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Judicial Diversity: Of Gender in Particular

In an earlier post I gave some details of the composition of the current Irish Supreme Court and of the backgrounds of the four men tipped to fill the seat left vacant by Mr. Justice Kearns’ move to the Presidency of the High Court.  Yesterday, a prominent senior counsel criticised the practice of indirect lobbying by senior lawyers (direct canvassing is forbidden) with ambitions to be appointed to the bench, raising the difficult question of the role of political connections in the selection of Irish  judges. The choice – if you follow what the newspapers say- is between four highly accomplished and well respected men. Within the narrow range of options, a move towards greater diversity on the Supreme Court might involve selecting a man in his fifties rather than his sixties, a constitutional lawyer rather than a private lawyer, a Protestant rather than a Catholic, or a man who went to a state Catholic school in the city rather than to a private Catholic boarding school. It might, at a – perhaps unimaginable – stretch, involve the appointment of a lawyer trained in Cork or Galway or one who made his name taking cases against the state rather than in its service.

The newspapers’ foursome of Brady, Clarke, O’Donnell and O’Neill ought, perhaps, to be taken with a pinch of salt but it does reflect, with a reasonable degree of accuracy, the selection of candidates available when we restrict Supreme Court appointments to a certain  – under current conditions inevitably – fairly homogenous section of society. It will be a long time, for instance, before we see an appreciable number of  faces in that group of any colour other than white. When will we see more women? Since the judicial appointments process has been opened up to solicitors, the number of women in the group of potential judicial appointees has increased; in particular because more women are senior solicitors than are senior barristers. In 2008, 36 women were senior counsel compared to over 200 men, yet women are set to outnumber men at the Bar by two to one come 2010. What options for placing brilliant women lawyers on the Irish Supreme Court  might present themselves if academic lawyers were eligible for appointment to the bench? Professor Fionnuala Ni Aolain’s nomination to the European Court of Human Rights offers a glimpse of the pool of talent lying untapped, as does the British encounter with Baroness Hale (on which see an interesting article by Durham’s Erika Rackley here).

Should we care about judicial diversity? This, of course, is the question which dominated Sonia Sotomayor’s appointments process in the United States. There are two points at which we might care: entry and outcome. At the point of outcome, it is difficult to say whether anything other than a symbolic function is performed by installing a palpably gender balanced Supreme Court bench.  Now,  the University of Ulster’s Dermot Feenan in his work on gender diversity in the judiciary downplays the argument that women as such judge ‘in a different voice’. Nevertheless, he suggests that where the judicial norm is male, women come to the bench with a different set of experiences and approaches which can enrich our understanding of judging and judicial authority. Rackley makes a similar argument about Baroness Hale here.

At the point of entry, it seems obvious that we should be concerned with the extent to which, in Feenan’s words women who ought to reach the bench, or its higher rungs  never do because of ‘structural discrimination and exclusion, imbricated in the constitution of the judge, judging and judicial authority as male, masculine, white, heterosexual, able-bodied and class-privileged’. In 2003, the Trinity College Dublin report Gender In Justice recommended that the judicial appointments process be reformed to increase the proportion of female applicants for appointment to the bench. It argued that:

  • Gender balance should be sought when members are appointed to the Judicial Appointments Advisory Board.
  • Increased participation by laypersons on the Board should be considered.
  • The Government should no longer have discretion to appoint a person not on the panel of names recommended by the Board.
  • The Board should have a role in all judicial appointments, even where an existing judge is promoted.
  • The criteria for appointment should be reviewed with an eye towards transparent meritocracy.
  • Consideration should be given to appointing barristers to the bench who have not been appointed Senior Counsel.
  • Part-time appointments to the bench should be considered.

These recommendations are consistent with an ‘equality of opportunity’ model for improving women’s representations on the higher courts. But there may also be arguments – as Kate Malleson of Queen Mary, University of London – sets out in a recent paper published in Legal Studies (hat-tip to Colin) for positive action to redress the representational imbalance. We may be required to do more than level the playing-field. It seems clear, in any event, that the appointments stage is only one front on which the battle for greater judicial diversity should be fought.  As Gender In Justice also noted, we must also be concerned with the career stages leading up to eligibility for appointment; with the paths to entry into law school, with legal education, with the conditions of survival at the Bar, with safeguarding women in practice against direct and indirect gender discrimination, with alleviating the unequal sharing of parenting burdens. We should also be concerned with the public reception of women as judges and attentive to the subtle ways in which the media, in particular, reproduce the structural imbalances which make it so difficult for women to be appointed as judges in the first place, once they are actually in position: Margaret Thornton has a very interesting article on this point here.

Gender and judging is a hot topic right now. For further reading on women and judging, with a subscription you can see the special Women and Judging issue of Feminist Legal Studies (Volume 17 (1) of April 2009).  Articles from the May 2009 Gender and Judging  edition of the International Journal of the Legal Profession are available here as part of the Law and Society Association’s collaborative Gender and Judging blog.

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