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Judicial diversity, the woman judge and fairy tale endings

  • Erika Rackley (a1)

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.

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10. ‘We’ and ‘our’ may capture a number of communities here in line with my understanding of storytelling, especially of those stories described as ‘fairy tales’, as a predominantly female activity which crosses and subverts – cultural, historical, geographical, political, social – boundaries ( Carter AIntroduction’ in Carter A (ed) Angela Carter’s Book of Fairy Tales (London: Virago Press, 2005) pp xixxiv and, generally, Warner, above n 9). However, although I seek throughout my paper, in both its content and style, to invoke this relationship, I recognise that in so doing I risk not only over- and under-inclusiveness but also giving the ‘constitutive we’ the appearance of a coherence it does not posses ( at 2077–2085). As the tales of Cinderella, Snow White and others reveal ‘sisters… we might be, but that doesn’t mean we’ve got much in common’ (Carter, ibid, pp xvi and 167–214).

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32. See below nn 78 and 76 respectively and surrounding text.

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36. See, eg, J Tibbetts ‘Alberta judge’s remarks shake legal community: suggests Supreme Court Justice to blame for male suicide rate The Gazette 27 February 27 1999 (on Claire L’Heureux-Dubé); Q Letts ‘She smiled disdainfully at some other poor wretch’ Daily Mail 19 November 2003 and G Levy ‘Architect of a marriage wrecking measure’ Daily Mail 26 April 1996 (on Brenda Hale); and J Lisners ‘Cleveland judge sex scandal’ News of the World 17 July 1988, available at (on Elizabeth Butler-Sloss).

37. REAL Women of Canada, above n 30.

38. A Ramsey ‘Swimming upstream and against spite’ Sydney Morning Herald 2 February 2005.

39. Hunter, above n 7, at 145; See also L Willis ‘Fingleton to appeal jail sentence’ The World Today Report 5 June 2003 and P Wilmouth ‘A life at law turned inside out’ The Age 25 September 2005.

40. On the fantastic narratives of fairy tales – described by Angela Carter as ‘a story where one king goes to another king to borrow a cup of sugar’ (M Warner ‘Afterword’ in Carter, above n 10, p 447 at p 449) – see further Warner, above n 9; M Tatar ‘Introduction’ in M Tatar (ed) The Annotated Classic Fairy Tales (New York: WW Norton and Company, 2003).

41. H Kennedy ‘Foreword’ in McGlynn, above n 1, p vi. See, eg, Bertha Wilson’s deliberate and ‘emphatic’ distancing of herself from feminist ‘rants’ (p 223) in her official biography (Anderson, above n 33 p 136) and criticism of this by Clare McGlynn in ‘Ellen Anderson, Judging Bertha Wilson – Law as Large as Life’ (2003) 11 Fem LS 307 (book review).

42. Warner, above n 9, p xiii

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47. Warner, above n 9, p xii.

48. Lord Taylor The Judiciary in the Nineties, Richard Dimbleby Lecture (1992) at 9.

49. Lord Falconer Increasing Judicial Diversity: The Next Steps (2 November 2005), available at

50. Griffith JAG The Politics of the Judiciary (London: Fontana Press, 5th edn, 1997) p 7.

51. See, generally, Schultz U and Shaw G (eds) Women in the World’s Legal Professions (Oxford: Hart Publishing, 2003) p 401 ; ; (UK); Thornton, above n 14 (Australia); (Canada); and (USA).

52. Griffith, above n 50, p 22.

53. Judicial Appointments in England and Wales – The Appointment of Lawyers to the Professional Judiciary – Equality of Opportunity and Promoting Diversity (London: Lord Chancellor’s Department, October 2001).

54. Lord Irvine ‘Setting new bench marks The Guardian 4 March 1992.

55. Lord Irvine, Speech to the 1998 Women Lawyer Conference, 25 April 1998.

56. Sir Peach Leonard An Independent Scrutiny of the Appointment Processes of Judges and Queen’s Counsel in England and Wales (London: Lord Chancellor’s Department, 1999);

57. Replaced by Judicial Appointments and Conduct Ombudsman in April 2006.

58. See, eg, Lord Irvine, Speech to the Association of Women Barristers, 11 February 1998; Speech to the Ethnic Minority Lawyers’ Conference, March 1999; Speech to the IBA World Women Lawyers Conference, 1 March 2001; Speech to the Association of Women Solicitors, 23 March 2001.

59. Lord Irvine, Evidence to the Select Committee on the Lord Chancellor’s Department (2 April 2003) para 72; Leader ‘Good judgment – Lord Irvine is right to think again’ The Guardian 4 April 2003.

60. Lord Falconer, above n 49.

61. Department of Constitutional Affairs Constitutional Reform: A New Way of Appointing Judges (CP 10/03, July 2003) and Summary of Responses to the Consultation Paper (January 2004).

62. Charlie Falconer ‘Opening up our institutions for the future’, Speech to the Labour Party Conference 29 September 2004.

63. Department of Constitutional Affairs Increasing Diversity in the Judiciary (CP 25/04, October 2004) and Responses to DCA Consultation Paper (March 2005).

64. Lord Falconer, above n 49.

66. C Campbell, Evidence to the Constitutional Affairs Committee (11 November 2003).

67. Baroness Prashar in Department of Constitutional Affairs Press Notice ‘Constitutional reforms come into force’ 23 January 2006. On the new Judicial Appointment Commission see further Lord Falconer ‘Implementation of the Constitutional Reform Act 2005’ Written Ministerial Statement (January 2006) and the official website at Unlike the Judicial Appointments Commission in Northern Ireland, which has a statutory duty to ensure, so far as is reasonably practicable to do so, that the judiciary reflects the community of Northern Ireland (Justice (Northern Ireland) Act 2004, s 3), this Commission (like the Judicial Appointments Board for Scotland’s remit to consider ways of recruiting a judiciary which is as representative as possible ( need only have regard to the need to encourage judicial diversity (Constitutional Reform Act 2005, s 64(1)).

68. Department of Constitutional Affairs Press Notice ‘Continued increase in minority ethnic and female judicial appointments’ 31 January 2006.

69. Hale B Making a difference? Why we need a more diverse judiciary’ (2005) 56(3) NILQ 281.

70. Figures taken from the Directorate of Judicial Offices website as at 1 October 2006, available at

71. ‘High Court gets first black judge’ BBC News Website (2 September 2004), available at

72. Figures taken from the Directorate of Judicial Offices website as at 1 October 2006, available at See, further, Abbas T Diversity in the Senior Judiciary – A Literature Review of Research on Ethnic Inequalities (London: Commission for Judicial Appointments, 2005). Although there are no official figures available in relation to other indicators of diversity, for example age, sexuality, educational background, disability or religion, on the educational background of the senior judiciary see the Sutton Trust Briefing Note The Educational Backgrounds of the UK’s Top Solicitors, Barristers and Judges (2005), available at; on disability within the judiciary, see the Report on Progress against the DCA’s Action Plan on Disability Equality and Judicial Appointment (December 2005), available at; and on the appointment of the youngest-ever magistrate, Anand Limbachia, see J Robins ‘Are teenagers really mature enough to serve as magistrates’The Times 8 November 2005.

73. For a comparison with progress made worldwide see Thomas, above n 51.

74. Hale, above, n 69, at 282. See, eg, Lord Falconer Opening of the Legal Year in Northern Ireland (5 September 2005), available at; Sir John Baker Response to the DCA Consultation Paper Constitutional Reform: A New Way of Appointing Judges (November 2003), available at; Keith Vaz MP Hansard HC Deb, vol 334, col 137, 29 June 1999.

75. Hale, above n 69, at 282. On the perception that judges reflect a certain profile: ‘male, Silk, an all round decent chap’, see further Commission for Judicial Appointments Annual Report (London: Commission for Judicial Appointments, 2005), particularly, paras 3.21–3.25 and the subsequent exchange between Lord Falconer and Sir Colin Campbell published alongside it.

76. Blank v Sullivan and Cromwell 418 F Supp 1, 4 (SDNY 1975) discussed in L’Heureux-Dubé, above n 29.

77. RDS v R [1995] NSJ No 184 (SC); R v RDS (1995) 145 NSR (2d) 284 (CA); R v S (RD) [1997] 3 SCR 484.

78. Prosecutor v Furundzija Case No IT-95-17/1A.

79. Increasing Diversity in the Judiciary, above n 63, p 57.

80. Lord Falconer ‘Foreword’ in Increasing Diversity in the Judiciary, ibid, p 8.

81. These include (at least for the time being) legal knowledge and experience, intellectual and analytical ability, sound judgment, decisiveness, communication and listening skills, authority and case management skills, integrity and independence, fairness and impartiality, understanding of people and society, maturity and sound temperament, courtesy, commitment, conscientiousness and diligence (ibid, p 57). The Judicial Appointments Commission is currently reconsidering these requirements and will publish a new set of ‘considerably more succinct’ requirements in due course (J Rosenberg ‘So how can we judge the judges?’ Daily Telegraph 20 July 2006).

82. Lord Falconer, above n 80.

83. B Hale Equality in the Judiciary: A Tale of Two Continents Tenth Pilgrim Fathers’ Lecture (2003). See also the Commission for Judicial Appointments Annual Report (London: Commission for Judicial Appointments, 2005) pp 22–29 and Kennedy, above n 27, pp 60–62.

84. Malleson K Rethinking the merit principle in judicial selection’ (2006) 33(10) J Law and Soc 126 and at 16.

85. Weeks J Rediscovering values’ in Squires J (ed) Principled Positions: Postmodernism and the Rediscovery of Value (London: Lawrence and Wishart, 1993) p 189 at p 206.

86. Cooper D Challenging Diversity: Rethinking Equality and the Value of Difference (Cambridge: Cambridge University Press, 2004) p 7.

87. Ibid, p 35.

88. Ibid, pp 193–194.

89. Minow M Making all the difference: three lessons in equality, neutrality, and tolerance’ (19891990) 39 De Paul L Rev 1 at 3.

90. L’Heureux-Dubé, above n 29, at 28.

91. Rackley E Representations of the (woman) judge: Hercules, the Little Mermaid and the vain and naked Emperor’ (2002) 22 LS 602 at 618.

92. Berns, above n 13, p 33.

93. See above n 77.

94. Devlin RWe can’t go on together with suspicious minds: judicial bias and racialized perspective in R v Rds ’ (1995) 18 Dalhousie LJ 408 at 443, n 178. The lower courts’ decisions were subsequently overturned by a majority of the Canadian Supreme Court in R v S (RD)[1997] 3 SCR 484; see further collection of case comments in (1998) 10 Canadian Journal of Women and Law 159–212.

95. Judge O’Sullivan quoted in Thornton, above n 14, p 208.

96. Minow, above n 89, at 7.

97. Ibid, at 6.

98. Blank v Sullivan and Cromwell, above n 76, p 4.

99. Cain P Good and bad bias: a comment on feminist theory and judging’ (1988) 61 S Cal L Rev 1945 at 1946.

100. Ibid.

101. Antony LM Quine as a feminist: the radical import of naturalised epistemology’ in Antony LM and Witt C (eds) A Mind of One’s Own: Feminist Essays on Reason and Objectivity (Boulder: Westview Press, 1993) p 185 at p 215.

102. Cain, above n 99, at 1954.

103. Prosecutor v Akayesu Case No ICTR-96-4-T (2 September 1998); ICTR-96-4-A (1 June 2001).

104. ICTR-96-4-T, para 73.1

105. ICTR-96-4-A, Annex B, Third Ground of Appeal Biased and Partisan Tribunal at (i)

106. Askin K Sexual violence in decisions and indictments of the Yugoslav and Rwandan tribunals: current status’ (1999) Am J Int Law 97 at 100. See also Statement by Justice Louse Arbour, Press Release (ICTY Doc. CC/PIU/342-E, 4 September 1998). On the Akayesu legacy in the ICTR, ICTY and the International Criminal Court, see further ; B Nowrojee ‘ “Your justice is too slow”: will the ICTR fail Rwanda’s rape victims?’, United Nations Research Institute for Social Development Occasional Paper Gender Policy 10 (2005), available at; and N Pillay ‘The advancement of women’s rights’ Occasional Paper No 16 (Centre for Human Rights, University of Pretoria, September 2002).

107. Askin ‘Gender crimes jurisprudence in the ICTR’, ibid, at 1009. Interestingly, the original indictment against Akayesu did not originally include charges of sexual violence in this case; the virtually all-male group of investigators did not find enough evidence for such crimes. However, after the trial had begun sufficient evidence began to emerge as, encouraged by Pillay (the only female judge present), the witnesses began to talk of rape and other acts of sexual violence. The trial was subsequently adjourned. Following more detailed investigations, the indictment against Akayesu was amended by Chief Prosecutor, Louise Arbour, and when the trial resumed, a year later, extensive witness testimonies detailing the use of rape and sexual violence were introduced. On the role of women’s pressure groups in this case see Askin ‘Sexual violence in decisions and indictments of the Yugoslav and Rwandan tribunals: current status’, ibid, at 106; Copelon RGender crimes as war crimes: integrating crimes against women into international criminal law’ (2000) 46 McGill LJ 217 ; at 10–12; T Rosenberg ‘New punishment for an ancient crime’New York Times 5 April 1998.

108. C L’Heureux-Dubé ‘Making a difference: the pursuit of a compassionate justice’ Notes for an Address to the International Bar Association, Amsterdam, Netherlands, IBA Joint Session on ‘Women on the Bench’, 20 September 2000, on file with author.

109. Nedelsky J Embodied diversity and the challenges to law’ (1997) 42 McGill LJ 91 at 107, citing Hannah Arendt, in

110. Chappell, above n 107, at 12.

111. Wilson B Will women judges really make a difference?’ (1990) 28 Os HLJ 507 at 515. See, eg, the judgments of Brenda Hale in Parkinson v St James and Seacroft University Hospital NHS Trust[2001] QB 266, discussed in or Bertha Wilson in R v Morgentaler [1988] 1 SCR 30, discussed in

112. The extent to which women judges speak in a ‘different voice’– although perhaps intuitively attractive – remains hotly disputed among both legal academics and professionals; see, eg, Malleson ‘Justifying gender equality on the bench: why difference won’t do’, above n 84; Day O’Connor, above n 43; Wilson, above n 111; Kay HH and Sparrow GWorkshop on judging: does gender make a difference?’ (2001) 16 Wis Women’s LJ 1 . On the criticism of essentialism, see from the varied and wide-ranging literature, at 62–63; at 366–368 and at 20–21.

113. Berns, above n 13, p 8.

114. S Parnell and C Mathewson ‘Beattie sticks with Tatt’s despite no-women vote’ Courier Mail 27 March 2003.

115. Readers Live Happily Ever After on World Book Day (2 March 2006), available at

116. Ibid.

117. Ibid.

118. Mitchell M Gone with the Wind (London: Pan Books Ltd, 1974)[first published 1936] p 1011.

119. Equal Opportunities Commission Sex and Power: Who Runs Britain? (Manchester: Equal Opportunities Commission, 2006) p 1 . Again, women from an ethnic minority background fare even worse. For example, only two of the 127 female MPs in the UK Parliament are ethnic minority women (there are no ethnic minority women sitting in the Scottish Parliament or the National Assembly for Wales) and a mere 3.3% of FTSE 100 company directors are from an ethnic minority group (ibid, p 3).

120. Ibid, p 2.

121. F Gibb ‘Is there a bar to having it all?’ The Times 22 February 2005. On the difficulties experienced by men who seek to balance their work and family life, see further J Carvel ‘Third of men drink to drown out job stress’ The Guardian 8 June 2006 and R Collier ‘Work–life balance: ladies only?’ [2005] The Lawyer 33.

122. Equal Opportunities Commission, above n 119, p 3.

123. Mendelson MForever acting alone: the absence of female collaboration in Grimms’ Fairy Tales’ (1997) 28(3) Children’s Literature in Education 111.

124. Legrand P Comparative legal studies and commitment to theory’ (1995) 58(2) Mlr 262 at 264.

125. Mills v Mills (unreported) SA 44 of 1996, 23 July 1996, discussed by Graycar R The gender of judgments: some reflections on “bias”.’ (1998) 32 UBCL Rev 1 at 6.

126. Quoted in Garza H Barred from the Bar – A History of Women in the Legal Profession (New York: Franklin Watt, 1996) p 12 , referred to in McGlynn, above n 1, p 7.

* I would like to thank Joanne Conaghan, Clare McGlynn and Neil Cobb for their support, intellectual generosity and conversation as well as the anonymous referees for their helpful comments on an earlier draft of this paper. The usual caveats apply.

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