The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity

“The Legal Profession as Gatekeepers to the Judiciary: Design Faults in Measures to Enhance Diversity” is a 2011 article by Lizzie Barmes and Kate Malleson evaluating efforts within the United Kingdom to enhance gender-based judicial diversity. Their findings indicate that diversity intervention initiatives are often targeted not at the sources of gender disparities, but at “public bodies that the state is most able to reach.”[1] Further, Barmes and Malleson note the increasing diversity of candidates for judicial appointments—in experience, gender, and race. The legal profession has expanded such that those who may be eligible for appointment to the judiciary do not necessarily have advocacy experience. Additionally, more women—particularly women of color—have pursued legal careers in the decade leading up to this paper’s publication. Barmes and Malleson are quick to point out, however, that the distribution of women working across legal professions is not equal from occupation to occupation. They note a “clustering effect” where women are more likely to work in family law and are less likely to hold the position of partner at firms.[2] Barmes and Malleson argue that the judicial selection process as implemented by the Judicial Appointment Commission (JAC) has been limited from within; that is, appointments are only made from the pool of people who apply.[3] This of course, ignores systemic homogeneity in the legal profession and severely restricts the scope of the JAC’s diversity initiatives. Barmes and Malleson have offered a thorough, if not critical analysis of attempts to increase judicial diversity. However, this critique is appropriate. As they note in their conclusion, the judiciary should reflect “even the major identity groups in society over which judges exercise power.”[4]

  1. Barmes, Lizzie, and Kate Malleson, “The Legal Profession as Gatekeeper to the Judiciary: Design Faults in Measures to Enhance Diversity,” The Modern Law Review74, no. 2: 247.
  2. , 252.
  3. , 255.
  4. Ibid., 271.

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