The day after the election of the 45th president of the United States, Bernd Zabel, a trial judge in Hamilton, Ontario, entered his courtroom wearing a baseball cap bearing the logo “Make America Great Again.”
Hamilton, a city whose declining steel industry has seen its economy transformed by a leading Canadian university and a vibrant wine region on its doorstep, has an increasingly diverse demographic including 30,000 muslims from South Asia and migrant workers from Mexico. These proud groups also have concerns about their treatment as participants in Canadian society.
Instead of laughing it off, the judge kept the hat on display beside him throughout the sitting. The first response to this gesture of some respected legal commentators, as reported in the Globe and Mail, was that it was disturbing but perhaps not warranting formal sanction by the Ontario Judicial Council. This muted response might be attributed to the widespread shellshock among Canadian jurists that an unfit candidate was elected to the United States’ highest office. It did not take long, though, for a complaint to be made to the Ontario Judicial Council. The fact is that Judge Zabel presides over a court in which a significant number of parties, lawyers and public observers come from the communities threatened by the zenophobic and misogynist rhetoric used in the electoral campaign.
Judge Zabel has already presided over the 2012 trial of a charge involving the accused punching a Sikh man and threatening to roll his turban down the street. In that trial, the judge found the accused guilty of the assault but refused to consider the threat racially motivated. The judge may not have considered, as has been widely reported, that Sikhs in North America suffer racially motivated attacks because they are mistaken for muslims. Understanding such dynamics is, however, an element of ethnocultural sensitivity that is increasingly an expected attribute of judicial competence. Can a judge who does not understand the fear of those attacked by the Republican candidate demonstrate empathy for complainants who seek the protection of the law against racial insults?
Some might also argue that the judge’s display of support for the new U.S. president was just about a campaign hat, and that we also ought to consider the judge’s freedom of expression, akin to the wearing of religious head coverings in court. We should not employ the same logic to ban personal attire that does not purport to impose a particular world view on others in the courtroom. The judicial robes are, as a matter of function, a covering – a depersonalization of the office-holder. A hijab is also a covering for the sake of modesty and not a symbol – those of us who are not Muslim might misconstrue it as a symbol. Turbans are an interesting variant on this theme. The original purpose behind turbans was to promote cleanliness because Sikhs, like many cultures in the world, discouraged men from cutting their hair. It then became a means of promoting equality at least among Sikhs. One cannot categorically tell from someone wearing one of these forms of head covering that they hold a particular opinion, even of the religious or cultural group with which the head covering is identified.
What distinguishes Judge Zabel’s conduct is that the hat worn in court and left on the bench represents a basket (a loaded word from the campaign that was) of preconceptions about law itself. The campaign represented by that hat was all about law, or how it should be manipulated to impose a popular will at the direct expense of others. It was all about locking someone up by mob vote. It was about stacking the Supreme Court to repeal Roe v Wade. It was about the 2nd Amendment. It was about rounding up undocumented immigrants on a mass scale. It was about taxing migrant worker remittances. It was all about being smart in not paying income tax and using bankruptcy law to get rich. It was about tearing up international agreements. It was about dishonoring treaties of military alliances if they do not turn a profit for the U.S. treasury.
Making America “Great Again” meant you get repeal laws you don’t like or bend them in a way you do like, without regard to public policy. It is really the disregard for the rule of law that makes Judge Zabel’s gesture such an unthinking act for someone we in Ontario have entrusted to enforce the laws we, the people of Ontario, have made to build and protect a just society.
Finally, the candidate wearing the hat said he would accept the legal result of the poll if it was in his favour and say that it was rigged if it was not in his favour. Among all of the attacks on the rule of law and acceptance of legal responsibility, this has to be the most disturbing of messages represented by the campaign hat. Judges presiding over courts and applying the laws of Ontario and Canada must speak to different audiences, and most importantly to the losing side of a court dispute. If a judge of our law courts cannot understand the importance of this feature of judicial office, the judge should consider his own fitness to remain in it