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Judicial diversity, the woman judge and fairy tale endings

  • Erika Rackley (a1)
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.

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37. REAL Women of Canada, above n 30.

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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).

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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.

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60. Lord Falconer, above n 49.

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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 http://www.judiciary.gov.uk/keyfacts/statistics/women.htm.

71. ‘High Court gets first black judge’ BBC News Website (2 September 2004), available at http://news.bbc.co.uk/1/hi/uk/3621648.stm.

72. Figures taken from the Directorate of Judicial Offices website as at 1 October 2006, available at http://www.judiciary.gov.uk/keyfacts/statistics/ethnic.htm. 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 http://www.suttontrust.com/reports/Comparison_educational_backgrounds.pdf; 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 http://www.dca.gov.uk/publications/reports_reviews/disequ_progressrep.pdf; 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 http://www.courtsni.gov.uk/NR/rdonlyres/8A7BEDEB-73C0-43B7-B0D1-88B88E25A248/0/p_pm_lcspeech.doc; Sir John Baker Response to the DCA Consultation Paper Constitutional Reform: A New Way of Appointing Judges (November 2003), available at http://www.dca.gov.uk/consult/jacommission/responses/ja008.pdf; 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 http://www.unrisd.org/80256B3C005BCCF9/(httpPublications)/56FE32D5C0F6DCE9C125710F0045D89F?OpenDocument; 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 http://www.worldbookday.com/documents/Happy%20Endings%20News%20Release.doc.

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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