Editorial Introduction Women and Judging

Authors: Dermot Feenan

Publish Date: 2009/02/26

Volume: 17, Issue: 1, Pages: 1-9

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Abstract

Increasing scholarly attention is being paid to women and judging The literature now covers a wide field only some of which can be referred to here1 analysis of judicial appointments the structure practices and culture of the legal profession Schultz and Shaw 2003 Resnik 1996 judicial decisions including both the decisions themselves and their impact or not on women see eg Schneider 2007 whether women judge differently Malleson 2003 the gendered constitution of law Graycar 1995 judicial authority Thornton 1996 and more recently the construction of the notion of the judge Rackley 2002 Empirical biographical and other narrative studies have revealed important information on women’s continuing difficulties and some successes in appointment to and retention in judicial office Still in most parts of the world women continue to be underrepresentedWomen’s low representation in the judiciary has been reported in a number of regions such as Latin America Formisano and Moghadam 2005 and the Middle East and North Africa2 and in separate jurisdictions Among common law countries where admission to judicial office remains largely dependent on performance as an advocate gender representation remains low In England and Wales women make up 16 of the judiciary 9 above the level of High Court There is only one woman alongside 11 men in the highest court the House of Lords Three women sit alongside 34 men as Lord Justices3 In the USA there is one woman justice alongside eight men on the Supreme Court In Australia women comprise 27 of all judges and magistrates4 Lower representation is found in Ireland 224 Feenan 2008a and less still 209 in Northern Ireland NISRA Northern Ireland Statistics and Research Agency 2008 In civil law countries such as France or The Netherlands where judicial careers are facilitated at an early stage through judicial qualifications and/or training women judges’ representation is often close to their proportion in the overall population Bell 2006 And in the mixed jurisdiction of Canada women comprise 39 of the federal judiciary and constitute 444 of its highest court the Supreme Court of Canada5 On regional and international courts women’s representation is generally low While women comprise 347 of the European Court of Human Rights they make up 17 of the European Court of Justice and there is only one woman alongside 14 men on the International Court of JusticeThe low representation of women in judicial office among other pressures for change has led to reform of judicial appointments procedures at various national regional and international levels Malleson and Russell 2006 based on a variety of rationales including fair representation equality improved public confidence in the judiciary diversity and bringing a different approach to adjudication Mechanisms for delivering change have varied from constitutional provision for greater gender representation as in South Africa Cowan 2006 through softer options such as outreach to executive intervention to boost women’s representation While in some countries women’s representation and status in the judiciary has improved significantly in other parts of the world such as Saudi Arabia women remain excluded from or severely marginalised within the judiciaryThe articles within this issue were commissioned from members of the International Research Collaborative on Gender and Judging sponsored by the Law and Society Association 2006–2007 of which the commissioning editor was CoChair The articles address separately five different countries the UK Canada the USA Korea and Australia The authors deploy a range of approaches theoretical a mix of doctrine and theory and empirical methodologies The articles seek to augment existing scholarly work and also indicate new directions for research on judging They variously confirm the persistent challenges faced by women considering judicial office notwithstanding their increased entry at some levels of the judiciary While postmodernism and queer/critical race/disability theories assist in problematising concepts of gender the persistent and severe disadvantage faced by women worldwide justifies ongoing use of the category as a meaningful and political concept Harris 1990 Moreover as Katharine Bartlett 1990 argued without asking ‘the woman question’ assumptions and stereotypes about women often remain unexamined The effect can reinforce laws and practices that disadvantage womenSome of the existing literature on women and judging has done much to expose such disadvantage historical exclusion quotidian discrimination including stereotyping genderbiased appointments procedures and criteria perceptions of a maledominated hostile environment Genn 2008 and working practices that facilitated men’s routines rather than women’s lives Brockman 1992 2001 The ‘old boy’s network’ that hothouses flows of useful information and strengthens the cultural habitus of the male judge has often disadvantaged women Feenan 2005 2007 Working practices and residual discrimination continue to exclude women lawyers from progression generally notwithstanding official commitments to equality and diversity Thornton and Bagust 2007 and from particular areas of practice traditionally associated with masculine attributes Thornton 2007 Indeed Elaine Martin’s article in this special issue argues that the experiences of women appointed to the US federal bench by President Carter between 1976 and 1980 still resonate for today’s women judges It is possible in the current era of economic slowdown and a neoliberal market economy that women’s opportunities will continue to stall or slip Epstein 1998 Kay 1997 and require correctionMuch also needs to be done to redress the symbolic exclusion of woman from judging Berns 1990 Rackley 2002 Thornton 2007 Feenan 2008a and the problematic gender and racial symbolism of the image of Justicia Curtis and Resnik 1987 Capers 2006 Where women have made it onto the bench they have often experienced the sting of exclusion from male judges Solberg 2006 Women who might be perceived or who identify as feminist have been deemed unfit for the judiciary Backhouse 2003—typically as part of a backlash against women’s appointment generally Hunter 2006It is not surprising that the underrepresentation of women in judicial office has led to a range of rationales for their increased representation These rationales include equality of opportunity representativeness and most recently the need for diversity Feenan 2008b One of the early arguments was also that women would make a difference in judging Abrahamson 1984 Initially feminist proponents saw this as necessary to redress the male biases of the judiciary but the rationale developed particularly through the 1990s to encompass broader approaches whether named as feminist or not Some women judges denied that they would or should bring a difference to judging Cedarbaum 1993 O’Connor 1991 A greater number have said that they believe that they or other women do bring a difference with that difference ranging widely across a range of features of judging Most of those who have acknowledged such difference have done so however in terms of how their experience—as women—of discrimination has enabled them to identify with the position of others in similar positions Wald 2005 Panel 1990 Abrahamson 1998 for instance said that “a woman judge’s special commitment comes from her personal experiences of suffering some injury or injustice from unfair treatment” and that “as outsiders to the system women judges must be committed to making a special effort to understand other outsiders—the old the poor the differently abled members of racial ethnic religious and cultural minorities” p 211There is some data on decisional outcomes—mainly from North America—that would appear to confirm that in some cases women judges judge differently from male judges though the data is equivocal The following studies give a flavour of the themes Allen and Wall 1993 concluded that women judges “act as Representatives when confronted with issues that are of immediate concern to women and that a larger number of them behave as Outsiders while a smaller proportion manifest behavior indicative of the Different Voice role” p 165 cf Martin 1993 Empathic identification with those who claim discrimination might explain data that women judges were 11 more likely to vote for the plaintiff in employment discrimination claims Farhang and Wawro 2004 A number of studies found women judges were more likely than men to uphold employment discrimination claims Davis et al 1993 Kruse 2005 and on a wider range of issues Davis 1986 A survey of lawyers and judges in Florida found that women judges were more conscious of gender inequality observed more gender bias in legal settings and made a stronger connection between experiences with gender bias and feminist consciousness Martin et al 2002 Yet there have been studies of courts which reveal no significant gender differences Gottschall 1983 Songer et al 1994 McCormick and Job 1993 Westergren 2004 Moreover Walker and Barrow 1985 found no difference between men and women judges on ‘women’s issues’ such as reproductive freedom affirmative action maternity rights sexual harassment and gender discrimination They report that women judges were more deferential to men judges in cases involving federal regulation and voted less often than men judges in cases involving policy affecting minorities Studies on sentencing vary with some surveys finding no significant differences in urban trial courts Kritzer and Uhlman 1977 Gruhl et al 1981 whereas a later study found that women judges impose harsher penalties for certain offences Steffensmeier and Hebert 1999

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