On the Issues Magazine Article “Judging Our Future” on Female Judges

In this month’s On the Issues magazine there is a quick article (here) about the presence/absence of women judges in the United States.  “Judging our Future: Supreme Women Move Up” gives some of the stats:

Since Elena Kagan took her seat on the Supreme Court on October 4, 2010, for the first time in this country’s history, three of our nine Supreme Court justices have been women. Justice Kagan is the fourth woman on the bench out of the 112 justices we have had so far.

So women have gone from zero percent representation during the Court’s first 191 years to 33 percent in the past 30 years.  * *  *

On the state level, the same study found that 26 percent of all state judgeships were held by women.

According to Equal Representation in Government and Democracy, as of July 12, 2009, 31 percent of the total number of justices on all of the states’ highest courts combined were women. In fact, in 21 states the numbers of men and women on the highest courts were about equal.

An amazing statistic is that 20 of our state supreme courts—38 percent—were headed by female chief justices in 2010. (There are 52 state supreme courts because Texas and Oklahoma have two supreme courts each, one for criminal appeals and one for civil cases.)

This is a nice, short piece grounded in baseline empirics.  The more complicated questions that academics such as Pat K. Chew and Robert E. Kelley [in Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases, 86 Wash U. L. Rev. 11178 (2009)], among others, are trying to answer are the “so what” questions.

What does it mean for equality, democracy, justice if x or y percent of all judges are female?  Is there something beyond “head counting” that a progressive feminist agenda could embrace without reinforcing gender essentialism?  Is it really so “old fashioned” to want to have a judiciary that includes men and women in proportion to their representation in the population?  Does the analysis stop at gender?  To my mind, these questions have yet to be adequately addressed in the scholarly literature on judges and judging.  What can feminist legal theory add to the mix?

-Bridget Crawford