Make Room on the Bench

U.S. law schools now graduate as many women as men, and women are nearly half of all law firm associates. But representation in the judiciary branch is far from equal, a recent study shows.

As women finally graduate law school at the same rates as their male counterparts, not nearly enough of these competent women are making it to the judicial bench. An alarming study released by the Center for Women in Government and Civil Society (CWGCS)—an organization dedicated to women’s leadership development and policy research at the State University of New York at Albany in New York—shows that though there are plenty of women qualified to serve as judges, women are largely underrepresented in the judiciary.

In no state is there equal representation of women in federal or state-level judgeships. Women fill only 26 percent of all seats in state courts and a mere 22 percent of seats in federal courts. Even worse, women are entirely absent from a number of court benches across the country, including the U.S. Bankruptcy Courts in Alaska, Hawaii, Idaho, Indiana, Iowa, Maine, Mississippi, Montana, Nebraska, New Hampshire, Oklahoma, South Dakota, Vermont, Virginia and West Virginia. Women are also missing from the Supreme Courts of Idaho and Indiana, and the Alaska Court of Appeals.

The results shed light on the significant gender disparities in our court systems and the pressing need to get women on the bench.

“The court system plays a crucial role in ensuring that justice is a reality for all citizens,” says the Women’s Law Project, an organization comprised of feminist lawyers fighting for justice and equality. Women make up over half of our population but are not given an equal voice in our judicial system. “In a diverse society,” Women’s Law Projects asserts, “this is extremely important and should be emphasized.”

For many, the jury is still out on the impact of gender diversity in the judiciary. Empirical research about whether women judge differently continues to be a hot research item in academia and debated in the public media. Those who followed the recent Supreme Court appointment of Sonia Sotomayor recall the heated dialogue surrounding her 2001 speech at the University of California, Berkeley School of Law, in which she shared her “hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Justice Ruth Bader Ginsberg took much less heat when she said simply: “women bring a different life experience to the table.”

Though research on the subject of gender and judging shows somewhat murky results, a clear trend has emerged: a judge’s gender makes a noteworthy difference in cases where gender plays a starring role. The most contemporary study (“Female Judges Matter,” 2005) indicates the significance of gender in judging cases involving sex discrimination. It concluded that female judges were more likely to decide in favor of plaintiffs alleging sex discrimination than their male judge colleagues. It also showed that when women judges sit on appeals panels with men, “the men are significantly more likely to rule in favor of the rights litigant”—meaning the plaintiff fighting for his or her rights.

Regardless of any gender difference in rulings, the reasons to fight for gender balance on the bench are obvious. Women need to play a role in shaping the public policy that touches them so intimately—domestic violence, abortion, sexual assault, employment discrimination. Women want a representative democracy that is more representative.

It’s not entirely clear yet why women are remarkably underrepresented in the judicial field. CWGCS suggests that women are not yet given the access or opportunity. The old boy’s club is hard to break into, after all, and it is only in our recent history that women have been welcomed into the legal profession at all. “I suspect plenty of male judges out there got their appointments not just because of superior intelligence and wisdom but because of the ‘old boys’ network,” wrote Vermont Law School Professor Cheryl Hanna in Vermont’s Seven Days, Vermont’s Independent Voice. “Make no mistake,” she wrote, “gender preference—for men—has always been a factor in judicial appointments.”

The White House and Senate control appointments to the federal bench, but state judges may be elected or appointed. A 2009 study on judicial diversity in state courts from the Brennan Center for Social Justice (NYU) noted that both merit and election systems are “equally challenged” in regard to moving women and minority men onto the bench. The researchers discovered that too few states have “systematic recruitment efforts to attract diverse judicial applicants.”

The numbers may also be attributed to the fact that many women drop out of big law practice—at least the kind of work required to be considered for judicial appointments or elections—to raise their families. While according to the CWGCS study women make up 45 percent of law firm associates, it is not a hidden fact that a serious law practice and a rich family life are mostly incompatible. The legal profession hasn’t yet figured out how to successfully fit women—or, for that matter, men who want to spend more family time—into the equation.

Dina Refki, director of CWGCS, suggests that a big part of the problem is that “stereotypes about women’s qualifications and ability to perform as effective judges still prevail in the culture.” No matter that there are “large pools of women who are equally qualified to serve on the bench.”

But “step by step, with patience and great skill, women are making historic changes in the face of the judiciary in our state, and in the nation as a whole,” said Alaska Supreme Court Justice Dana Fabe at last year’s National Association of Women Judges conference. “And we’re doing it together, as colleagues and friends, with mutual encouragement and support, and with no small dose of the grit and commitment.”

Refki advocates for a good hard look at the institutional structure responsible for judicial appointments and elections. Reforming antiquated systems, she contends, will “level the playing field for women.” As women rise through the ranks, much stronger emphasis must be made on placements and appointments of women throughout the judicial system.

The bottom line—it’s simply a matter of fairness. Women deserve an equal part in one of our nation’s most powerful institutions.