The number of women in the United States judiciary has increased as more women have entered law school.
Slowly, courts came to accept women in the role of legal practitioner. In 1878, Clara Shortridge Foltz became the first woman to be admitted to practice law in the State of California. To do so, she had to lobby the state legislature to remove the gender restriction in the law.
Nonetheless, after her legislative success, she was still denied admission to the state’s Hastings College of law on the grounds that women would “distract the attention of the male students.” Ms. Foltz only gained admission to the state school after arguing her case to the California Supreme Court, which garnered her what was then considered high praise from one of the seated justices: “You are not only a good mother; you are a good lawyer.” In Washington D.C., Belva Lockwood lobbied Congress on three separate occasions to change the Supreme Court admissions rules to allow a woman to argue before the court. Her efforts succeeded, and in 1879 she became the first female lawyer to argue before the highest court in the country.
Even as women began to break their way into the practice of law, the fight to attain judgeships was still gearing up. The first women to ascend to these positions were often appointed to part-time positions as ‘token’ representatives of their sex, rewarded for their enterprising fortitude. For example, in 1884, the District of Columbia trial court appointed Marilla Ricker to the position of United States Commissioner. In 1886, the first woman to graduate from Pennsylvania Law School was appointed master in chancery for the city of Philadelphia. By 1907, Evanston, Illinois elected a woman, Catherine Waugh McCulloch to serve as a justice of the peace.
Another pioneering woman to take the role of a judge was Georgia Bullock in 1914. The court over which she presided, however, did not resemble those of her “fellow” judges. Judge Bullock was the “woman judge” of Los Angeles, in charge of a court segregated by sex where “she would serve as a model of Victorian ideals of womanhood for female misdemeanants.” The purpose of the L.A. women’s court ran parallel to the culture attitudes of the time; “the purity of women and in their vulnerability to the sexual demands of the "stronger" sex provided acceptable reasons for setting aside public spaces where acculturated women could provide protection and guidance to weak and resourceless women.” Judge Bullock considered her appointment important, not because of concerns of equality, but rather because she felt women would be better served by a woman judge who could tell the “good girls” from the bad and help them reform their ways.
In 1920, the Nineteenth Amendment was ratified, granting women the right to vote and ushering a new era of women’s rights. During this time, women began assuming judgeships, through both appointment and election. However, many of these women were the same handful who had broken ground in the end of the 19th Century. For example, in 1925, the first female lawyer in California, Clara Shortridge Foltz, was considered for a federal judgeship at the age of 76. Florence Allen became both the first woman to be elected to the positions of general jurisdiction court in 1920 and the first female state appellate judge through her election to the Ohio Supreme Court in 1922. She would later become the first female federal appellate judge, appointed to the 6th Circuit in 1933. The Los Angeles Women’s Judge Georgia Bullock was finally appointed to an ‘official’ judgeship in 1931. The first female judge to serve on a federal district court, Burnita Shelton Matthews, was not appointed until 1949 (to the United States District Court for the District of Columbia).
Beyond the courts of general jurisdiction, the specialized state courts also saw a rise in female judgeships. Many considered specialized courts more appropriate to the tasks of female judges; in these positions their positive womanly characteristics could be used to resolve issues such as juvenile crimes and domestic relations. Also, the “token” aspect of female judges was seen in the temporary appointment of women to positions of prominence, such as the three female judges temporarily elevated to the Texas Supreme Court in 1925 after three male judges recused themselves in a matter involving a fraternal society to which they belonged. While these enterprising women achieved judgeships in the 1920’s and 1930’s, the tokenistic and decidedly sexist nature of their appointments would not change for another fifty years.
For example, when Julia Cooper Mack was appointed to the D.C. Court of Appeals in 1975, she became the first woman of color, and only the eighth woman total, to be appointed to a court of last resort. By 1993, 60 women had served on the highest court in forty states, the District, and the federal courts. Today, women comprise 26.3% of the judgeships on state courts of last resort, 19.2% of federal district court judgeships, 20.1% of federal appellate judgeships, and 11.1% of the U.S. Supreme Court. The percentage of women in working as judges has tended to correlate with the percentage of women in law school a decade earlier. As the American Bar Association statistics show a 15% increase in the percentage of women attending law school, one might expect a fairly significant rise in female judgeships in the coming decade. However, there remain barriers outside of law school graduation rates that may complicate this seemingly direct causal link.
In the 1980s and 1990s, women began to experience an increase in their access the courts, as employees, judges, and court-users. This increase in access, along with a renewed interest in uncovering underlying discrimination, led many courts to consider the experience that women were having in the traditionally male-dominated court system. In the early 1980’s the National Organization for Women Legal Defense and Education Fund and the National Association of Women Judges banded together to push the state and federal courts to review a perceived bias against women that they believed existed in the courts. From 1982 to 1984, the New Jersey Supreme Court created and ran the nation’s first official Task Force on Women in the Courts to “investigate the extent to which gender bias exists in the New Jersey judicial branch, and to develop an education program to eliminate any such bias.” The task force found “significant gender bias,” prompting the New Jersey Chief Justice to order the task force to continue its work indefinitely. The New Jersey report garnered significant public attention and prompted other states to consider similar studies in their own judicial branches.
At a 1988 joint meeting of the Conference of Chief Justices and the Conference of State Court Administrators the participants formulated resolutions directing each chief justice to create a task force in his or her jurisdiction to study “gender bias and minority concerns.” This effort resulted in a comprehensive overview of issues impacting women in the various state judiciaries. Starting in 1992 with the U.S. Court of Appeals for the Ninth Circuit, the federal judiciary followed suit and sought to investigate any gender bias that might exist in the courts and seek ways to remedy the problems. The progress made by these courts was almost terminated in 1995, when the new Republican majority that swept into Congress under the Contract with America sought to cut off funding that had been provided to run these task forces on the federal level. The new majority “believed that bias task forces by the federal judiciary were both unnecessary and undesirable.” However, the appropriation remained intact and tasks forces, such as Chief Judge Sloviter’s Third Circuit Task Force, could continue to pursue their charters.
Each state and federal circuit task force learned from the successes and mistakes of its peers; some focused more on finding a systemic bias within the system, while others focused on possible solutions. Overall, there were several general critiques of the existing court setting, both in the perspective of women judges as well as women lawyers and court-users. Though there are several interesting findings made by the task forces, this article focuses on three particular: (1) the lack of politicking and networking available to women judges and women seeking to become judges; (2) inappropriate interactions that take place in courtrooms; and (3) the difficult act of balancing family life with the demands of a legal career.
In addition to other task forces, the Ninth Circuit’s report found that many women believe that a major hindrance to attaining a judicial position is the lack of women “power players” in the connected “old boys clubs” that often influence judicial appointments.
A recent panel discussion held at Columbia Law School which included Justice Ruth Bader Ginsburg and other women judges, elicited this response from a former Bush (41) administration employee that echoes the task forces findings:
In a way, this remains a chicken and egg question; until there are a significant number of women in high positions in government and commerce, the connections needed to attain government appointments and judgeships remains in the hands of the entrenched male establishment. The recommendation put forward to remedy the problem is most succinctly put forward by Justice Ginsburg:
In short, the political system will change, and as long as there remain competent women judge applicants, competent women judges will follow. An additional suggestion includes focusing on ‘manifest offices’ or jobs from which judges have traditionally been appointed; essentially, to work within the system currently relied on in the appointment process.
Examples abound of judges and male opposing counsel calling female lawyers by ‘familiar’ phrases, such as “honey” and “dear” or even disciplining a female attorney with the statement “I’ll tell you what, little girl, you lose.” See Schafran, Gender Bias in the Courts, at 263. On the most offensive and outlandish end of this treatment, a shocking number of women reported unwelcome and inappropriate sexual advances and sexually derogatory statements.
However, in addition to these obvious and over the top examples of gender bias and insensitivity, the task forces found a subtler form of discrimination. One way this would manifest itself would be they way judges treat female litigants. For example, the court found that both women and neutral third-party observers discovered that male judges would pay more attention to male attorneys and had less patience for female attorneys—while neither the male attorneys nor the male judges were aware this behavior had been occurring.
The same obliviousness from male judges towards the treatment of their female colleagues exists when it comes to disparaging remarks toward the women judges. “Less than 1% of male judges report hearing disparaging remarks from colleagues about the competence of female judges and less than 2% report hearing disparaging remarks about the competence of minority judges; Among female judges, 7% report hearing disparaging remarks about female judges, and 11% report similar remarks about minority judges.” See Carrol Seron, Ph.D. et al., A Report Of The Perceptions And Experiences Of Lawyers, Judges, And Court Employees Concerning Gender, Racial And Ethnic Fairness In The Federal Courts Of The Second Circuit Of The United States, 1997 Ann. Surv. Am. L. 419, 457 (1997).
Overall, in several task force reports, women judges have reported that they receive less respect than male judges from lawyers. These reports are backed up other studies that have found women judges receiving consistently lower ratings than their male counterparts. The Ninth Circuit study found that more than half of female attorneys submitted that “they had heard colleagues question female judges’ competency to serve as judges.” These task forces have found that traditional attitudes, that may not be directly visible as gender bias in individual cases, when viewed as a whole make a compelling picture of underlying discrimination directed towards women.
Finally, one of the biggest issues that came up in the surveys facing women judges, women lawyers, and women professionals in all capacities, is the issue of managing both a family and a career. Justice Sandra Day O'Connor has observed that “women professionals still have primary responsibility for the children and the housekeeping, spending roughly twice as much time on these cares as do their professional husbands.” This uneven split in responsibility often will restrict a woman, not only from spending time at work, but also keep her from the traditional social and political networking required for advancement in the field. The “traditional” response to these problems has been to “give” women a choice of (1) delaying or forgoing family life to focus on a career or (2) place women in a ‘track’ where they will not achieve as much, but will have the opportunity to have a family. Many feminist scholars and women judges reject this view as outdated and inherently unfair to women. The answer, they insist, must require both men and the employers such as courts to share in burden of childrearing.