REIMAGINING THE JUDICIARY: WOMEN’S REPRESENTATION ON HIGH COURTS WORLDWIDE, by Maria C. Escobar-Lemmon, Valerie J. Hoekstra, Alice J. Kang, and Miki Caul Kittilson. Oxford: Oxford University Press. pp.215. Cloth: $85.00. ISBN: 978-0-19-886157-7.
Reviewed by Laura Moyer. Department of Political Science. University of Louisville. Email: laura.moyer@louisville.edu.
Every so often, a study comes along that fills a sizable hole in multiple literatures. REIMAGINING THE JUDICIARY: WOMEN’S REPRESENTATION ON HIGH COURTS WORLDWIDE is one such book. This book takes a mixed method approach to investigate what factors drive the appointment of women to national high courts. It is easy to see why Escobar-Lemmon, Hoekstra, Kang, and Kittilson were just awarded the 2022 C. Herman Pritchett Award for “Best Book on Law and Courts”, along with Gibson and Nelson’s excellent JUDGING INEQUALITY: STATE SUPREME COURTS AND THE INEQUALITY CRISIS. REIMAGINING THE JUDICIARY makes a valuable contribution to research on diversity and judicial selection, greatly advances the comparative courts literature, and engages with institutions that are often overlooked by the comparative literature on gender and political institutions (Thames and Williams 2013).
Outside of the scholarly community, this book is also important for the insights that it offers to practitioners. For one, by taking on the “supply is everything” argument about women’s representation on courts, they allow for an empirical case to be made to revisit formal and informal selection processes, and they emphasize the importance of international mechanisms that promote gender equality (like CEDAW). This project also offers encouragement for the work of women’s INGOs by showing how such groups can put pressure on those who select judges, and how these groups have helped aspiring women judges navigate the judicial selection process.
One of the biggest contributions of the book is the impressive feat of data collection undertaken by the authors. Escobar-Lemmon et al. have built a cross-national, longitudinal dataset of composition of high courts in countries with a 2010 population of at least 200,000 (1970-2013). There is a reason why other previous works were not as exhaustive: compositional data on judiciaries (even high courts) is much harder to acquire than it might seem. To wit, the authors’ quantitative data is more expansive in time and place than those collected by the World Bank, the UN, or the Council of Europe. I would direct readers not to overlook the website associated with the book, which contains the book’s replication data along with great archival photos, data visualizations, and a bibliography of important work on the topic. This is a fabulous resource for both researchers and students, and it highlights a diverse group of scholars.
In addition to the cross-sectional, longitudinal dataset, the book draws on interviews and archival data to explore a group of countries more in depth. Here, they connect to and are in dialogue with the rich literature of qualitative work on women and judiciaries around the world. The five countries selected for the case study portion of the analysis (U.S., Canada, Ireland, Colombia, and South Africa) vary in terms of level of wealth, region, women’s presence in legislative bodies (including whether gender quotas are utilized), and the gender composition of the head of state and executive branch ministers. In spite of these differences, all five countries have had at least a third of seats on their high courts occupied by women at some point in time.
The motivating questions of the book are what drives the first appointment of a woman to a high court. So, what ensures the subsequent representation of women on the bench? Their central argument is that the supply side, or pipeline explanations about women’s representation on courts, are insufficient by themselves. Indeed, some countries’ representation of women (e.g., South Africa and Canada) far exceeds what would be expected if the pipeline was all that mattered. Beyond supply side factors, the authors argue that two other factors are essential: domestic institutions and international influences on women’s participation in governance. This argument has important implications because it challenges the hands-off perspective; that progress in women’s representation is somehow inevitable, or simply a function of women’s lack of interest or qualifications.
Another strength of the authors’ argument has to do with their “so what” justification. Importantly, they move beyond asserting that gender parity or women’s representation will magically increase a court’s legitimacy as the central or sole normative justification. The impact of women’s judicial representation on court legitimacy is actually an open empirical question, and is likely to vary with the court and society in question. Institutional legitimacy is complex and has generated a healthy dialogue among political science scholars of the U.S. Supreme Court (Bartels and Johnston 2013; Gibson and Nelson 2015) about whether assessments of a court’s rightful exercise of authority are primarily a function of ideological agreement with decisions. As such, I appreciate that the central justification for the book is that there is an “intrinsic good” (p. 3) rationale for gender parity on judiciaries; namely, that it is a basic human right to participate in decisions that affect oneself. Beyond this intrinsic argument, there are also a series of instrumental reasons that the authors provide that are related to court functioning (such as enhanced deliberation and changes to group dynamics among judges) and outward facing concerns (e.g., symbolic representation can help build the pipeline of future women judges). I also appreciate that the authors do not view women judges as a uniform group with uniform priorities. They acknowledge that women have diverse perspectives which may affect how they administer justice. For a book with a global scope, this is an important stance to take.
The book is organized into three parts. In Part I, the authors utilize their large dataset to analyze what predicts the appointment of the first woman to a high court (chapter two) and what influences explain how close to gender parity a high court becomes (chapter three).
Among the key findings in chapter two, domestic institutions do not predict when a country appoints its first woman justice. Instead, the pipeline of women, coupled with the number of women INGOS and action by regional peers, seems to propel a country to depart from an all-male judiciary. The role of regional peer pressure can be seen in Sandra Day O’Connor’s appointment to the U.S. Supreme Court, which eventually led Canada to appoint its first woman (Bertha Wilson). Notably, countries that have never appointed a woman (between 1945-2020) tend to be lower population countries connected to the Commonwealth in North Africa or the Middle East. The reasons that these courts remained all-male in their composition deserve further exploration in future work, including comparing them with regional peers who took a more inclusive path (particularly in Africa).
It may be surprising for some readers to see which countries were the earliest in appointing their first woman. France (1946) and Poland (1948) are followed by Germany (1951), Denmark (1953), Turkey (1954), Hungary (1956), and Taiwan (1956). A theme that arises throughout the book is that large, wealthy democracies in the Global North are not necessarily better at women’s representation in courts than other countries – and are often worse. For instance, the world’s largest Muslim country, Indonesia, appointed its first woman justice in 1968, more than a decade before the United States (1981) and almost four decades before the United Kingdom (2004).
In chapter three, the authors investigate where women have made the most gains, noting that there is not necessarily a link between appointing the first woman and having subsequent courts with gender equity (p. 43). Again, we see that wealthy Global North countries do not lead the way with respect to women’s representation; a fascinating table on p. 45 shows that, for instance, Honduras has the longest single period with gender parity (1996-2009). The authors leverage their data effectively, showing country-level variation within region and variation over time in region. In the multivariate model, they find that supply-side factors do not wield an influence on gender composition, but rather court size, regional peer effects, and (to a lesser extent) time, since CEDAW ratification are associated with greater representation of women on high courts. The chapter also has a very interesting section that looks at backsliding courts who revert to all-male, either for a short period of time or in a more enduring way (e.g., Iran after the 1979 Revolution). One compelling backsliding story comes from Colombia, where the first female justice on the Supreme Court (Magistrada Fanny Gonzalez), along with her male colleagues, were assassinated in a gruesome attack on the court in 1985. This made it difficult to persuade subsequent potential female replacements to join either the Colombian high court, Supreme Court, or Constitutional Court until 2001. Overall, this chapter covers a lot of territory and makes for fascinating reading.
In Part II, the authors take each one of the components of their central argument , and utilize a qualitative approach through each of their five case study countries. Chapter four, “Pipelines to High Courts”, provides a valuable narrative discussion of the typical pathways to the judiciary in each of the five case study countries, filling in context to complement the large-n analyses undertaken in Part I. The diagram of the typical pathway in each country (p. 78) is very instructive, and would be a great teaching resource in a comparative politics, or judicial process class.
One of the key insights of both chapter four and chapter five “How Institutions Influence the Appointment of Women to High Courts”, is that seemingly neutral requirements about professional qualifications (e.g., barrister versus solicitor, number of years of experience) are frequently gendered in ways that create obstacles for women. Another advantage of these case studies is that they drive home the point made in Chapter three: namely, the pipeline of eligible women is often not connected to the presence of women on national high courts. For instance, the share of Black women on South Africa’s Constitutional Court exceeds the share of women (generally, and Black women in particular) in the pool of advocates and senior counsel. In chapter five, the authors further explore the politics of representation in the South African case, and how demographically homogeneous selection bodies can fail to appreciate the significance of intersectionality when considering race/ethnicity and gender. Across all their cases, the authors conclude that a country’s use of accountable selectors in their selection process does not guarantee women’s representation because informal institutions can be just as (or more) powerful as formal institutions. Interestingly, the authors conclude that party ideology operates with the most force in the U.S. (compared to the other cases) when it comes to incentives for selecting women. This is important, as this factor was not included in the multivariate models in Part I.
In chapter six, the authors turn to a discussion of how international influences (e.g., CEDAW ratification and reporting, activism of women’s INGOs) affected women’s representation in each of their cases. This chapter does an effective job of laying out a process by which global or regional norms about gender equality are established and identified in instances whereby advocacy groups helped to promote or reinforce these norms. Interestingly, the appointment of women judges onto international courts can create positive peer pressure for countries to do so domestically (Dawuni 2017). And of course, the priorities of women’s organizations are not always focused on the appointment of women judges per se, but sometimes more on the content of their decisions, as was the case in Colombia. The director of the NGO Women’s Link Worldwide emphasized that it was not enough for judges to be women, but that they had to prioritize the protection of women and girls (p. 143).
In their conclusion in Part III, Escobar-Lemmon and colleagues highlight the way that the appointment of the first woman on a national high court allows for a “reimagining” of who can be a justice, and how it can spur future generations of girls to aspire to become judges. Encouragingly, after selecting their first woman justice, most countries do not return to all-male courts. This is akin to the “concrete floor” concept found in other institutional contexts (Annesley, Beckwith, and Franceschet 2019). The authors also argue that accountability is key for promoting diversity on courts, highlighting the limited use of gender quotas on judicial institutions and the need for benchmarking as part of accountability processes. To this end, I hope that the Women on High Courts Database can be continually updated, like other similarly groundbreaking datasets in the law and courts field (e.g., Spaeth Supreme Court Database), to fuel continued attention by future generations of scholars, and to hold countries accountable. On the normative side, the authors aligned themselves with other scholars (e.g., Hunter 2015; Kenney 2012; Lazos Vargas 2004) who have argued that feminist judging – in its many forms – is judging that “considers stakeholders who have been excluded or marginalized in the past and contextualizes the facts of the faces” (p. 159). However, the authors caution that appointing more women judges does not necessarily lead to feminist judging, and their definition of feminist judging can be done by men as well. Because women, themselves, are a diverse group on many dimensions, it is left for future research to tease out the ways that intersectional forces affect whether and how many women make it to judgeships on their countries’ high courts. This book provides a good starting point for other scholars to make this leap.
REFERENCES:
Annesley, Claire, Karen Beckwith, and Susan Franceschet. 2019. CABINETS, MINISTERS, AND GENDER. Oxford: Oxford University Press.
Bartels, Brandon L., and Christopher D. Johnston. 2013. "On the ideological foundations of Supreme Court legitimacy in the American public." AMERICAN JOURNAL OF POLITICAL SCIENCE 57(1): 184-199.
Dawuni, Josephine Jarpa. 2017. "Akua Kuenyehia: Leaving a Mark Along the Journey for Human Rights." In INTERNATIONAL COURTS AND THE AFRICAN WOMAN JUDGE, pp. 58-76. Routledge.
Gibson, James L. and Michael J. Nelson. 2015. “Is the U.S. Supreme Court’s Legitimacy Grounded in Performance Satisfaction and Ideology.” AMERICAN JOURNAL OF POLITICAL SCIENCE 59(1): 162-174.
Hunter, Rosemary. 2015. "More than just a different face? Judicial diversity and decision-making." CURRENT LEGAL PROBLEMS 68(1): 119-141.
Kenney, Sally J. 2012. "Choosing judges: A bumpy road to women's equality and a long way to go." MICHIGAN STATE LAW REVIEW 1499.
Lazos Vargas, Sylvia R. 2004. “Does a diverse judiciary attain a rule of law that is inclusive: what Grutter v. Bollinger has to say about diversity on the bench.” MICHIGAN JOURNAL OF RACE AND LAW 10: 101.
Thames, Frank C. and Margaret S. Williams. 2013. CONTAGIOUS REPRESENTATION: WOMEN’S POLITICAL REPRESENTATION IN DEMOCRACIES AROUND THE WORLD. New York: NYU Press.
© Copyright 2022 by author, Laura Moyer.
