Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, January 9, 2018

Oregon Justices Share Experience of Sitting on Majority Female Bench

Justices of the Oregon Supreme Court

Oregon Justices Share Experiences of Sitting on Majority Female Bench (video)

For the first time in state history, there are more women than men sitting on the Oregon Supreme Court.***

 

Justice Rebecca Duncan was the female justice to tip the scale after being appointed to the bench by Governor Kate Brown in May of 2017.

 

Duncan told FOX 12 the fact that the majority of justices are women is very meaningful, not only for her and the other women on the court, but also for women and girls across the state.

 

“It sends the signal that times do change and progress can be made,” she said. “I heard from people who were incredibly excited, and there were people who had gone to law school, or where law school wasn’t even really an option for them at the time they were entering their professional lives just because of what was viewed as available career paths for women, and they were so excited to see what had been a limit no longer existing.”

 

Justice Martha Lee Walters, Justice Lynn Nakamoto and Justice Meagan Aileen Flynn said they too have heard similar stories since that momentous day.

 

“Everybody wants to know that they’re going to be heard if they appear before a court of law.  What’s the most important thing to them? That they’re going to be listened to, that they think they’re going to have a fair hearing,” Walters explained. “So, if people see people on the bench who they think are similar to them in some way, it makes them think, ‘Oh, there’s someone who I think will listen to me.’ So, we need to have great diversity.”***

 

 

 

The four justices say they are honored to sit on Oregon’s highest court and hope this historic appointment encourages other young women to pursue similar interests.

 

“It’s nice to see that women have now gotten into more senior positions,” Nakamoto said. “That they are in a position to be on a high court."

 

There will soon be a fifth female justice in Oregon after Governor Brown announced Monday that Judge Adrienne Nelson from the Multnomah County Circuit Court will be replacing the retiring Justice Jack Landau.

 

The four current justices also told FOX 12 they are hopeful that majority-female supreme courts will one day be nothing notable at all and instead will be common.

January 9, 2018 in Courts, Judges | Permalink | Comments (0)

Saturday, December 30, 2017

Judges' Rules Help Establish Diverse Attorney Voices in Court

ABA J, Judges Push for Diverse Voices in Court

On the day U.S. District Judge Elizabeth Wolford received a copy of a New York State Bar Association report revealing that women participate in court at lower rates than men, the judge had a meeting to discuss a pending breach-of-contract case.

 

In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.

 

“It was one of the best arguments I have had the privilege of presiding over,” Wolford recalls.

 

According to the July report, female attorneys account for just 25 percent of counsels appearing in commercial and criminal New York state and federal cases. In more complex matters, the percentage declines further. A 2015 ABA report found similar numbers in a study of the Northern District of Illinois.

 

In August, Wolford implemented a standing rule that encouraged young attorney participation. Such rules, which often offer oral argument as incentive, are one way the NYSBA report recommends the bench help address litigation’s gender disparities.

 

Wolford’s rule was inspired by similar guidelines set forth by Judge William Alsup of the U.S. District Court for the Northern District of California. He implemented his rule soon after taking the bench in 1999, but he also requires large firms to document how they will integrate junior attorneys into a case. Alsup says he does so for the good of the profession, as well as for up-and-coming lawyers.

 

“If we don’t train the next generation, then lawyering will suffer and the public will lose confidence” in the system, he says.

 

None of the rules mentions gender or race. But the measures can have the effect of increasing opportunities for women and minorities because they now make up a greater share of young attorneys. In 2016, according to ABA data, women composed more than half of matriculating students at all law schools, and minorities made up more than a third of such students. In 2009, 47 percent of all enrolled students were women and 23 percent were minorities.

 

Attorney Sharon Porcellio, who worked on the New York bar report, says she thinks the rules are an innovative way to address an age-old problem.

 

“Those of us who have been practicing for a long time had hoped that the pipeline theory”—the idea that increasing numbers of women and minorities in law school would lead to equal representation in practice—“would work,” she says. “The pipeline theory has not proven to work.”

December 30, 2017 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, December 19, 2017

The Judge Kozinski Sexual Harassment Saga: From Beginning to End

Initially, seven women -- three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

 

The first accuser, Heidi Bond's responded further on the details on her allegation.

Bond made two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counseled against the potential consequences of steering women away from prestigious clerkships.

 

Additional women, including national reporter Dahlia Lithwick shared their metoo stories about Judge Kozinski.

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Acccomplices

Nine More Women Say Judge Subjected Them to Inappropriate Behavior Including Four Who Say He Touched or Kissed Them

 

Attorney Susan Estrich, also a feminist law scholar and professor at USC who wrote "Sex and Power" and "Sex at Work," represented Judge Kozinski.  She also formerly represented Roger Ailes in his sexual harassment case.  See NYT, The Curious Case of Susan Estrich

 

The case triggered much thought and commentary:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

Catharine Crump, Clerkships are Invaluable for Young Lawyers. They Can Also be a Setup for Abuse.

Debra Weiss, Will Complaints of Inappropriate Sexual Conduct by Kozinski have any Impact Impact

Judge Alex Kozinski's Opinion in a 2001 Sexual Harassment Case is Alarming 

 

As a result:

An inquiry was initiated.  Chief Judge Initiates Judicial Review of Allegations Against Alex Kozinski

Judge Kozinski retired on December 18, 2017. Alex Kozinski Announces Immediate Retirement Following Accusations of Sexual Misconduct

Chief Justice Roberts amended the law clerk handbook.  Newly Amended Law Clerk Handbook Affirms Harassment Complaints are Permitted.  "Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official," the handbook now says.

December 19, 2017 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)

Monday, December 11, 2017

Ninth Circuit Judge Kozinski Accused of Sexual Harassment

Three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

  

Heidi Bond's further response provides more details on her allegation.

 

Bond makes two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.  

I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.

A type of ombuds office within the court administrative office might be a way to implement this.

Bond's additional recommendation: 

I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.

I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.

However, Nancy Leong counsels against the potential consequences of steering women away from prestigious clerkships.

 

Further Updates as of Dec. 14:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Accomplices

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

 

December 11, 2017 in Courts, Judges, Workplace | Permalink | Comments (0)

Monday, November 27, 2017

Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge

Wednesday, November 15, 2017

Trump Nominating White Men to Federal Courts at Highest Rate in Decades

AP, Trump Choosing White Men as Judges, Highest Rate in Decades

President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that reflects the nation’s diversity.

 

So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.

 

The shift could prove to be one of Trump’s most enduring legacies. These are lifetime appointments, and Trump has inherited both an unusually high number of vacancies and an aging population of judges. That puts him in position to significantly reshape the courts that decide thousands of civil rights, environmental, criminal justice and other disputes across the country. The White House has been upfront about its plans to quickly fill the seats with conservatives, and has made clear that judicial philosophy tops any concerns about shrinking racial or gender diversity.

 

Trump is anything but shy about his plans, calling his imprint on the courts an “untold story” of his presidency.

 

Comparing the first ten months of judicial appointments by former President Barack Obama vs. Trump.

 

“Nobody wants to talk about it,” he says. “But when you think of it ... that has consequences 40 years out.” He predicted at a recent Cabinet meeting, “A big percentage of the court will be changed by this administration over a very short period of time.”

 

Advocates for putting more women and racial minorities on the bench argue that courts that more closely reflect the demographics of the population ensure a broader range of viewpoints and inspire greater confidence in judicial rulings.

November 15, 2017 in Courts, Judges | Permalink | Comments (0)

Wednesday, November 8, 2017

Study Shows Gender Under-representation on District Courts in 10th Circuit

Eli Wald, Judging Judges: A Study of US Federal District Judges in the 10th Circuit

This paper examines the demographics of federal district court judges in the 10th Circuit. Consistent with the glass-ceiling effect literature in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that minority judges are over-represented in the Circuit. The paper next explores the relationship between under-representation, over-representation and discrimination. Under-representation that cannot be explained in terms of merit criteria or informed opting out, such as the under-representation of women on the 10th Circuit, strongly suggests the lingering effects of past exclusion and discrimination, as well as the current effects of implicit bias. As demonstrated by the over-representation of minority judges, the political commission process can break through the gender glass-ceiling by over-representing qualified women judges in the short run until their overall numbers better reflect equality.

November 8, 2017 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Friday, November 3, 2017

Book: Biography of Claire L'Heureux-Dube, the Second Woman Appointed to Canada's Supreme Court

 Claire L’Heureux-Dubé

 

Claire L'Heureux-Dubé: A Life by Constance Backhouse  

From the publisher:

Both lionized and vilified, Claire L’Heureux-Dubé has shaped the Canadian legal landscape – and in particular its highest court. The second woman appointed to the Supreme Court, and the first Québécoise, she was known as “the great dissenter,” making judgments that were applauded and criticized in turn.

Who was this energetic, risk-taking woman? L’Heureux-Dubé stands out as one of the most dynamic and controversial judges on a controversial court. Did she consciously position herself for success in a discriminatory milieu, or was she oblivious to power?

L’Heureux-Dubé anchored her innovative legal approach to cases in their social, economic, and political context. Constance Backhouse employs a similar tactic. Rather than focusing exclusively on jurisprudential legacy, she explores the rich sociopolitical and cultural setting in which L’Heureux-Dubé’s career unfolded, while also considering her personal life.

This compelling biography covers aspects of legal history that have never been so fully investigated. Changing gender norms are traced through the experience of a francophone woman within the male-dominated Quebec legal profession – and within the primarily anglophone world of the Supreme Court. Claire L’Heureux-Dubé enhances our understanding of the Canadian judiciary, the creation of law, the Quebec socio-legal environment, and the nation’s top court.

November 3, 2017 in Books, International, Judges, Legal History | Permalink | Comments (0)

Tuesday, October 17, 2017

Study of Gender Diversity in High Courts

Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts

Abstract

Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.

From the Intro:

The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and  Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).

October 17, 2017 in Courts, Gender, International, Judges | Permalink | Comments (0)

Thursday, October 12, 2017

Women Judges in Pakistan

Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).

Abstract:

Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.

Introduction:

According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * * 

In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.

October 12, 2017 in Courts, Family, International, Judges | Permalink | Comments (0)

Friday, October 6, 2017

A Plea for More Women Judges on the Third Circuit

Dear Senators: The Third Circuit's Shortage of Women Judges is a Crisis

Once Stephanos Bibas is confirmed, the Third Circuit will have 12 active judges: 10 men and 2 women. That gender imbalance is appalling.

 

Two Third Circuit openings remain — one for Pennsylvania, one for New Jersey. We do need those seats filled, because the court has a crushing case load and we need the court back up to full strength.

 

We need both of those seats filled by women.

 

Senators, this is an air-raid-siren crisis. The shortage of women judges on the Third Circuit weakens the court and undercuts its legitimacy. It undermines public confidence in the federal judiciary at a moment in history when that confidence is needed urgently. It weakens our legal system and our democracy.

 

Nationwide, more than a third of active circuit judges are women. That’s double — double! — the Third Circuit’s proportion. If other circuits can do it, we can too.

 

We have done it in the past. The Third Circuit has a proud history of service by women on the bench. As recently as 2006, the court had four active judges who were women. But all four have since taken senior status, and from 2000 to 2012 10 Third Circuit seats in a row were filled by men.

 

Senators, you didn’t cause this problem, but it is a problem you can fix.

 

Nine of the 22 sitting federal district judges for the District of New Jersey are women. Thirteen of Pennsylvania’s sitting district court judges are women. Our law school faculties and practicing bars are brimming with qualified women who would bring credit to the court.

 

And this shouldn’t be a partisan issue. Four of President Trump’s 12 pending circuit nominees are women, right in line with the national rate. In the two most conservative circuits in the nation, the Fifth and Eleventh, 40% of the active judges — 10 of 25 — are women. Republicans are just as capable as Democrats of finding outstanding women to fill circuit judgeships.

President Obama nominated Rebecca Haywood last year, who would have been the first black woman to serve on the Third Circuit.

October 6, 2017 in Courts, Judges | Permalink | Comments (0)

Wednesday, July 5, 2017

How Female and Minority Judges Have Changed (or not Changed) Over Time

Maya Sen, Diversity, Qualifications, & Ideology: How Female and Minority Judges Have Changed, or not Changed, Over Time, 2017 Wis. L. Rev. 367 (2017)

Ever since the Carter Administration began appointing female and minority judges in large numbers, scholars have sought to measure their impact. In this Article, I focus on a different, but equally important question: what is the background and ideology of female and minority judges and how has this changed over time? I address this issue empirically by analyzing quantitative data on United States district court judges from Presidents Lyndon Johnson through Barack Obama. My findings are twofold: First, I show that the professional and educational characteristics of female and minority judges have historically differed from those of white male judges, but these differences have narrowed over time, particularly when it comes to education. Second, I present evidence showing that, even though professional and educational differences have narrowed, female and minority judges still bring a different ideological viewpoint than do white male judges, being on average more left-leaning in their ideology. These findings reframe existing discussions about descriptive representation in the courts and suggest that female and minority judges more than ever tend to share professional and educational backgrounds with white or male judges, but still bring a different, albeit more liberal, perspective.

July 5, 2017 in Gender, Judges | Permalink | Comments (0)

Wednesday, June 28, 2017

Reading Judicial Biographies of Women

JudicialBooks2

Here is my current stack of background reading on judicial biographies and autobiographies. I am beginning a new research project on Florence Allen.  Judge Allen was the first woman appointed to a federal appellate court (the Sixth Circuit in 1934) and the first woman elected to a state supreme court (Ohio in 1922).  So she is often dubbed "the first woman judge," though there were other women magistrates, trial judges, and special court judges who came before her.  Allen may also be one of the first gay judges, though the historical record is murky on this historically censored point. 

As I begin digging into the archives, my parallel task is to read, and in many cases re-read, the biographies of judges, particularly women judges.  I have some of my own favorites -- with Linda Greenhouse's Becoming Justice Blackmun leading the pack -- but am now focused on structure, tone, and content -- what works, what adds insight, and what as the reader I am able to take away.  My thought is that the Allen book project will be more intellectual history than pure biography, although the interesting personal juxtapositions of this woman's life (e.g. pro-death penalty/anti-war), inform her judicial role. 

June 28, 2017 in Books, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, May 30, 2017

Court Rejects Father's Attempt to Turn Custody Hearing Into "a Witch Hunt" With Sexting Photos

J.S. v. M.M, (Ontario Superior Ct. of Justice, Mar. 31, 2016) (denying father's motion for temporary custody change) (Justice Alex Pazaratz)  

        1.    Do nude pictures of parents help judges decide who should get custody?

        2.    A silly question?

        3.    Why then, on this motion for temporary custody, has the Applicant father attached to his affidavit a series of sexually explicit “selfies” of the mother, retrieved from her discarded cell phone? 

        4.    And why did he attach dozens of screen shots of the mother “sexting” with another man, describing her sexual preferences in graphic detail?

        5.    If the objective was to humiliate the mother, undoubtedly the father succeeded

        6.    But how does humiliation help in family court?

        7.    How does irrelevant and scandalous information help a judge determine the best interests of the child?

        8.    More importantly -- from the child’s perspective -- what is the long-term impact of this needlessly hurtful approach to litigation? 

       12. Sometimes, an embarrassing post from the past can assist the court in determining a contentious issue:

          Facebook entries have been known to confirm drug or alcohol abuse, where it was otherwise denied.  

          Intimidating and threatening behaviour often becomes self-evident in texts. 

          A parent’s resistant attitude toward timesharing frequently comes through loud and clear in e-mails. 

        It’s quite amazing the incriminating things people will type and photograph.  Too bad if it comes back to haunt them.

    13. But where behaviour is neither unusual, illegal nor disputed, there’s no need to inflame tensions by attaching texts and pictures that tell us nothing we need to know.

    14. In this case, a fundamental evidentiary issue relates to the father’s unauthorized use of the mother’s discarded cell phone. 

    15. But more to the point, the nude photographs and salacious texts submitted by the father merely confirm what I would suspect of most other adults on this planet:  The mother has a sex life.

    29g. The Applicant has tried to turn this custody motion into a bit of a witch hunt:  She’s done bad things.  Maybe she’s a bad mother.

        32d.  All of this smacks of a puritanical double standard.  The obvious inference is that a woman who likes sex is somehow immoral or unworthy as a parent.  That kind of hypocrisy is a thing of the past.

 

[h/t Sonia Lawrence]

 

 

May 30, 2017 in Family, Judges | Permalink | Comments (0)

Tuesday, May 2, 2017

Gender Quotas for Judges on International Courts

Nienke Grossman, Shattering the Glass Ceiling in International Adjudication, 56 Va. J. Int'l L. 339 (2016)

The Article shows that women are found in dramatically low numbers on the benches of the majority of the world’s most important international courts, analyzes the causes of this phenomenon and proposes and evaluates solutions. It establishes that the number of women in the pool of potential judges does not appear to dictate how many women become international judges. It shows, too, that when selection procedures are closed and opaque, and there is no quota or aspirational target for a sex-balanced bench, women obtain international judgeships in disproportionately low numbers. On the other hand, when a quota or aspirational target exists, benches are more balanced. Finally, the Article suggests and evaluates concrete reforms to selection procedures on international courts to remedy this problem, including greater transparency and openness in selection procedures, aspirational targets for the participation of women on the bench and quotas. It is the first article to explore the relationship between selection procedures and sex representativeness outcomes on international courts.

May 2, 2017 in Gender, International, Judges | Permalink | Comments (0)

Thursday, April 27, 2017

A Judge's Thoughts on What it Means to be a "Feminist" Judge

Judge Elinore Marsh Stormer, Perspectives from the Bench on Feminist Judgments, 8 ConLawNOW 81 (2017).

Judge Stormer gave these remarks as part of a panel discussion on feminist judging at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. She offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.

 

I’m going to give you a brief history of my life, because I’m so old that I’ve experienced many of the things that you read about in articles that you have before you. When I went to law school in 1979, I had just taken a gap year, which did not involve me going to school. I was a waitress at the Brown Derby. I was just sick of school and that was very educational. It actually formed a lot of the things that have happened to me since then. I was a union worker. I was sexually harassed by my boss, who didn’t feel that I could say or do anything about that, but found that I could get more tips if I was flirtatious. I’d lived this kind of intellectual life before that, and it really was very helpful to me as I went forward with the rest of my life.

 

I came to law school where twenty percent of my class was women, so obviously everyone else was a man. We had gotten past the question of whether or not women being in law school worked with taking a man’s job, which is what Ruth Bader Ginsburg and Sandra Day O’Connor encountered. We were there, but to some extent there was still reluctance to perceive us as equals. We had very few women law professors, as a matter of fact, I can only remember one, but there may have been more than that. She taught contracts.

 

When I would go on job interviews, I interviewed with a number of firms in Cleveland, and at that time it was perfectly permissible for them to ask you questions like “do you expect to get married,” “how many children do you think you want,” and sometimes they would couch these questions in terms of “where do you see yourself in ten years” and my standard answer was “well as a partner in your firm, of course” and they would sit back and look kind of grim.

April 27, 2017 in Gender, Judges, Technology | Permalink | Comments (0)

Friday, March 24, 2017

Would Gorsuch Follow Supreme Court Precedent on Pregnancy Discrimination

Gillian Thomas, Would Gorsuch Follow Supreme Court Precedent Rejecting Discrimination?

A former law student’s allegations that U.S. Supreme Court nominee Judge Neil Gorsuch last year told a University of Colorado Law School class that women often “use” their employers for maternity coverage, only to quit after giving birth—and accordingly, that female applicants should be questioned about their pregnancy plans—are jaw-dropping, if true. As Emily Martin of the National Women’s Law Center wrote this week in U.S. News & World Report, such opinions contravene a body of sex-discrimination law going back nearly 50 years.

 

Judge Gorsuch was questioned briefly at a confirmation hearing Tuesday about the alleged statements, and not surprisingly, he denied making them. The statements have been corroborated by a second student in the class and contemporaneous documents produced by the original complaining student, but they also have been disputed by other students.

 

Members of the Senate Judiciary Committee should be alarmed by Gorsuch’s refusal to go beyond merely defending his classroom statements and give a full-throated repudiation of pregnancy discrimination, which remains one of the most pervasive barriers to working women nearly 40 years after enactment of the Pregnancy Discrimination Act.

 

There is an even more fundamental legal principle at stake, though, about which Gorsuch remained silent. Gorsuch allegedly told his students that employers not only can rely on stereotypes in making employment decisions—that is, by assuming that a woman will quit once she becomes a mother—but that they should (so that they can “protect themselves”). But the Supreme Court has found, time and again, that it is illegal to rely on a stereotype about a group in making a decision about an individual employee. Does Gorsuch agree? We still don’t know.

 

In the 1978 case City of Los Angeles v. Manhart, the Supreme Court found illegal an employer’s pension plan that required female workers to contribute more to the plan than their male colleagues because actuarial calculations showed that women generally lived longer than men. The plan violated Title VII of the Civil Rights Act of 1964—the federal law outlawing employment discrimination because of race, national origin, color, religion, and sex—because, the Court explained, the law “precludes treatment of individuals as simply components of a racial, religious, sexual, or national class. If height is required for a job, a tall woman may not be refused employment merely because, on the average, women are too short.” Admonished the Court: “Even a true generalization about the class is an insufficient reason for disqualifying an individual to whom the generalization does not apply.”

 

A decade later, the Court ruled that a Big Eight accounting firm’s rejection of a female candidate for partner because she was “macho” and needed “a course at charm school” had violated Title VII: “[W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Soon after, the Court invalidated a battery manufacturer’s policy that prohibited women of childbearing age from holding any job involving contact with lead, which could be toxic to fetuses. (Those risky jobs also, not surprisingly, paid more than others at the company.) That policy, the Court ruled, assumed that any fertile woman was a potential mother, regardless of whether she was sexually active, used birth control, or wanted children. Again, ascribing group characteristics to the detriment of an individual employee—even for allegedly benevolent reasons—was found to violate anti-discrimination principles.

 

In the five decades since Title VII was enacted, myriad other stereotypes have been recognized by courts as motivating illegal discrimination.

For elaboration on the point about Manhart and generalized stereotypes that are true, see my chapter on the case in US Feminist Judgments: Rewritten Opinions of the Supreme Court (Kathy Stanchi, Linda Berger, & Bridget Crawford, eds) (Cambridge Univ. Press 2016). 

March 24, 2017 in Constitutional, Judges, Pregnancy, Reproductive Rights, SCOTUS | Permalink | Comments (0)

Tuesday, March 21, 2017

Remembering Judge Shirley Hufstedler - One of the Famous Firsts

Robert Percival, The Judge Who Climbed Mountains, 69 Stanford L. Rev. (March 2017)

Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their “favorite hobby is mountain climbing” and noted they had made five trips to the Nepalese Himalayas. When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth “walked up and down mountains all over the world.

 
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman’s first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.***

Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at the counsel table when the case was argued before the Supreme Court.

 

California Governor Pat Brown took notice of Shirley Hufstedler’s extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court’s enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: “No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house.” 

 


In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals [after Florence Allen] and the only woman serving at the time.

March 21, 2017 in Judges, Legal History, Women lawyers | Permalink | Comments (0)

Tuesday, February 21, 2017

Judge Nancy Gertner on What it Means to be a Woman Judge

Judge Nancy Gertner, Keynote Speaker, Univ. of Baltimore 9th Feminist Legal Theory Conference (Mar. 2016)

I was on the bench for seventeen years, and I intend to write about that experience. The problem is that while my memoir was funny, this book—on judging—is not. In my memoir, I describe the fact that the only way I could face the discrimination I was facing was to crack jokes about it, to find the humor in horrific situations. I started writing about judging literally the minute I joined the federal bench. I recorded everything I did and why—the palpable change from who I had been on April 26, 1994, when I was an employment discrimination, civil rights, and criminal defense lawyer, and who I was supposed to be on April 27, 1994, when I was sworn in as a judge.

February 21, 2017 in Conferences, Judges | Permalink | Comments (0)

Monday, February 13, 2017

Study Shows Male Justices Interrupt Female Justices More during Oral Agument

Adam Feldman & Rebecca Gill, Echoes from a Gendered Court: Examining the Justices' Interactions during Supreme Court Oral Arguments

Abstract:      

Supreme Court oral arguments are the only publicly scheduled opportunities for the Justices and advocates to directly engage in discussions about a case. There are few rules to regulate these conversations. Within this unique setting and due to the lack of argument structure combined with the limited time allotted to each argument, the Justices vie for chances to speak, sometimes at the expense of utterances from other Justices. In this Article we examine how the Justices’ genders dictate much of the Justices’ interactions and ultimately the power structure of oral argument.

This Article shows how gender is an embedded characteristic of the oral arguments and how the Justices’ appropriations and perceptions of gender roles create disparities in the balance of authority on the Court. The Article’s analysis shows a major gap between male Justices’ interruptions of female Justices and female Justices interruptions’ of male Justices during oral arguments. After discussing why this is problematic, the Article offers suggestions for how the Court can reduce these interruptions through institutional reforms. The Article’s analyses corroborate conversational and power dynamics previously elucidated by sociolinguists, but also extend those findings to the insular environment of the United States Supreme Court.

 

February 13, 2017 in Courts, Judges, SCOTUS | Permalink | Comments (0)