Judicial diversity, the woman judge and fairy tale endings

Abstract

The story of the woman judge as one of exclusion and isolation plagued with allegations of bias is well documented. Interestingly, despite significant differences in time and place, a common theme unites these tales: the woman judge is a dangerous outsider, a threat to the aesthetic norm. The judicial climate, at least in most of the common law world, is somewhat chilly: reactions to her presence on the bench vary from the largely indifferent to the downright hostile. Why is this? After all, most people, perhaps acknowledging the political and democratic gains underlying calls for a more representative judiciary, would wish to encourage – or at least not discourage – judicial diversity. Taking the stories of the woman judge as its starting point, this paper contends that underlying these tales is an image of the judge that is as much intuitive as it is reasoned; that our understanding of the judge and judging is as much derived from the imagination as from what is conventionally considered as rational thought. Thus, the paper deploys the narrative strategies of fairy tales in an attempt to disrupt the imaginative hold of familiar yet particular images that infuse and distort current discourses on adjudication. It suggests that despite the Department for Constitutional Affairs’ ongoing quest to increase diversity within the judiciary, current initiatives do not confront fully these instinctive images. As a result, their narrative of inclusiveness and difference fails. In response, the paper appeals to the imagination as a route toward engendering new conceptions on the judge and judging, the possibility of truly diverse judiciaries and, perhaps, a fairy tale ending to the woman judge’s story.

Entering the Australian Judiciary: Gender and Court Hierarchy

“…Most notable are broadly similar personal and social characteristics and experience as a solicitor across several areas of legal practice. These shared features suggest that encouraging recruitment of women—inclusive diversity as described by Erika Rackley (2007)—may not automatically increase “viewpoint” diversity (see also Maveety 2010) as much as proponents hope or critics fear.…”

Detailing Judicial Difference

“…1)-but also risky; the strategic deployment of difference is grounded in ''dangerous and unanswerable'' myths (O'Connor 1991, p. 1557), which threaten not only to lure the unwary toward the quagmire of essentialism but which also work to effectively silence the polytonality of women's voices (Harris 1990;Cain 1989Cain -1990. Moreover, the possibility of judicial difference goes to the heart of Herculean understandings of the judge and judging; ''to wish for otherness in adjudication represents a move in a profoundly dangerous game'' (Berns 1990, p. 33)-as Justice Wilson (and others) discovered to their cost (Hunter 2006;Rackley 2007b). Compare, for example, attempts by the right-wing women's group, REAL Women of Canada, to remove Justice Wilson from the Canadian Supreme Court on the basis that her tentative suggestion that women brought particular and different perspectives to their judicial role (Wilson 1990) revealed her as ''a feminist judge who had violated her own judicial oath of impartiality and [who] was accordingly incapacitated from the execution of her judicial duties'' (Anderson 2002, p. xiii)-with Phillips' (2003 reaction to Baroness Hale's appointment the House of Lords:…”

Comparación de mujeres y hombres de experiencias en la judicatura australiana*

“…Sin embargo, los números absolutos suelen ser muy pequeños. Este modelo es típico de los países del comon law (Hurwitz y Lanier, 2008: 63;Kenney, 2004Kenney, , 2013Laster y Douglas, 1995; National Association of Woman Judges, 2013; Office of the Commisioner for Federal Judicial Affairs Canada, 2013; Rackley, 2006Rackley, , 2007Rackley, , 2013Malleson, 2003b;Murray, 2003;Thornton, 2007). Como Clare McGlynn ha explicado, un incremento del 1,4% a 6% en la Corte Suprema Inglesa significaría el nombramiento de siete mujeres en un lapso de 10 años (McGlynn, 2003).…”

“…Sin embargo, aunque las cantidades de mujeres estén en aumento, ellas aún constituyen sólo una pequeña proporción de la judicatura (Bustamante, 1991b;Gastron, 1991;Junqueira, 2003;Kenney, 2004Kenney, , 2013Kohen, 2008Kohen, , 2013Laster y Douglas, 1995;Rackley, 2006Rackley, , 2007Rackley, , 2013.…”