Abstract
Until recently, very few women have been appointed to the judiciary, which remains a male-dominated institution, numerically and symbolically. Gender & Justice explains “how women ascended to positions of judicial power and how gender structures the judicial selection process” (p. 19). Using comparative empirical case studies, Kenney distills the importance of political context in understanding women’s attempts to become judicial officers. Whether or not judicial selection relies on elections, the significance of gender for judicial appointment depends on politics. In some cases, appointing women judges has been an explicit goal of political leaders and social activists. In others, alliances between feminist insiders and outsiders have been essential, while elsewhere, gender politics have seemingly been incidental. Kenney traces “what the politics of including women in the judiciary have been and what consequences they have had, and argue[s] that it does matter for women—as well as justice—that women be represented in this portion of our democratic political institutions” (p. 9).
There are eight chapters, including an introduction and conclusion. Chapter two sets the framework by canvassing arguments around gender, judging, and difference. Chapter three analyzes the 1977 appointment and subsequent election of Rosalie Wahl to the Minnesota Supreme Court. The state governor expressly adopted a policy of appointing the first woman to this court, which became “a focusing event for Minnesota feminists” (p. 51). Kenney’s analysis of her papers, especially congratulatory letters, demonstrates the emotional intensity surrounding Wahl’s appointment.
Chapter four addresses women’s entry to the U.S. federal courts. President Carter appointed more women to the federal bench than all previous presidents combined. His commitment to merit selection coupled with a policy of appointing more women judges was accomplished through the work of Margaret McKenna, a deputy White House counsel. She charged the nominating commissions with generating lists that included women and minority men and galvanized the women’s movement to lobby for candidates. “It took a feminist insider, partnered with outsiders, to help him [Carter] unify his concerns about judicial selection and women in government jobs” (p. 83). Here, Kenney provides an excellent overview of how articulations of merit have disadvantaged women.
Appointments of women to the judiciary are neither incremental nor assured. Kenney describes the backlash that characterizes representativeness and diversity as undercutting merit in the failed reelection of Rose Bird, Chief Justice of the California Supreme Court in 1986 (chapter seven). In contrast to Wahl, Bird was cast as less deserving with less emotional connection to women voters. The biographical detail of Bird’s career is fascinating.
In the United Kingdom, judges do not have the same public visibility as in the United States (chapter five). Britain appointed the first woman judge, Lady Justice Brenda Hale, to its highest appellate court in 2003. In this case, feminists successfully linked the absence of women judges to the Labour Party’s quest for modernization: “Britain needed more women judges, not so much for gender equality in itself, but because gender equality signaled a modern judiciary” (p. 88). The judiciary had come to be seen as narrow, elitist, and conservative. The vast power of the Lord Chancellor in making judicial appointments, after a “tap on the shoulder,” was replaced by a Judicial Appointments Commission (JAC). There are now more women appointed to lower courts, but less progress regarding higher judicial office.
Representation underpins the logic of the European Court of Justice (chapter six). While many claim courts are not representative institutions, in this supranational court, national representation is paramount but not gender representation. The first woman judge was not appointed until 1999. Kenney again exposes the sometimes twisted arguments about representation and the merit principle.
That brings me to the subtitle: Why Women in the Judiciary Really Matter. Kenney turns around the question about women’s inclusion in the judiciary to ask why women should be excluded. This effectively discards arguments about the differences women are hoped or feared to bring to positions of authority. Kenney musters compelling institutional reasons. Legitimacy, public confidence, and democracy demand that large portions (half) of the citizenry should not be excluded from courts as “powerful institutions of government” (p. 2).
This book is the culmination of many years of careful research and activism. Kenney’s scholarship is thorough and extensive, displayed in detailed notes and the array of themes covered. Each chapter addresses distinct and important theoretical issues including emotions and social movements, political activism and organization, the politics of representation, and modernization. For the sociologist there are some notable absences. She talks about “doing gender” but does not refer to the seminal Gender & Society article of the same name and talks of “framing” without reference to Goffman’s Frame Analysis (1974). Nevertheless, as part of the Routledge Perspectives on Gender Series, the book makes a key contribution to the developing international scholarship on gender and judging.