April 5, 2011

1989 Article Reveals Little Change for Women in Private Practice, yet Prosecutor as a Women-Friendly Role

by Angela N. Johnson

According to Raggi’s 1989 article, women lawyers are not achieving positions of professional prominence in the private sector “in nearly the percentages that their numbers and class rank would indicate” (Raggi 1989, 975).  The current inequality of women lawyers in the private sector is similar to Raggi’s article, written back in 1989.  It is discouraging to realize not much has changed for women lawyers in the private sector.  However, Raggi reports in 1989 that women were well-represented as the best and brightest prosecuting attorneys in New York.  Women achieve equality in prosecuting? This is astonishing when taken into account the need for prosecutors to be among the toughest and most aggressive lawyers who must prove themselves to their “clients,” (the government investigators and police).  Though Raggi’s article is mostly anecdotal (and written 22 years ago) it provides a great snapshot of at least one woman’s experience as a prosecutor. For example, Raggi notes that when she left the prosecutor’s office in 1986, every unit in her office had been, at one time or another, headed by a woman Id. at 976.  Additionally, during her years as a prosecutor, she “encountered virtually no gender discrimination” Id. at 975. Why might this be?  Raggi credits the fact the employer is the government and required to enforce a wide variety of laws enacted to ensure equal opportunity for women.  Many women lawyers turn to prosecuting to avoid the less-than-welcoming environments in other areas of practice.

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April 4, 2011

The Integration of Women into the American Judiciary

by Angela N. Johnson

Barbara Palmer provides a statistical overview of the integration of women into the American judiciary and a review of the literature in this area in “To Do Justly: The Integration of Women into the American Judiciary” (Palmer 2001, 235). Moreover, Palmer compiled data from 1971 to 1999 on five indicators in an effort to begin exploring the integration of women into several layers of the American judicial hierarchy. Palmer finds that one of the more prominent explanations for the slow integration of women into the judiciary is similar to other political institutions – the “pipeline” theory. Like many other elected positions, the informal requirements and typical career ladders for judgeshps are unavailable to women, leaving fewer women in the “eligibility pool” Id. at 235. According to Palmer, entry to the judicial hierarchy is more difficult than entry to the legislative hierarchy because while law school is one of many paths to legislative office, a law degree is a required prerequisite for judicial service. Moreover, despite the fact women’s proportionality in law schools is increasing, the proportion of women working as lawyers does not track with the number of women earning law degrees; this further shows that fewer women are among those eligible for judgeships. However, Palmer notes that while one part of the issue is eligibility, another issue stems from the lack of repeat “token” appointments. According to Palmer, one study found that “in states with all-male supreme courts, women had a strong chance of being selected to fill a vacancy, regardless of the selection method. Once a state had a woman on its Supreme Court, though, the chance that another woman would be selected substantially dropped, particularly in states that used an appointment method of selection” Id. at 238.

Palmer notes that the decision-making impact of women judges is clearest in sex discrimination cases and that “research on state supreme courts, the U.S. courts of appeals and the U.S. Supreme Court has consistently shown that female judges tend to be the strongest supporters of women’s rights claims, regardless of their ideology” Id. at 237. Though evidence suggests that women do not bring an entirely different jurisprudence to the court, we know that it has been women attorneys and judges who have brought sex discrimination onto the legal and political agenda.

Source Citation: Palmer, Barbara. “To Do Justly: The Integration of Women into the American Judiciary.” Political Science and Politics 34, no. 2 (June 2001): 235-239.

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April 4, 2011

Judging Alone: Reflections on the Importance of Women on the Court

by Angela N. Johnson

Author Karen O’Connor acknowledges that there is no persuasive evidence[1] for a “womans judicial voice,” but that the representation of diverse women judges impacts public policy favorable to women and is important for socialization and collegiality (O’Connor 2010, 441). One such area that appears to be impacted by women’s presence on the bench is that of gender discrimination cases.  O’Connor reports that scholars believe gender discrimination cases are an exception because women have some shared life experiences that may inform their legal reasoning. This article also considers the experiences of Justice Ginsburg after Justice O’Connor’s departure. In writing this article, O’Connor considered gender discrimination cases before the Supreme Court from 1981 to 2008 to suggest that gender discrimination cases “remain a powerful rallying point for women Judges” Id. at 442. Taking for example, Justice Sandra Day O’Connor’s impact on gender discrimination cases, beginning with her majority opinion in Mississippi University for Women v. Hogan (1982), which ruled certain types of single-sex admissions policies violated the Fourteenth Amendment’s equal protection clause – a “decision Justice O’Connor’s predeceasor, Justic Potter Stewart, would probably not have cast” Id. at 443. Even more compelling, is Justice O’Connor’s impact on her colleagues.  According to the author, in examining gender discrimination cases, after Justice O’Connor joined the Court, “Justice William H. Rehnquist increased his support for gender discrimination claimants from 25% to 50%.  Similarly noteworthy were O’Connor’s apparent effects on Chief Justice Warren E. Burger (32.1 to 50%), Justice John Paul Stevents (57.1% to 83.3%), and Justice Byron White (69.8% to 91.7%). 

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March 30, 2011

Critical Perspectives on Gender and Judging

by Angela N. Johnson

I couldn’t agree more with Kenney’s introduction to the section of “Critical Perspectives on Gender and Judging” in the 2010 (Volume 6) edition of Politics and Gender when she stated that there is an “absence of a gender analaysis of our third branch of government.  Despite the fact that most states elect their judges, most political scientists ignore judicial races, just as most feminist groups that seek to expand women’s political power (such as Emily’s List) do not endorse women for judicial races” (Kenney 2010).  In seeking research materials on this topic, I feel I can attest that Kenney’s assertions about the lack of attention paid to this topic are spot-on.  While there seems to be plenty of scholarship devoted to women’s candidacy for legislative races and efforts to increase the number of women in Congress, little is available on women as judicial candidates or the impact women have on the judiciary. This is surprising because other political scientists have shown that state judicial races share many of the common (downfalls) characteristics of other legislative races.

Within the small amount of scholarship devoted to female judges’ decision-making, results have been conflicted.  While some studies show that gender makes a difference in sex discrimination and divorce cases, other studies suggest gender has no effect Id. at 436.  Interestingly, “Justices O’Connor and Ginsburg reject the “different voice” argument but remain adamant that gender matters and we need more women on the bench” Id. at 437.

In declaring a need for continued (and increased) scholarship, Kenney writes, “Those of us who understand law, courts, judging, and judicial selection have a special obligation to speak to the issues of the day.  Who is sounding the alarm that only 22% of President George W. Bush’s appointments to the federal bench were women compared to 28% of President Bill Clinton’s?” Id at 438 citing Diascro, Segal, and Spill Solberg, 2009). “Who’s is protesting that Idaho and Indiana’s supreme courts no longer have even one woman justice?” Id. at 438.  Kenney argues that the groups of women lawyers, women judges, nor groups aiming to recruit women to public office are trumpeting the importance of increasing the number of women in the judiciary.  Additionally, more support must be given to women judges, who “suffer from a double standard of judicial behavior.  Women earn disapproval for behaviors (even if much less severe) that pass unnoticed in men” Id. at 439.  Kenney points to Justice Sotomayor’s critics charging her with being a “mean interrupting bully – yet analysis showed her to interrupt no more than her current colleagues, and though she asked sharp questions in oral arguments, her tone was much more respectful and less sarcastic than that of Justices John Roberts and Antonin Scalia” Id. at 439.

Source Citation: Kenney, Sally J. “Critical Perspectives on Gender and Judging.” Politics & Gender 6 (2010): 433-441.

 

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March 30, 2011

Women in the Federal Judiciary: Still a Long Way to Go

by Angela N. Johnson

According to the National Women’s Law Center, though the proportion of female law students is increasing, “the number of women in the federal judiciary has stagnated” (National Women’s Law Center 2011).  This is concerning because when women are “fairly represented on our federal courts, those courts are more reflective of the diverse population of this nation” Id. (Note, that this article is aimed at the federal court, but it is as equally important that women are represented in state courts, too!) Studies have shown that women judges “can bring an understandig of the imipact of the law on the lives of women and girls to the bench, and enrich courts’ understanding of how best to realize the intended purpose and effect of the law that he courts are charged with applying.  For example, one recent study demonstrtaed that male federal appellate court judges are less likely to rule against plaintiffs bringing claims of sex discrimination, if a female judge is on the bench” Id., citing Christina L. Boyd, Lee Epstein, and Andrew D. Martin’s Untangling the Causal Effect sof Sex on Judgeing, 54 AM. J. Pol. Sci. 389 (2010), available at http://epstein.law.northwestern.edu/research/genderjudging.pdf.  Also see Jennifer Peresie’s Female Judges Matter, which studies Title VII sex discrimination cases on three-judge appellate panels.

Current Statistics on the Federal Judiciary:

  1. Though the current makeup of the United States Supreme Court contains the highest proportion of women in history (3 of the 9 justices are women), only four of the 112 justices ever to serve on the highest court in the land have been women.
  2. Forty-nine of the 162 (30.2%) active judges currently sitting on the thirteen federal courts of appeal are female. But when broken down by circuit, a disparity becomes clear:
    1. The 8th Circuit has only one female judge among its eleven members, who is the only woman ever to have been appointed to that court.
    2. Women comprise just 10% of the judges serving on the 10th Circuit.
    3. Approximately 28% of the active United States district (or trial) court judges are women.
    4. The numbers are even smaller for women of color; there are 58 women of color serving as active federal judges across the country: 32 African American women, 20 Hispanic women, and six Asian-American women.  There are no Native American women among the over 750 active federal judges across the country.  There are just 9 women of color on the U.S. courts of Appeals – four of whom sit on the 9th Circuit, two on the DC Circuit, and one on each of the 1st, 4th, and 7th Circuits.  This means there are eight federal courts of appeals without a single active minority woman judge.
    5. Of President Obama’s 117 judicial nominees to date (including his nominees to the Supreme Court), 53 are women. 49% of his confirmed nominees have been women.

Source Citation: National Women’s Law Center. “Women in the Federal Judiciary: Still a Long Way to Go.” http://www.nwlc.org. March 8, 2011. http://www.nwlc.org/resource/women-federal-judiciary-still-long-way-go1 (accessed March 21, 2011).

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March 30, 2011

Surprising Research on Women Lawyers’ Likeability v. Competence

by Angela N. Johnson

The authors open their article arguing that although women in politics “seem to face a choice of being seen as likeable or as competent, but not as both . . . [women] lawyers do not seem plagued by this same double bind . . . there is no difference between how female and male lawyers are perceived” (Schneider, et al. 2010).  The authors reflect on the 2008 “Palin v. Clinton” “Likeable v. Competent” model as an example of the struggles women politicians have in balancing competent but “hard” and unlikeable with not competent, but good looking and likeable (they can’t have it both ways, the authors argue).  Part of the problem stems from socially constructed (and maintained) steretypes of what is feminine.  According to the authors, this handicaps women who engage in assertive behaviors.  This continues despite women comprising 49.8% of the U.S. Workforce  (Schneider, et al. 2010, 367).  According to the National Association for Legal Career Professionals (NALP), the 2008 statistics show that while women make up 45.3% of associates, they only make up 18.7% of partners Id. at 368.

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March 29, 2011

Research Reveals: The Process of Becoming a Judge is Different for Women

by Angela N. Johnson

Margaret Williams surveyed Texas judges and lawyers and found significant differences between men and women, both for those in the judiciary and those who could be members of the judiciary.  Moreover, informal requirements for attaining a seat on the bench could be a factor keeping qualified candidates from seeking a judgeship (M. S. Williams, In a Different Path: The Process of Becoming a Judge for Women and Men 2006, 104). Williams looks beyond the selection system to gain an understanding of how the process of becoming a judge is different within the groups running under that selection system, which provides a more individual-level explanation. Moreover, Williams argues that studies on selection “conclude that while the number of women in the eligible pool of judges and the size of court affect women’s representation, selection systems do not” Id. at 105-106 citing Elliot Slotnick Judicial Selection Systems and Nomination Outcomes: Does the Process Make a Difference? (1984).

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March 27, 2011

A Closer Look at President Carter’s Groundbreaking Judicial Appointments

by Angela N. Johnson

Mary Clark’s article focuses on President Carter’s appointments of women to the federal bench and the impact this made on future judicial appointments. According to Clark, “Carter’s groundbreaking appointment of women judges was motivated by his commitment to women’s equality as a human right and was achieved through substantial reliance on merit selection and affirmative action principles” (Clark, Carter’s Groundbreaking Appointment of Women to the Federal Bench: His Other “Human Rights” Record 2003, 1132). Prior to Carter’s term in office, just eight women had been confirmed to Article III judgeships (Presidents Roosevelt, Truman, and Kennedy each appointed one woman, Johnson appointed three women, Nixon and Ford each appointed one woman).  When Carter took office in 1977, just “one woman served among ninety-seven judges on the federal courts of appeal and five women among nearly 400 district court judges. By the time he left office in 1981, Carter had appointed forty women to Article III courts of general jurisdiction; eleven at the appeals court level and twenty-nine at the district court” Id. at 1133. The contrast of Carter’s appointments is clear when recognizing that 15.8% (or one in six) of Carter’s 259 judicial appointees were female, compared with less than one percent of each of his predecessors’ appointments.

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March 27, 2011

Justice Ginsburg’s Tribute to Judicial “Way Pavers”

by Angela N. Johnson

This article was taken from Ginsburg’s address at the Annual Conference of the National Association of Women Judges in Atlanta, Georgia on October 7, 1995.  In her address, Ginsburg discusses three “way pavers” who made women’s inclusion in the judiciary more than just a rare curiosity.  Judges Florence Ellinwood Allen, Burnita Shelton Matthews, and Shirley Mount Hufstedler – those among the first women to be seated on the federal bench, are discussed. Continue reading

March 21, 2011

A Closer Look at Bradwell v. Illinois

by Angela N. Johnson

Gwen Howerr Jordan’s article “Horror of a Woman” is extremley insightful in that it delves deep into the legal reasoning and procedure in the Bradwell v. Illinois case.  Moreover, Jordan’s article reveals an important insight that challenges modern interpretations of Bradwell v. Illinois, suggesting that Justice Bradley’s infamous concurring opinion in which he supports continued separate spheres was perhaps not the dominant ideology of the day (Jordan 2009, 1202).  According to Jordan, the opinion’s endorsement of the separate spheres argument was not as widely and uncritically accepted as Justice Bradley implied at the time of the Bradwell court decision.  Moreover, when looking at the Bradwell case (and the actions of Myra Bradwell, herself), this context allows the modern day reader to view the case as a strategy used to pursue women’s emancipation and equality under the Fourteenth Amendment, including the ability of women to enter the public sphere.  Bradwell used her case to advance women’s rights beyond opening the legal profession to women by arguing the 14th Amendment Equal Protection Clause should be applied to women and the Privileges and Immunities Clause barred sex-discrimination in employment. Though Bradwell’s fight did not end in a grand victory, “Bradwell was ultimately admitted to both the Illinois and the Supreme Court Bars.  By 1950 every state in the Union admitted women lawyers.  In 1971 the Supreme Court began using the Equal Protection Clause to strike down sex discrimination” (Jordan 2009, 1205). Jordan, by laying the foundation of Bradwell’s commitments and positions within women’s suffrage argues that Bradwell’s fight for a law license was primarily to advance women’s equality and that her own career choice (obtaining the license) was secondary. However, “Bradwell had never fought against marriage or motherhood, but she had always argued that being a wife and mother should not limit a woman’s citizenship status or be a barrier to a woman working in her chosen profession.  Bradwell wanted equal rights, not revolution” (Jordan 2009, 1218).

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