21 Sep Comparative Experiences of Women in the Judiciary
Justice Ruth Bader Ginsburg gave an interesting speech at the American Sociological Association last month on comparative experiences of women in the judiciary. The speech provides a useful perspective on how the United States Supreme Court fares compared with peer national and international tribunals on this issue.
When President Carter took office in 1977, only one woman (Shirley Hufstedler) sat among the 97 judges on the federal Courts of Appeals and only five among the 399 District Court judges. President Carter appointed a barrier-breaking number of women-40-to lifetime federal judgeships.
Once Carter appointed women to the bench in numbers, there was no turning back. President Reagan made history when he appointed the first woman to the Supreme Court, my dear colleague, Justice Sandra Day O’Connor. He also appointed 28 women to other federal courts. The first President Bush, in his single term in office, appointed 36 women. President Clinton appointed a grand total of 104 women, and the current President to date has appointed 52 women.
Today, every federal court of appeals save the First and Eighth Circuits has at least two active women judges. Nine women have served as chief judge of a U. S. Court of Appeals, including three who currently occupy that post. Forty women have served as chief judge of a U. S. District Court, including the seventeen now holding that position. All told, more than 250 women have served as life-tenured federal judges, fifty-eight of them on appellate courts. Yes, there is a way to go, considering that women make up only about one-fourth of the federal judiciary. But what a distance we have come since my 1959 graduation from law school, when Florence Allen remained the sole woman ever to have served on the federal appellate bench….
Looking beyond our borders, however, we are not in the lead. For example, the Chief Justice of the Supreme Court of Canada is a woman, as are three of that Court’s eight other Justices. The Chief Justice of New Zealand is a woman. Four of the sixteen judges on Germany’s Federal Constitutional Court are women, and a woman served as president of that court from 1994-2002. Currently, five women are members of the European Court of Justice, two as judges and three as advocates-general. Women account for eight out of eighteen judges on the International Criminal Court; one of them serves as that court’s first vice-president.
I think it is interesting to consider Justice Ginsburg’s point about the comparative success of women in the judiciary across jurisdictions. She certainly is correct that the United States is not leading the way on this issue. Of course, until Justice O’Connor’s retirement we had two of nine justices who were women (22%). And President Bush clearly had intended to keep up with that pace with the nomination of Harriet Myers. But the present ratio of one out of nine justices (11%) is certainly not path-breaking.
As Justice Ginsburg notes, other jurisdictions are more diverse. Canada appears to be among the most integrated. It now has four of nine Supreme Court justices who are women (44%). (But both men and women on that Court are equally burdened with the perplexing obligation to wear robes ordered directly from tailors at the North Pole.) Another highly integrated court is the International Criminal Court. Eight of eighteen judges (44%) on that court are women. New Zealand has one of five Supreme Court Justices who are women (20%), the German Constitutional Court has four of sixteen (25%), and the European Court of Justice has four of twenty-four judges who are women (16%).
Of course, one could do a more exhaustive study of other key countries and international tribunals to give a fuller picture. Only one out of seven (14%) members of the WTO Appellate Body is a woman (the American Merit Janow), and one out of nine judges (11%) on the Iran-United States Claims Tribunal is a woman (the American Gabrielle Kirk McDonald). The International Court of Justice fares even worse, with only one judge out of fifteen (6%) who is a woman (the British Rosalyn Higgins, who is President). And just for point of reference the Albanian Constitutional Court has no women among its nine members, and the Indian Supreme Court has no women among its twenty-two members.
I would be curious whether the composition of the highest court in other jurisdictions, as well as that of other international tribunals, is similar to the United States Supreme Court. If anyone has information on other jurisdictions I would be grateful if you would share it.
Ireland’s Supreme Court is, I think, 3 out of 9. Justice Fidelma Macken was appopinted to the High Court in 1998, the ECJ in 1999, and the Supreme Court on her return to Dublin in 2005. Justice Catherine McGuinness is highly active both in regular work on the Bench and also as President of the Law Reform Commission, and formerly as Chair of numerous colleges, adjunct professor in numerous Irish law schools, and famously as the Chair of the Kilkenny Incest Investigation. Mrs Justice Susan Denham, hotly tipped by many to be our first female Chief Justice, is now the longest serving judge on the court but was passed over for CJ last time because, it is felt, of her relative youth (she was only 59 at the time). Her appointment as Chief Justice would (will?) be deeply symbolic given that she is a Protestant woman. She is, in general, the most beloved of the Supreme Court judges for her kindliness, ability, clarity, wit, and no-nonsense attitude. She is also not afraid of a result in a case – her legal reasoning is sound and generally not ideologically influenced. She was the first female judge on the Irish Supreme Court… Read more »
Several high courts with women chief justices, or presidents as they are sometimes called, immediately come to mind. The Serbian Supreme Court is headed by Vida Petrovic Skero, a longtime reformer going back to the Milosevic era. Graciela Dixon is the President of the Supreme Court of Panama, and currently heads up the International Association of Women Judges. In Argentina, Elena Highton de Nolasco was appointed as the first female chief justice of the Supreme Court back in 2004. The Constitutional Court of Kyrgyzstan is headed by Cholpon Baekova. Of course, gender representation at the high court is important, but it is also important to look at what is happening at the lower levels, where there may be many women judges but they are assigned to civil as opposed to criminal cases. And, it is more common for men to be appointed to leadership positions even though there are plenty of qualified women judges. Also, let’s not forget that in some jurisdictions/countries, the judiciary and judges unfortunately do not enjoy the same status (or independence)that they do elsewhere. For a discussion and analysis of gender representation in the judiciaries of eastern Europe and the former Soviet Union, I recommend the… Read more »
Frankly, the continued emphasis on there being a “proportional” number of woman/men/racial groups/etc holding federal judgeships is offensive.
How about we simply pick the best people for the job, regardless of whether they’re men or women or a member of racial group X, Y or Z? To assume that only women can judge other women, or that men can’t understand an issue that may predominantly effect women is to sell us all short. Enough already.
Cassandra – honestly, get thee to a feminist legal theory class.
Looks like the Claus family makes the law in Canada! I guess a bunch of it is north of the Artic Circle…
The Project on International Courts and Tribunals has held a couple of conferences on women and public international litigation. Background papers, remarks, and other information can be found here.
Oh, sorry, I didn’t realize you’d already made that joke in the original post, with a link even.
Cassandra,
I wasn’t making that assumption and I don’t assume you need proportional representation in the judiciary. But it appears you assume that attempts to be gender inclusive might require compromises on quality. I would question that presumption, especially when it comes to filling vacancies for the highest courts.
Roger Alford