Monday, June 23, 2014
I usually don't publicize older articles on SSRN but I saw this interesting piece (recently uploaded) by Syracuse's Keith Bybee, who is always interesting. The abstract reads:
What do we talk about when we talk about gender imbalance on the bench? The first thing we do is keep track of the number of female judges. Once the data has been gathered, we then argue about what the disparity between men and women in the judiciary means. These arguments about meaning are not freestanding. On the contrary, I claim that debates over gender imbalance occur within the context of a broader public debate over the nature of judicial decisionmaking. I argue that this public debate revolves around dueling conceptions of the judge as impartial arbiter and as politically motivated policymaker. These two conceptions provide the only current options for making sense of gender imbalance. Calls for gender equity do not fit easily with the conventional conception of impartial adjudication; as a result, arguments about the importance of increasing the number of female judges tend to be assimilated into the conventional conception of preference-driven policymaking. Thus, given this structure of debate, discussions about the meaning of gender imbalance typically devolve into bickering about politicized courts. I conclude by considering how arguments about gender imbalance might be productively re-cast by moving beyond the basic conceptions that currently structure debate over the courts.