Women, Legitimacy, and Institutions

By Jeydel, Alana | Judicature, March/April 2013 | Go to article overview

Women, Legitimacy, and Institutions


Jeydel, Alana, Judicature


Women, Legitimacy, and Institutions Gender and Justice: Why Women in the Judiciary Really Matter by Sally J. Kenney. Routledge, 2012. 310 pages. $35.95

In Gender and Justice, author Sally J. Kenney, takes the reader on a thorough empirical journey assessing why women in the judiciary matter. Kenney examines the cases of Great Britain, various jurisdictions in the United States, and courts in the European Union to see how women ascended to those benches, what, if any difference, their presence has made, and why the presence of women does matter.

Kenney begins with a detailed examination of the literature on the impact of women in various political institutions with particular emphasis on the research that seeks to discover if female judges adjudicate differently than male judges. The quick answer here is: they do not. So she asks, why do feminist scholars keep searching for difference as a justification for the presence of women on the bench. Couldn't there be another, perhaps more compelling, argument as to why women should be appointed to judicial positions? To this question Kenney answers with an unequivocal, "Yes." She urges us to think about the importance of women not because they behave differently than men but for two other related reasons. First, she argues that women experience their sex as a social process. And thus we must "move beyond sex as a variable to theorizing gender as a social process" (p 16). If scholars would do this, then their research on women in the judiciary would be more fruitful and their arguments regarding the presence of women on the bench more persuasive.

Second, she argues that having women on the bench matters simply because it brings legitimacy to the institution. For instance, she uses various courts in the EU as case studies for this assertion. These courts have very few women on them and arguably the inclusion of sex as a criterion for appointment flies in the face of judicial independence and the idea that appointments are solely based on merit. She quickly points out that a number of criteria are used for judicial appointments that have nothing to do with merit, country and political party being two key factors. Neither of these criteria are merit driven. Rather they are there to lend legitimacy to the EU courts. If a member country had no representation on the bench then the citizens and political institutions of its country might feel less inclined to follow EU court decisions, not because their country's judge would be likely to decide differently than other judges, but purely because they did not "feel" represented. Those criteria lend legitimacy to the EU courts. So, if country and political party can be used as criteria, then sex should be as well. Further, to ignore women as potential judicial appointees in this modern era is to exclude the talents and abilities of a large segment of the population, which makes little to no sense if merit is such a crucial component of the selection process. …

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