A. Data and Methods

The heart of the data for this study consists of court observations and semi-structured interviews with magistrats and other professionals gravitating around the judiciary, primarily collected from September 2015 to June 2016. I conducted both courtroom observations during public hearings and behind-the-scenes court observations. The courtroom observational data span over forty hearings held in four courtrooms located in the Paris region and in the South of France. I observed a variety of hearings, including small claims, criminal trials, and adoption hearings. I assumed the magistrats' spatial perspective, sitting behind the bench next to the judge or the prosecutor I was shadowing. I sat in internal meetings, preconferencing gatherings, and in open-space offices where judges, prosecutors, and their staff were going about their business. In addition, I conducted twenty-six interviews with magistrats Footnote ³ and nine with other legal actors working in law enforcement, as attorneys, teachers, or candidates applying to the judiciary.

Due to the difficulty of reaching the very private and elite world of the magistrats, I did not select a sample that is representative of the French judiciary in terms of demography, assignment, or position in the hierarchy. Among the twenty-six magistrats I interviewed, fourteen had served as judges for their entire career, six as prosecutors, five as both judges and prosecutors, and one was still a trainee magistrat wishing to embark on the prosecutorial track. Fourteen were male and twelve, female. The vast majority of participants were white and straight: only four magistrats identified as belonging to a racial or ethnic minority (one black, one of North African descent, one of South Asian descent, and one multiracial) and one openly identified as gay. Among the nine legal professionals I interviewed, all identified as straight. Seven were male, and two were female. Two identified as Maghrebi, a diffuse term referring to people of North African ancestry, while the other seven were white. From a couple of initial contacts, I used the snowballing method to recruit more participants, interviewing those judges, prosecutors, and other legal actors who were referred to me and made themselves available to talk. The resulting group of thirty-five participants is a small, unrepresentative sample, which allows no claim to generality. This limitation does not diminish the study's contribution, however, as my goal is not to provide an estimate of judicial diversity itself, but an analysis of legal actors', in particular judges' and prosecutors', beliefs about whether and how race, ethnicity, and sexual orientation inform their work.

B. Identity Interplay

There has been much discussion about the interplay between the social identities of the researchers and those of the people they study (Sherman Reference Sherman2002; Allen Reference Allen2010). My own white, straight, middle-class privilege undoubtedly influenced the study's research design, data, and the interactions I had with those I interviewed and spent time with during my fieldwork. Sociologist François Bonnet has emphasized this observer effect in his ethnography of race talk among French security personnel, pointing out that “it is the interaction between respondents and me which constitutes the data” (Bonnet Reference Bonnet2014, 1281). Similarly, I examine respondents' race, ethnicity, and sexual orientation avoidance talk in reaction to the raced, classed, and gendered researcher I embody. This is both a strength and a weakness. It is possible that the participation of other investigators in the data collection, particularly LGBTIQ and/or researchers of color, would have provided corroborative triangulation—or not.

At the same time, perhaps because the research pertained to diversity, my own social identity proved ambivalent, or at least unstable, in the eyes of some study participants. On the one hand, because of my first and last name, my physical appearance (my skin is white and I wore the standard uniform of conventional professional femininity during the fieldwork—conservative pantsuits occasionally enlivened by necklaces and flowing scarves), and because I introduced myself as working under the auspices of established French and US research institutions, I personified the dominant heteronormative white racial frame (Warner Reference Warner1991; Feagin Reference Feagin2006). On the other hand, when I raised the issues of racial oppression and discrimination as well as homophobia and heteronormativity, I provoked more than once defensiveness and charges of being (or thinking like) a foreigner.

For instance, after I had questioned him about his self-presentation as “a white catholic that lives in a bourgeois residence,” a judge riposted: “Are you an Israelite?” (interview with 12, Senior Judge 2015). The use of the outmoded word “Israelite,” which designates an origin, rather than a religion, struck me as symptomatic of some respondents' discomfort with the topic of racial and ethnic diversity.Footnote ⁴ Despite my very French first name and native French proficiency, a few other participants presumed that, or inquired as to whether, I was a US citizen—I am in fact a dual French-US citizen. Though he had read my CV, which marks me as unmistakably French, a judge marveled at my command of French. Even after I had assured him that I was French and had grown up in France, he kept saying, including to his colleagues: “But you have an accent. Doesn't she have an accent?” (field observations 2016). This judge may have a point. Far from neutral, my understanding of France's normative practices and ideas has been shaped by my experience of living and working for a decade in the United States. I became a peculiar observer of French legal mores; homebred, yet a foreigner in my homeland, inasmuch as I came back “laden with concepts, values and visions derived” (Frankenberg Reference Frankenberg1985, 442) from US legal and political culture.

That said, I interpret the urge to foreignize me when probed about their own social identities as reflecting participants' struggle to make sense of my inquiry. Some subjects were genuinely baffled by my interest in racial, ethnic, and sexual diversity in the judiciary, which by their own avowal, they had never thought about. An obvious way for them to rationalize my questioning would be to infer that I was myself a diverse other. How else could one be interested in such a bizarre topic? This distancing could also have been meant to disqualify my questions by highlighting that they originated from someone who does not know what she is talking about because she is not French.

After presenting the basic features of the French judiciary as well as my data collection methods, the rest of the article examines the three avoidance strategies I identify in judicial discourses on diversity.

A. Measuring Diversity

The French judiciary is a national, unitary institution staffed by a cadre of career judges and prosecutors recruited, trained, and employed by the same centralized agency and dispatched throughout the country. This study includes both judges and prosecutors, given that the French judicial function is defined more broadly than in the United States, encompassing two types of magistrats, the prosecutors and the judges (Bell Reference Bell2010, 52–58). Technically, prosecutors are judges (and vice versa), as both sets of professionals attend the same national school for the judiciary, enjoy the same civil servant status, and transfer back and forth throughout their career between judgeships and prosecutorial posts (Cohen Reference Cohen, Langer and Sklansky2017).

Significant practical and normative barriers exist in studying judicial diversity in France. As one of the judges quoted above intimated with her question—“Won't you run into trouble with the CNIL?”—not only is data collection on sexual orientation not common, but it could be illegal. French law prohibits the collection and analysis of “personal” data—defined as including not only sexual orientation and identity, but also race and ethnicity (Code pénal, art. 226-19). Even the census does not collect such information in mainland France, with the consequence that the precise racial and ethnic makeup of the French population remains uncertain (Oppenheimer Reference Oppenheimer2008; Simon Reference Simon2008).

Not all forms of diversity are taboo, however. Two strands of judicial diversity—gender and socioeconomic diversity—are widely discussed, dominating research agendas and reform initiatives (Mounier Reference Mounier1986; Boigeol Reference Boigeol1993; Miaille Reference Miaille, Guglielmi and Haroche2005; Remiche Reference Remiche2015). The judiciary actively collects data on magistrats' genders and socioeconomic status, seeking to make progress toward an organization where magistrats are recruited among broader social and educational backgrounds (rather than predominantly from the urban middle classes) and where women accede to top judicial positions on a par with men.Footnote ⁵

By contrast, race, ethnicity, and sexuality remain officially invisible. As I noted in the introduction, no study exists on the racial, ethnic, and sexual composition of the French judiciary. A few publications discuss the personal demographics of criminal defendants and litigants, but not magistrats' races and ethnicities (Pager Reference Pager2008; Terrio Reference Terrio2009; Wyvekens Reference Wyvekens2013). As for sexuality, as Leslie Moran (Reference Moran2006, 567) has noted, in various common law jurisdictions, “[d]ata and scholarship relating to sexuality in the context of the judiciary is very limited. No jurisdiction has official data on the sexual diversity of the judiciary and none has plans to change this state of affairs.” In the French context, as elsewhere, this gap is yet another symptom of the invisibility to which sexual minorities are often relegated, as discussed below. However, the lack of information on (and interest in) the judiciary's racial and ethnic diversity is all the more surprising given that research and reform initiatives on the topic have become mainstream elsewhere.

One of the people I interviewed, a self-identified judge of Tunisian descent, was so exasperated by the French judiciary's lack of interest in measuring judicial diversity that she took the matter in her own hands. She endeavored to estimate the corps' composition based on her colleagues' first and last names, finding only 1.5 percent of foreign-sounding names.Footnote ⁶ Though questionable from a methodological perspective,Footnote ⁷ this approximation is at least indicative of how little diversity certain magistrats believe exists in their ranks. Other research subjects validated this low figure. A white former chief prosecutor still involved in continuing judicial education gauged that he had met fewer than twenty black magistrats throughout his four-decade-long career (interview with 1, Retired Chief Prosecutor 2015).

To put these estimates into perspective, in the United States, where racial and ethnic data are collected by the government as well as by other public and private entities, we know that in 2016, people of color made up 38.7 percent of the population (US Census Bureau 2016) and 12 percent of the lawyer population (American Bar Association 2016). As of 2014 and 2015, respectively, it was estimated that less than 20 percent of state judges and 16.9 percent of active judges in the federal judiciary were people of color (George and Yoon Reference George and Yoon2014; Duff Reference Duff2015, Appendix 3). The US judiciary is still far from descriptively representing the American population but, compared to the French, it is making strides. France's population is informally estimated to include at least 9 percent Maghrebis, 6 percent blacks (Ndiaye Reference Ndiaye2008, 59), and 2.2 percent Asians, suggesting that the judiciary is completely at odds with the society it serves. The discrepancy between the magistrats and those accused or convicted of criminal offenses is even more stunning. Although the magistrats are overwhelmingly white and of Christian backgrounds, most incarcerated inmates belong to racial and ethnic minorities (Khosrokhavar Reference Khosrokhavar2004, 279–80; Jobard and Névanen Reference Jobard and Névanen2007; Schneider Reference Schneider2014, 131, 193; Fassin Reference Fassin2015).

B. Cultural and Judicial Attitudes

Well-known cultural attitudes conjoined with the magistrats' professional identity may explain not only the dearth of race, ethnicity, and sexuality data on French judges and prosecutors, but also the apparently widespread belief that these identity traits are irrelevant. Despite the colonial and racialized foundation of the French state as a white nation in contrast to colonial subjects (Gafaiti Reference Gafaiti, Stovall and vanden Abbeele2003; Le Cour Grandmaison Reference Le Cour Grandmaison2009), official representations of the past have taken colorblindness and indifference to differences to be the defining traits of the French republic, a position often referred to as republican universalism. According to this credo, since the Revolution of 1789, France has embraced the values of liberty, equality, and fraternity, dismissing racial and ethnic differences as irrelevant (Schor Reference Schor2001, 43). This foundational myth rests on two interrelated abstractions: that of the nation and that of the individual. The nation is proclaimed by the first article of the 1958 Constitution to be “one and indivisible,” recognizing equal citizens, “without distinction of origin, race or religion.” As for the individual, historian Joan Wallach Scott (Reference Scott2004, 34) has shown that “[t]he ability of any citizen to stand for (to represent) the nation came from the fact that political individuals were understood to be abstracted from their social attributes (wealth, family, occupation, religion, profession),” to which I would add gender, gender identity, sexual orientation, religion, race, and ethnicity.

This deep-rooted understanding of French cultural identity has shifted in the last decade with the introduction of antidiscrimination policies, though premised on an explicit rejection of racialized and sexualized understandings of social personhood and the preservation of the legal fiction that France recognizes only individual citizens, not groups or communities (Mazouz Reference Mazouz2017). According to this worldview, performing nonracism and inclusion implies that one abstains from recognizing or naming racial and sexual differences. As Mathias Möschel (Reference Möschel2014, 3) has argued, by refraining from using racial categories, universalists have assumed that racism and the perpetuation of the idea that biological human races exist will be avoided. Similarly, in his study of French security personnel's race talk, François Bonnet (Reference Bonnet2014, 1281–82) noted that “[t]he problem for French respondents is that straightforward designations of minorities sound racist, regardless of the intentions of the speaker. … As a consequence of colour-blind speech norms, French respondents cannot use straightforward words for minorities such as ‘Arabs’ or ‘North Africans’.” The judge of Tunisian descent mentioned above echoed this diagnosis, lamenting, “that's the problem in France; as soon as you speak of ethnicity, it looks like you committed a sacrilege” (interview with 14, Judge 2015).

This colorblind universalism is specific neither to France (Hernández Reference Hernández2013, 1–15) nor to the judiciary, but it is particularly salient in a public institution devoted to the defense and preservation of the French legal and political order. The recent report commissioned by the prime minister on discrimination in access to public employment says nothing about judges and prosecutors (L'Horty Reference L'Horty2016), underlying the judiciary's exceptionalism at a time when equality of opportunity is increasingly demanded in the public sector. In the judicial context, diversity talk would be all the more “sacrilegious” in that it conflicts with judges and prosecutors' longstanding self-perception as anonymous cogs in the judicial machine. It is not only that magistrats buy into the universalist doctrine according to which government officials “abstract” their particularities to speak for the people as a whole, but also that the judicial ethos excludes minoritarian or pluralist interests.

Legal culture may be a significant factor: while in the common law world, judging is understood to involve law creation, allowing for judicial agency, in the civil law tradition, where judges are not as readily recognized as lawmakers, there is less room to admit that personal identity influences judicial roles. In France in particular, as Mitchell Lasser (Reference Lasser2004, 37) has shown, the official portrait “depicts the French civil judge as the faithful agent of the statutory law. Montesquieu states, in a passage endlessly quoted by French legal academics for over two hundred years, that judges should be ‘the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor.’” French legal professionals conceive the judiciary as a disembodied, neutral entity in which magistrats are homogenous workers objectively administering the law. Concurrences and dissents are prohibited. When they speak or write publicly, the magistrats are neither supposed to be distinguishable from the statutory law nor allowed to express identifiable or personal opinions. They do not use the first-person singular “I” in their judgments (which are not called opinions, but “arrêts,” i.e., literally, stops), speaking as “The Court” in the third-person singular (Lasser Reference Lasser2004, 37).

Deviations from this disembodied persona are interpreted as biases. A senior female judge who has the reputation of being very progressive declared that one of the main challenges currently facing the judiciary is “what is the impartiality of a magistrat? … I think that all magistrats have emotions and opinions and we live by the myth—but I'm in the minority to hold this view in the judiciary—that we are perfectly impartial from the moment we put on our gown” (interview with 24, Senior Judge 2015). The established conception of judicial impartiality requires conformity to the dominant heteronormative, white racial frame, which determines a certain type of behavior as the model for how every magistrat should act. Any comportment or identity diverging from this frame becomes a form of partiality or bias, in particular identifying as or being categorized as a sexual, racial, or ethnic minority.

The only openly gay judge I met confided that “in the French construction of the judicial office, being LGB would be a form of partiality because we are the mouth of the law; it has nothing to do with the judgment. We aren't supposed to be pro-gardening or pro-anything” (interview with 25, Judge 2016). Similarly, nonwhite races and ethnicities are construed as particular interests potentially in tension with the judicial function. In May 2015, the liberal satirical weekly Le Canard Enchaîné revealed that a trial judge had been denied a case involving Moroccan pensioners of the French rail operator (SNCF). Over 800 Moroccan railway workers claimed that for decades they had been the victims of systemic discrimination, involving different employment status, pay, advancement scale, and inferior retirement plans. What was the justification for refusing to assign the case to the judge? According to the newspaper, “she was pushed away for the sole reason that she was, like the petitioners, of Moroccan origin … her department head feared that her ‘Moroccan ancestry’ would jeopardize her ‘impartiality’” (Simonnot Reference Simonnot2015).

While French judges and prosecutors are willing to talk about the diversity of the people whose cases they adjudicate, the judiciary's professional self-image seems to protect it from the cognitive dissonance to be expected from its avoidance of diversity talk among its own ranks. As professionals thinking of themselves as expert, neutral decision makers in charge of mechanically applying black-letter law, they adhere to the notion that one of their central professional skills is precisely that they are able to “abstract themselves” from any embodied experience along the axes of race, ethnicity, and sexual orientation. As the next section argues, this pluralism anxiety is particularly manifest in the language used by magistrats and other legal actors.

A. Not Naming

When asked about racial and ethnic diversity, some respondents simply refused to name specific minorities, repeatedly using the third-person plural personal pronoun “they” instead. The use of “they” emphasizes the clear separation between an implied solidary collective “we” comprised of (presumably) white magistrats and a permanently alien group of others. The “us-them” dualism indicates that race solidarity and insularity are very much present in the judiciary, even among well-meaning, progressive magistrats. Thus, a white judge active in the left-wing magistrats' union (syndicat de la magistrature) and known for her efforts at reforming penal policies stated that she did not know how to name “them” (interview with 9, Court of Appeals Judge 2016). She used a variety of euphemisms, talking about “certain categories of population,” “other populations,” or the “question of the origin of magistrats” (interview with 9, Court of Appeals Judge 2016). Yet, toward the end of our meeting (and perhaps prompted by my straightforward use of racial and ethnic categories) she proved to be one of the few white judges to note that the judiciary is predominantly “white,” with “very, very, few Maghrebi and blacks” (interview with 9, Court of Appeals Judge 2016).

Several other magistrats not only refused to name races and ethnicities, but also denied the legitimacy of these categories, professing actively to refrain from thinking along these lines. When this happened, I insisted on using unmistakably racialized words in my follow-up questions such as “white,” “black,” “Asian,” or “Maghrebi.” Several subjects persisted in evading the question, answering, for example, “I don't know. I'm not the person to ask. Honestly, I avoid asking myself questions from this angle, but there are some [i.e., nonwhite judges and prosecutors]” (interview with 7, Court of Appeals Judge 2016). My probing led to an awkward exchange with a recently retired, white chief judge. Obviously startled by my vocabulary, he asked what I meant by the word “white” (interview with 5, Retired Chief Judge 2015). He admitted that he had never seen himself along racial lines—a paradigmatic instance of white privilege.

B. Foreignizing

Another rhetorical move consisted in talking about colleagues of color as if they were noncitizens. “Immigrant” or “foreigner” are often used as shorthand for racial or ethnic minorities treated as perpetual outsiders. As Véronique Hélénon (Reference Hélénon2010, 91) observes, the term “immigrant” (immigré) “is increasingly used to speak of any non-white living” in France, “whether they indeed migrated or were born in that country.” For instance, a white senior administrative judge simply could not fathom how I could be interested in “such a topic” (i.e., judicial diversity) (conversation with Administrative Judge 2013). With a scolding tone, she informed me that “there are citizenship requirements to enter the judiciary. One must be a French national.” She added that the few colleagues she knew who were “of foreign origin” would be disinclined to discuss their ancestry with me. By way of an explanation, she concluded: “You know, entering the judiciary is like going through a white washing Laundromat.”Footnote ⁸ While the meaning of this assertion is not entirely clear, it could be an acknowledgment that the process by which magistrats are selected (through testing, schooling, etc.) aims at transforming minority candidates into whites. Becoming a magistrat, in other words, would be a form of boundary crossing into a state of whiteness.

The immigration paradigm still pervades race talk in French legal circles; whiteness and Frenchness are entangled (Fassin Reference Fassin, Murji and Solomos2014, 242). Some of the subjects I encountered used interchangeably words connoting nonwhite races or ethnicities with words indicating un-Frenchness or foreign origin. Asked about diversity in her appellate court, a white chief judge responded, “there are no foreigners,” before correcting herself, “they [the judges and prosecutors] are French. But I have someone of Vietnamese origin. Her father or mother, I don't know, but it's exceptional” (interview with 6, Appellate Court Chief Judge 2015). Similarly, a white senior prosecutor, who previously served as a judge, framed his perception of judicial diversity as a citizen-versus-noncitizen opposition, declaring that he “was not certain that just because there are foreign offenders, foreign judges should judge them.” He conceded that “there should be no roadblocks for people whose parents or grandparents were not French to access the judiciary” before reminding me “that one must be French to be a magistrat of course” (interview with 15, Senior Prosecutor 2015).

Other subjects used the euphemistic opposition between “citizens of French stock” (Français de souche) versus “citizens of diverse origins” (Français issus de la diversité) to distinguish whites from nonwhites. The two expressions vividly illustrate the conflation between race, ethnicity, and nationality, as well as the reluctance to conceptualize Frenchness as dissociated from whiteness. When asked about his current students, a white professor who prepares aspiring magistrats for the Judiciary School and considers himself an antiracist liberal replied that in a class of forty, apart from one “African” student, there were only “citizens of French stock” (Français de souche) (interview with A, Prep Course Professor 2015). Unlike the professor, the magistrats who employed the dichotomy between “citizens of French stock” and “citizens of diverse origins” did so with qualifications, as if they wanted to apologize for their circuitous language. For example, a black prosecutor maintained: “Honestly, I think that not being a citizen of French stock [Français de souche], if you can say it that way, isn't an obstacle to becoming a magistrat” (interview with 4, Prosecutor 2016). Comparably, a retired white chief judge declared that she endeavored “to use politically correct language” before employing the phrase “[citizens] of diverse origins” (interview with 17, Retired Chief Judge 2015).

C. Onomastic

First and last names commonly serve as proxies for racial and ethnic identification, not only in French popular culture, but also in social science research and antidiscrimination advocacy (Amadieu Reference Amadieu2014). Be it to evidence discrimination or simply to measure diversity, variables such as place of birth, nationality, spoken languages, and first and last name are used to approximate a population's demographics (Simon Reference Simon2010, 166–67). Consistent with this practice, a few magistrats reframed the question of judicial diversity into that of whether “foreign names” could be found in their court's directory. Asked whether there was any racial or ethnic diversity in her appellate court, one of the largest in France, a white chief judge answered: “Nowadays, we have quite a lot of names of foreign origins” (interview with 6, Appellate Court Chief Judge 2015). To the same question, a white senior prosecutor responded: “We must look at the organization chart [pulling the chart out of his desk and showing it to me]. You see the names [reading them one by one] .… There's someone of Polish origin, apparently: [repeating the name out loud]. It could be that she's been French for 200 years. I can't tell you exactly from which origin they are” (interview with 2, Senior Prosecutor 2016). For both these magistrats, a cursory review of their colleagues' names represented the beginning and the end of a reflection on judicial diversity. There was nothing more to be said on the subject.

Not only are names used as rhetorical tools to talk about race and ethnicity while professing not to, they also form a central conduit for discrimination and micro aggressions. During one of my court observations, a white judge introduced me to her new Maghrebi intern, who had begun her placement a couple of days earlier. The judge stumbled over the intern's last name. She asked her, chuckling, “Is that right?” before adding, “You'll see, I will eventually succeed in pronouncing your name” (field observations 2016). The few minority magistrats I met were particularly sensitive to the issue of mispronunciation, having been on the receiving end of botched deliveries. At a small claims court where I was about to observe a hearing, there was some unexpected delay. To excuse the wait, the presiding judge, of Tunisian ancestry, told her Maghrebi intern and me, half-jokingly, “there are too many foreign names for the bailiff” (field observations 2016). Another illustration came from a trainee magistrat of South Asian ancestry, who recounted that she

The fact that she was “pleasantly surprised,” despite having been singled out and filled with anxiety by the note (which did not specify why she needed to report to the school administration), emphasizes how low her expectations were. Compared to her past experiences of discrimination and stereotyping—including during a clerkship when a judge mistook her for a secretary—the school's modus operandi appeared quite considerate.

D. Color Terminology

Another form of discourse purporting to avoid racial categories relied on a color terminology, as evidenced by the following dialogue I had with a white judge:

For this judge, diversity conjured a form of aesthetics rather than a social mandate to remedy discrimination and other forms of racial oppression. Similarly, a recently retired white chief judge instructed me that to find out whether recent recruits were more diverse than older generations of magistrats, I should “take a picture of the audience during the oath-taking ceremony” (interview with 17, Retired Chief Judge 2015). These visual representations of diversity were not limited to the context of the Judiciary School. Asked about diversity in his office, a white senior prosecutor in the South of France responded: “We stopped looking at that a long time ago. They are all magistrats working for the prosecutor's office, so for me, I don't care if they're white, yellow, red, or black” (interview with 22, Chief Prosecutor 2016). A white judge went as far as to personify judicial decisions themselves, which became a canvass for colorism: “the more diverse justice will be, the more viewpoints will be discussed, the more we will make decisions which aren't monochrome” (interview with 9, Court of Appeals Judge 2016).

Differences in skin color have long been the basis of racial distinctions (Ndiaye Reference Ndiaye2008), but color terminology is paradoxical among a group ostensibly committed to colorblind universalism. This rhetorical move can be analyzed as a visual bypass for racial language, raising the question of whether for some subjects it is the image or visibility of diversity, rather than its reality, which is a worthy topic of conversation. The promotional materials released by the Judiciary School in 2014 (still used in admissions brochures in 2016), illustrate the judiciary's reliance on an aspirational definition of diversity based on skin color (Figure 1).

Figure 1.

French Ministry of Justice and Judiciary School joint recruitment campaign 2014–2016, “Becoming a magistrat will be your first decision.” [Color figure can be viewed at wileyonlinelibrary.com]

Stating “Becoming a magistrat will be your first decision,” this poster casts two young recruits wearing their judicial gowns. A neatly groomed male of color, authoritatively holding a bright red case file stands next to a white female, her long straight hair loose and smooth, smiling broadly. White fluted columns are identifiable in the background, suggesting the portico of a monumental courthouse. The classical architecture exhibits a white aesthetic that presumably appeals to viewers for whom the judiciary is a bastion of bourgeois (and white?) morality and who may otherwise be troubled by the image of a racially diverse corps of magistrats. This visual rhetoric raises a number of questions. Do representations of racial and ethnic diversity through color terminology and brochures constitute an admission of a diversity problem? On that view, what the judiciary and many of its members fail to publicly acknowledge—that diversity is lacking among their ranks—is symbolically translated via official communications with potential applicants. Or quite the opposite, does the poster refute the suggestion of a problem by showing diversity (implicitly saying “we've got minorities”) (Pippert, Essenburg, and Matchett Reference Pippert, Essenburg and Matchett2013)? Yet another question raised by this photographic portrayal of racial diversity regards the preferred identity attached to the post holder. Visual cues indicate that people of color can be magistrats but their racial character should not be too salient (their skin tone should be on the lighter side and their curls tamed).Footnote ⁹

E. The Banlieues

The final rhetorical strategy I observed lies in the recourse to geographical metaphors. Several research subjects used the spatial expression banlieue (suburb) or “kids from the projects” (jeunes des cités) as euphemic metonymies for ethnic and racial minorities, as is commonplace in contemporary white parlance. The word banlieue designates segregated suburban communities that are geographically isolated and ethnically distinct (but often internally diverse) from their surrounding communities. Evoking images of public housing complexes predominantly inhabited by low-income populations, racial and ethnic minorities, and immigrants, the word banlieue (especially in the expression “suburban youth”—jeunes de banlieues) has become a shorthand for nonwhite citizens.

One of the aspiring magistrats I interviewed, who self-identifies as Maghrebi, introduced himself as coming “from the banlieues, as we say, but I don't like this word, which means ‘banished.’ I'm not banished” (interview with D, Aspiring Judge 2016). He was referring to the etymology of the word. In medieval Latin, a banleuca was a space surrounding a city over which feudal society extended its ban. The contemporary signification is not so far from its medieval meaning given that today the banlieues could be described as spaces surrounding large cities over which French society not only exerts racial and socioeconomic oppression, but also sometimes physical violence. The word banlieue connotes race and poverty, hence its appeal to the dominant French discourse, which tends to dissolve racial and ethnic categories into socioeconomic ones. This explains why place-based, rather than race-based, affirmative action dominates French initiatives (Sabbagh Reference Sabbagh2011, 481).

This approach transpired in judicial discourses. Asked whether she thought the composition of the judiciary had diversified, a white appellate court judge responded, “we have quite a few people coming from what we call the banlieues” (interview with 7, Court of Appeals Judge 2016). Another white appellate judge framed the question of judicial diversity in terms of integrating a “banlieue audience” into the corps (interview with 20, Court of Appeals Judge 2015). The use of the expression banlieues to designate minority magistrats emphasizes the intersecting forms of exclusion that tend to keep them off the bench. The designation casts them as not only racially and ethnically different, but also as coming from a distinct space, as if they were exfiltrated from a parallel universe whose language, customs, and norms are at odds with the judicial institution.

A. Sexual Diversity—A “Nonsubject”

B. Racial and Ethnic Diversity—Problems Beyond Reach

The judiciary's homogeneity was presented as having nothing to do with race and ethnicity, but everything to do with socioeconomic and educational inequalities.

A. “This Is Such an American Question”

Much like the rest of the French population, the magistrats are eager endlessly to compare the French and US national projects, contrasting the American recognition of ethnoracial identities to France's ostensibly universalistic citizenship. During my fieldwork, the mere mention of the word “diversity” raised the specter of the United States and its affirmative action policies as imagined by the French public. Significantly, a third of the subjects I interviewed dismissed my use of sexual, racial, and ethnic diversity categories as “American.”

For instance, when asked if there was any racial diversity in his office, a white senior prosecutor at an urban court retorted: “This is such an American question” (interview with 2, Senior Prosecutor 2016). I reformulated my question, inquiring whether he had any nonwhite, non-Christian colleagues among his fifty-prosecutor office. He paused to reflect and explained, “I am obliged to think to see if there are people of a particular origin. It wouldn't even come to my mind. It's such an American thing.” Similarly, a white, straight chief judge proceeded to lecture me on the French state model, emphasizing that in France there are no minorities, no communities, but only an abstract model of citizenship, which supplants other forms of identities. He went on to contrast this French model to the American, concluding, “France is a unitary state. Americans govern via communities, but in France there is no communitarianism” (interview with 10, Senior Judge 2015).

The few magistrats who criticized their colleagues for turning a blind eye to the lack of diversity did so within the French-American dualistic paradigm, as illustrated by the judge of Tunisian ancestry who explicated,

This frequent deflection of diversity as an American thing may have been provoked by my affiliation with a US university and subjects' perception that I was American, or sufficiently Americanized to be interested in what they understood as “American” issues. Yet, I surmise that my own identity played a marginal role given the common French practice of comparing and contrasting “French and American responses to racial pluralism” (Fredrickson Reference Fredrickson2005, 88). To the magistrats, just like to other segments of the French elite, the United States represents a countermodel of identity politics, characterized by divisive communitarianism and rigid quotas. To illustrate this conception, here is an exchange I had with a black prosecutor:

Contrasting France with US racial and sexual politics can be read as both an expression of nationalism and a rejection of American cultural imperialism. In practice, it also functions as a justification for refraining from adopting (what are seen as) American policies to tackle racial and sexual inequalities, such as encouraging racial and LGBTIQ organizations, sensitivity training, affirmative action, and reparation.

This antiquota discourse comes across as ironic given that quotas may be more common in French law and society (in the form of gender quotas) than in the United States, where public universities and other government institutions are constitutionally prohibited from using numerical targets based on race (Suk Reference Suk, Hellman and Moreau2013). Once upon a time, the French judiciary itself toyed with the idea of quotas. In 1959, in the midst of the Algerian war, the French Parliament decided to set aside seats at the Judiciary School for “Muslim French citizens” (a then standard expression to designate citizens of Algerian ancestry) (Loi organique 1960). The measure established in effect a 10 percent quota for a five-year period. The statute also created a lateral hiring process for indigenous Shari'a judges to access the French bench directly, bypassing the entrance exam and years of schooling. The legislative history shows that legislators hoped “to increase the number of Muslim French citizens native to Algeria participating in the exercise of public responsibilities,” the draft preamble noting that “the number of Muslim judges is utterly insufficient” (Delannoy 2005, 413). In reality, these reforms were opportunistic, eleventh-hour attempts to secure buy-in from the indigenous Algerian elite at a time of state crisis when France's control of Algeria was in jeopardy. Tellingly, Algeria's independence and the end of the war in 1962 marked the demise of the short-lived experiment. The magistrats I interviewed neither mentioned nor seemed to be aware of this precedent.

If quotas are more French than American after all, perhaps is it not so much the American national project that is rejected as a countermodel as the notion of diversity itself as a descriptive and normative concept relevant to contemporary France. Diversity is “American” because it is not French. “American” has become a shorthand for “un-French,” a rhetorical tool to keep an uncomfortable thought at a safe distance. Another explanation has to do with France's scattered geography. The Algerian affirmative action program fell into oblivion, perhaps, because it was relegated, in collective memory, to France's negative “other”—overseas France. As the next section argues, while research subjects were keen to talk about racial and ethnic diversity in the overseas courts context, they were not prepared to repatriate these ideas to the metropole. Unlike the French-American opposition, which spans over sexual as well as racial and ethnic identity, this second form of geographic dislocation only concerns race and ethnicity.

B. Race in Overseas France

Some respondents granted that racial and ethnic diversity is an important and legitimate goal for the judiciary, but typically not in France, or at least not in metropolitan France, that is, the part of France located in Europe as opposed to the French-administered territories outside of the European continent known as overseas France (outre mer) such as Martinique, Guadeloupe, Réunion, French Guiana, New Caledonia, or Mayotte, where France maintains a court system (Ministère de la justice 2015, 9). Held as colonies until the 1940s, these territories share violent histories of slavery and oppression and became part of the French state with varying statuses and degrees of autonomy. Though in what follows I often lump together overseas courts as if they constituted a coherent entity, my intention is not to perpetuate the neocolonial, imaginary geography of non-European otherness, but accurately to reflect research subjects' declarations while protecting their confidentiality.

Compared with their racial aphasia with respect to metropolitan courts, I was struck by magistrats' openness to discussing race and ethnicity in overseas courts. Two sets of reasons may explain this bifurcated discourse. First, by talking about race overseas but not in the metropole, the magistrats track the history of French colonial law, which deviated from universalistic principles in the colonies and protectorates by instituting a specific regime based on racial inequality and oppression. Overseas, slavery and race-based legislation was the norm, while slavery had been prohibited in metropolitan France since 1315 and citizenship was in principle universal (Hélénon Reference Hélénon2010, 92). This dichotomy is still reflected in the regulation of data collection. In 1983, the French data protection agency, the CNIL, declared that “given the socio-demographic characteristic of the overseas territories,” as an exception to the prohibition on collecting ethnic and racial information, the census bureau is authorized to collect “information concerning the ethnic origin of the people included in the census” in certain overseas regions (CNIL 1983). Second, white magistrats may be eager to discuss race in the overseas context because it is there that they likely experienced racialization firsthand. Overseas courts are staffed by a rotation of magistrats who come and go from the metropole on temporary, three- to five-year, voluntary assignments. These postings force magistrats to interact with individuals from different racial and ethnic backgrounds be it inside or outside the courtroom.Footnote ¹⁴ Of course, this is true in metropolitan France as well, but overseas, magistrats indoctrinated with a colorblind ideology are propelled into an environment where race is constantly discussed and problematized. Most importantly, when they set foot overseas, metropolitan whites who do not speak local languages may begin to see themselves as a minority. As Barbara Flagg (Reference Flagg1993, 970) has pointed out, “[w]hiteness attains opacity, becomes apparent to the white mind, only in relation to, and contrast with, the ‘color’ of nonwhites.” Feeling racialized for the first time, the magistrats become anxious to recognize that race is a social reality that matters.

Though variations exist among the different French territories, overall, white, metropolitan judges, prosecutors, and senior registry members preside over courts predominantly staffed by native overseas employees reflecting the racial makeup of the local population and adjudicate cases involving native peoples represented by a racially diverse bar. A retired white, metropolitan chief judge who served on several French islands reported that among the hundred magistrats working at one of the courts where he served, perhaps “four or five” were native islanders, while the support staff “was overwhelmingly native” (interview with 5, Retired Chief Judge 2015). Likewise, a mixed-race native overseas judge lamented that at her overseas court, “of a total of 103 magistrats, there are two natives” (interview with 23, Judge 2016). The other 101 magistrats are not only metropolitan, but they are also white, leading her to exclaim: “Can you imagine the picture it gives to a very mixed-race, black, creole-speaking population which feels misunderstood because my colleagues don't understand them?” (interview with 23, Judge 2016). The disparity, she added, leads to a “a colonial judiciary .… People tell me all the time: it's a white justice rendered by whites” (interview with 23, Judge 2016). Using her colleagues' places of birth as a proxy, she crunched the numbers and found that less than 1 percent of French judges and prosecutors are overseas natives, when overseas citizens represent 4 percent of the total French population (interview with 23, Judge 2016).

Research subjects did not fit metropolitan and overseas courts into a single analytic frame. As ready as they were to talk about racial inequality and oppression in the overseas court system, these discourses remained severed from racial politics in mainland France. When recounting her years at an Indian Ocean court, a white appellate judge spontaneously expounded on the racial and ethnic makeup of the local population, recognizing that judges and prosecutors failed to reflect it. A few minutes later, when I inquired as to whether she had black, Maghrebi, Asian, and LGBT colleagues at her current court in the East of France, she asked back, manifestly puzzled: “Do you mean what one calls ‘minorities’ in North America?” (interview with 18, Court of Appeals Judge 2015). Though she had registered the insufficient inclusion of people of color on the overseas bench, she did not see a connection between this state of affairs and the metropolitan judiciary's whiteness. This outlook is reminiscent of French anthropologists of the French Caribbean and Sub-Saharan Africa who, according to Éric Fassin (Reference Fassin, Murji and Solomos2014, 236), “reject … any suggestion that the racialised world they studied in the French or former colonies ha[s] anything to do with France itself: they refuse … the repatriation of whiteness.” Similarly, magistrats refuse to repatriate any notion of racial injustice to the mainland. The memory and experience of colonial oppression are left behind in the overseas territories rather than connected to metropolitan France's current racial power structure.