Women Stronger Than Ever in the Judiciary, Panel Says
When Judge Julia Gibbons of the United States Court of Appeals for the Sixth Circuit ran for her first judgeship in Tennessee in 1981, she literally had to "hide the baby" during her summer campaign, since she was concerned that voters would think she should be a stay-at-home mom instead. As a panel of some of the highest-ranking female judges in the country gratefully noted at a Student Legal Forum (SLF) event Sept. 25, women in the judiciary have made large gains since then-the increasing number of female judicial appointments has drawn even to the percentage of women in the legal profession overall, according to SLF president Charles Newman.
Gibbons was joined by Judge Diana Motz of the Fourth Circuit Court of Appeals and Justice Elizabeth Lacey of the Virginia Supreme Court, in a panel moderated by Dahlia Litwick, Supreme Court editor for Slate magazine.
Gibbons said the issue of women in the judiciary "is something I used to think about a lot … but it's something I haven't been used to thinking about lately." She told the story of the first female judge on a United States Court of Appeals (the Sixth Circuit), Florence Allen, who often heated her lunch on a hotplate while her male colleagues dined together at a restaurant. She bought a marble-top table so the hotplate wouldn't burn the table, and it currently resides in the office of the most senior female judge, Cornelia Kennedy. Now six of the 22 judges on the Sixth Circuit Court of Appeals are female.
Motz painted a different picture of the Fourth Circuit Court of Appeal's history-there were no female judges on the Court until 1992, and she was the second female appointee in 1994. She said less than 20 percent of Article III courts are presided over by women.
Litwick, who has been covering the Supreme Court for almost six years, opened the session with a story she said she often tells about Justice Ruth Bader Ginsburg. When the Supreme Court swears in the new bar at the beginning of oral arguments, other judges don't pay attention, but Ginsburg beams at the lawyers-"she smiles like a Jewish grandmother"-and Litwick said she always ends the story by noting "I think it's because she's a woman." Litwick centered her first question on whether female judging is different: "Are they simply male judges with accessories?" she joked-or are they profoundly different?
Motz disputed that you can decipher whether a decision is written by a man or a woman. She noted that Chief Justice Rehnquist, when trying to get a vote for his side, will let justices include what they want in the opinion, even though it may effect how the text hangs together. "Women are more likely to adopt that approach," she said, and listen to others. "I've always regarded it as a collaborative effort and you're supposed to be working together." She said having women judges is crucial in the same way that having African-American judges is important, pointing to the last term's decision in the cross-burning case. "The argument was different from [the point where Justice Thomas spoke out against cross burning], and I daresay that conference was different because Justice Thomas was there."
Gibbons agreed that gender doesn't always come into the equation when making decisions. "What we do as lawyers and judges, is we detach," she said, "and that takes a lot of gender out of the decision-making process." She said she always cared about the people she sentenced, adding that in her experience, female judges are more likely to agonize over which clerk to hire.
Lacey said that often age differences are another effect on decisions or conference dynamics. Having a diverse judgeship allows every kind of life experience to be brought to the table when deciding a case. "I don't want to discount the importance of our life experiences in that process," she said.
Litwick asked the panel whether "bean-counting" of female judgeships was fruitful or even necessary.
"We have to hope to get to the point that the number of women on the bench reflects the number of women in the legal profession," Gibbons said. In Tennessee, many have been talking about how women do better in judicial races than men-particularly in Memphis.
Lacey said it was important for females to be on the bench to provide a public perception that women are present in the legal system. Unfortunately, women have been moving up the system, but not many have filled in the lower posts that were left behind, she said.
Motz said she would prefer that people be picked on merit-but they obviously aren't anyway. "You know they don't give LSATs to be judges-they don't give JSATs," she joked. It would be hard, considering how few women went to law school just 25 years ago, to fill 50 percent of judgeships with women, but she predicted in 30 years that 50 percent of federal judges would be female.
The panelists discussed the surprising lack of obstacles on their rise to the top. "In Texas, whatever you could do, you could do," Lacey said. She graduated in 1969, a time of huge growth in the industry-the Environmental Protection Agency was just getting started and they needed lawyers. When she moved to Virginia in 1982, she again found herself in lucky circumstances: "There were not that many women who were lawyers, who had practiced for even 10 years.
"The demands on lawyers today are multiples of what they were when we were practicing law," she said, noting that public service may be a way to lead a more balanced life. She did add that though she and her husband were both lawyers, somehow she was the one who picked up the kids because "he had a real job."
Gibbons said women today will face problems that they never had to face. "I was entering a workforce where people were just beginning to hire women," and becoming a judge "just fell into my lap." She noted that being in a judicial office gives you more control than private practice would.
Motz agreed that her generation had the benefits of good timing in graduating from law school, but "I don't know very many women who are managing partners in law firms today." It has been harder for women to make their mark in law firms and law firm politics, she said. "And you can't have it all-at least you can't have it all at the same time."
Although she had no trouble finding a job, she faced some curious onlookers at points in her career. During her first appellate argument, "there was a lot of silence because there was waiting to see if the dog would talk."
In response to a question about student complacency about women's issues, Lacey noted that law students don't really begin to face possible discrimination until life issues come up. She said that although a former clerk had negotiated to continue working after maternity leave, she found she didn't have the same clients. "What you see doesn't expose you to what you're going to see," she said.
Motz agreed that current law students are complacent, but said she was too, hence her decision to talk about the issue at the panel. Though some may think the feminists of the 1960s and 1970s look funny or were too rigid, "they have made the world better for all the rest of us," she said. As a student, Motz missed out on female role models-with no women lawyers around in the law firm she spent her summers at, she didn't know what to wear.
If women in the audience were looking to make changes in broader society, Gibbons advised them not to turn toward the judiciary: "You do give up the opportunity to be a leader on political and social issues," she said.
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