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Gertner and Lithwick: More Women Judges Needed

By Brian McNeill

dahlia lithwick and judge nancy gertner

Female judges bring invaluable life experiences to the bench and more women are needed in the judiciary, U.S. Judge Nancy Gertner and senior editor Dahlia Lithwick said at a Law School panel discussion titled “The Fairer Sex: A Conversation about Women in the Judiciary,” in October.

Gertner, who recently retired from full-time service with the U.S. District Court for the District of Massachusetts and is the author of In Defense of Women: Memoirs of an Unrepentant Advocate, said judges are asked to bring their experiences to the table when deciding cases, and that women can bring different experiences and perspectives.

“Context matters,” Gertner said. “It’s an illusion to believe that context doesn’t matter.” As an example she described a case she heard in which a woman accused her boss of making a vulgar unwanted sexual advance. While it might have sounded implausible to male judges hearing the claim, Gertner thought her life experiences as a woman informed her view otherwise.

“I can tell you that what’s plausible to me may be very different from what’s plausible to my male colleague,” she said. “The law, in fact, invites us to consider and make judgments about life experiences. You, of course, bring your life experiences to the table. I’m absolutely not saying I only believe women. It’s not a one-to-one correlation. But clearly you begin the analysis with your soul, with your person.”

Gertner dismissed the “bizarre and ridiculous” view that judges must ignore their life experiences when deciding the outcome of cases. She noted that when Supreme Court Justice Thurgood Marshall died, Justice Sandra Day O’Connor described how Marshall’s experiences were invaluable to the court.

“What O’Connor said was that [Marshall’s] presence in the Supreme Court deliberations made an enormous difference,” she said. “When you looked around the table, no other judge had ever lived in the segregated South. No other judge had ever represented people who were reviled. No other judge had gone through what he had gone through. And that context matters.”

Lithwick pointed out that women have comprised roughly 50 percent of the entering and exiting law school classes since the 1980s, but there is still an “unbelievable dearth” of women judges.

“Forty-nine of the 162 judges on the federal appeals courts right now are women,” she said. “There’s only one woman judge on the 8th Circuit. Only one on the 10th. The 3rd Circuit Court of Appeals is comprised of only 15 percent women. And only 30 percent of active trial judges in the federal district court are women. We’re not talking even close to 50 percent. And the question is, why?”

An even bigger question, Lithwick said, is does it actually even matter that the gender disparity on the bench is so wide? She noted that the first woman to serve on the Supreme Court of the United States, Sandra Day O’Connor, famously said that a wise old man and a wise old woman would, at the end of the day, reach the same conclusion. In Lithwick’s view, however, female judges can make a remarkable difference.

“I’ve been covering the Supreme Court for an era in which there were two women, then when there was one woman, and now, magically, there are three women,” she said. “And I’m here to tell you, it matters a lot. It’s unbelievable how different it is to cover a Court with three women on it.”

Lithwick cited a 2008 study that found that in sex discrimination cases before three-judge panels on the federal appeals court between 1995 and 2002, male judges were 10 percent more likely to rule against the plaintiff than women judges. However, if a female judge was sitting on the panel with the male judges, then the male judges overwhelmingly were likely to bring their opinion in line with that of the female judge.

“What does that suggest? Not that women’s brains are different. I think that it suggests that thinking about gender from a woman’s perspective is weirdly contagious,” Lithwick said. “And that you don’t have to be a woman to understand what it is to be a female plaintiff in a sex discrimination suit, but it really helps to have a woman explain it to you.”

In the 2009 Supreme Court case Safford Unified School District v. Redding, Lithwick said, the justices heard how school officials strip-searched a 13-year-old Arizona girl who they believed possessed ibuprofen in violation of school rules.

“When this case is argued at the Supreme Court, some of the judges not only were not sympathetic but actually made light of the search, likening it to ‘Ha-ha-ha, this is what happened to me in gym class,’” Lithwick said. “And this was one of the few moments I’ve seen Ruth Bader Ginsburg really get mad on the bench and say, ‘This is nothing like something that happens in gym class. This is not something to be taken lightly. This is not a trivial search—this is a young girl being searched by school authorities in an incredibly intrusive way without her parents’ consent.’”

As it turned out, Lithwick said, the Court’s decision was 8–1 in the young girl’s favor.

“We need women on the court not because there’s some magical number of women on a court, but I think women have stories to tell and perspectives to share,” she said. “We’re so blessed to have these voices and these stories.”

The event was sponsored by the Feminist Legal Forum, the American Constitution Society for Law and Policy, the Jewish Law Students Association, Student Legal Forum, and Women of Color.