The Times are today running a package on whether judges are too white, too male and too elitist? (I’d link if I had one, but paywalls mean I can’t). As someone who is too white, and male, I am going to focus on what is meant by being too elitist. Friend of lazy researchers, Wikipedia, offers this definition:
Elitism is the belief or attitude that some individuals, who form an elite — a select group of people with intellect, wealth, specialized training or experience, or other distinctive attributes — are those whose views on a matter are to be taken the most seriously or carry the most weight; whose views and/or actions are most likely to be constructive to society as a whole; or whose extraordinary skills, abilities or wisdom render them especially fit to govern.
There isn’t much doubt that the UK’s judiciary does have extraordinary skills, abilities and wisdom, and it’s very tempting to ask, especially if one is too white and too male: what’s wrong with that? And to answer that, one has to take a step back and ask what is the selection of these people based on? It is based on the accumulation of years of experience in a profession (usually the Bar) which prides it self – perhaps overly complacently at times I am told by some barristers – on being fiercely meritocratic and competitive. Again, it is difficult to see what is wrong with that. That is, until one begins to understand how people are selected for entry into the process and how that process reinforces particular notions of merit. The professions (rightly) seek excellence, but they create indicators of excellence based on achievement rather than ability. It’s an understandable approach but it is a flawed one.
Take A-levels, for example. Aptitude test research shows that students from state schools with similar or slightly poorer A-levels catch up with or outperform (in general) public school kids. Put another way, some of the educational advantage of public school evaporates when (say) Etonians get to Oxford. The problem is that, and this is especially true for law, many law schools tend to select students with AAAs and these universities act as the gateway to most jobs in the legal profession. There is little room for the state school student with AAB even though they are, in general, likely to be as good as or better than a student with AAA from a public school. Performance at A-level trumps ability to perform on the degree. It privileges wealthier students and it damages the interest of the profession. Interviews, unless conducted very carefully, are likely to make the situation worse.
These kinds of judgment litter the legal professions entry and promotion systems. In looking for excellence, experiences and achievements are noted as indicators of ability which are loaded against certain candidates. A friend of mine notes how Grade 8 Oboe, House Captainships and charity work all mark people out as made of the right stuff for [insert famous City firm]. I’m more impressed with someone who has worked down Lidl and still got AAB and a 2:1 even though they come from [insert your favourite run-down spot here]. We all know which one will get on, get the experiences and get that promotion. This is true even before one takes into account how work is allocated within firms and chambers and how families impact on women lawyers.
So what is wrong with elitism is that it is founded on a false construct. We (the Universities) picked a weaker cohort of students than we realised. Furthermore, merit is not determined solely or mainly by ones experiences and achievements. And that misjudgement on merit is reinforced as candidates progress through the system. Experiences and achievements indicate something about one’s abilities but they also indicate something about the environment from which one has come. A truly excellent legal profession would take these things more seriously and would take a significant step towards a more representative and even higher quality judiciary.