind if she were party to such notions and were passing judgement where "race"was at issue.

Pretty convincing. But in conversation, my co-blogger Marie-Ève raised an equally salient point. Should the judicial advisory committee generating recommendations for new appointments to the bench perhaps proceed a little further in their investigations? Should a proposed judge who has been active in the Catholic Church be rejected because he could not be neutral in the case of a gay defendant, or one in which abortion was a factor? Should a Jewish candidate be turned down because of an apprehension of bias if an accused Muslim terrorist were in her courtroom?

Judges are human beings, no more neutral in life than anyone else. In fact I'd be hard-put to define what "neutral" actually means, since one person's "neutral" is always another person's
parti pris. What we do expect is that, in their role on the bench, judges will recognize their own prejudices and preconceptions and consciously put them aside, considering only the evidence.

That takes an iron discipline that not everyone possesses: the selection process is intended to determine what candidates have that particular strength, essential to carrying out their duties. We have no reason to question Madame Justice Douglas' qualifications in that respect.

Part of the discipline is knowing when to step aside--if there is an actual or perceived conflict of interest or an apprehension of bias. But would we not be offended if defence lawyers routinely requested Catholic or Jewish lawyers to recuse themselves in the circumstances noted above?

At some point, of course, recusal might be called for--a judge's previous activity in a militantly pro-life lobby group, for example, or membership in the Jewish Defence League, could be sufficient to create a genuine concern in the case of some defendants. But Madame Justice Douglas' private sexual interests, which we should not conflate with her husband's, incidentally, don't come anywhere near this bar. And in any case, the question of recusal depends upon each case; apprehended bias in a specific instance is not the same thing as a general disqualification.

So we return, as it were, to the case at hand. And I would suggest that, having wrung every ounce of sensationalism out of this affair, the media and the chatterati should at this point do the decent thing--back off and let Justice Douglas get back to her judging. Ditto the Canadian Judicial Council, who, in effect, will have to choose between Victorian priggishness and good sense. Move along, in other words. Because there really isn't anything to see here: not even the photos.

UPDATE: Damian Penny reminds us that Canadian judges do not use gavels. Take the illustration. therefore, as figurative.

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