More on choosing judges

Women are represented in the law as judges, barristers, solicitors, attorneys-general, law makers and court administrators. They identify an issue quickly, focus on it and persuade rather than dictate. Mostly, women who work in the law are goal oriented. They readily identify their litigation goal, their judgment goal.Women provide perspective. They search out the resolutions.Women have finely honed organisational skills (hence they make excellent juniors and instructors in litigation, sometimes of itself a distinct disadvantage).

Women are adaptive and flexible. They have identified the open and closed areas of legal practice. Thus, women have remained in the traditional fields of family law, conveyancing and criminal prosecution but expanded into relatively new areas, taxation and revenue law, planning and environmental law, administrative law, human rights law and indigenous land rights law. In so doing they have avoided the more adversarial, combative zones of commercial law and common law.

Women bring to the law a strong sense of method. This is borne out in the judgment writing of women in the superior courts…

(Extract from speech by Marilyn Warren, current Chief Justice of the Supreme Court of Victoria, on 15 May 2003 to Victorian Women Lawyers)

I’d like to explore my own ambivalence about the words of Chief Justice Warren above. Are women different to men? Do they bring different qualities to a role? Before I had male cousins, I would have said that women and men were the same, but I no longer believe this. In general, women and men do have different approaches to matters. That is not to say that either approach is better than the other. It is also not to say that all women are the same. Most people will have a mixture of “masculine” and “feminine” traits. For example, my husband will kill me for writing this, but I am better at reverse parking and spatial tasks than he is (typically thought to be a more masculine trait). Further I am far more adversarial than my husband. He does not like confrontation. I don’t like it either, but if I have to confront someone, I will. And there are women who are far more aggressive than any man, and far less caring. Think about someone like Maggie Thatcher – hardly a stereotypically “feminine” woman.

I guess I’m wary of gross generalisations, and the idea that women are somehow better than men. We aren’t better than men, sometimes we’re just different. But I do think that many women have a very valuable perspective to add to the judicial bench. With this in mind, I am considering the appointment of Justice Kiefel to the High Court of Australia.

Will Justice Kiefel bring a different perspective to the Court? I really hope so. I don’t care if it’s as a result of her gender or not. To me, the point for celebration is not that Her Honour is a woman, but that she shows some signs of having independent thought processes. The present High Court is so hidebound. I don’t know if this is some kind of pendulum effect – whether the Court is at pains to swing away from the perceived “activism” of the 80s and 90s. I think that this is mistaken. To try to keep the law static is as much activism as is attempting to change the law. It also has a political agenda behind it.

The whole point of being on the High Court is that the law is (within reason) what you say it is. You are not bound by precedent. A High Court should both explain what the law is and develop it if necessary. By contrast, recent judgments of the House of Lords in the last 10 years have been interesting and one gets the feeling that they actually have open minds. I find myself almost wishing that there was still an avenue of appeal to the Privy Council. {Zounds, can a republican like myself really be saying that? Shows how desperate times have become… Note for US readers: republican = anti-Queen-as-head-of-Australia in this context}

So, congratulations, Justice Kiefel. May you make a difference!


Filed under Australia, courts, feminism, high court, judges, law, law reform, Uncategorized

6 responses to “More on choosing judges

  1. B-)

    Republican/republican, Liberal/liberal (in the Australian context). One of many reasons that the importance of the proper use of capital letters really should be emphasised to prevent unfortunate misunderstandings……

  2. Horatio

    Look, there’s absolutely no double standard. If a male judge delivered a speech about how men use their qualities to resolve disputes and make decisions, I’m sure there’d be very very little outcry. Wouldn’t there?

    Seriously, the Marilyn Warren speech is a perfect example of the feminist (and other) elitists at the top of the legal ‘profession’. They are the first to bleat ‘discrimination’ (when their own careers aren’t on the up) and love to appoint each other to high paying posts.

    They are also the usual suspects when it comes to having bleeding hearts about aboriginies and refugees (while billing huge sums and presiding over a useless overpriced legal system).

  3. pete m

    haha nice post horatio – let it all out!!

    I have found little difference in my dealings with male and female judges. In fact I have found the male judges more moody and cranky than the female judges.

    There is always a danger with over-generalisation.

  4. w

    I think this is typical of a hypocrisy common amongst crusaders for gender equality. They first argue that men and women should achieve equally, and be proportional represented in all fields because they are equally talented. Anyone who points out that there are biological differences that (gasp) may extend to mental ability in certain fields is an irredeemable misogynist (ie Lawrence Summers).
    But then they come out with, or at least tolerate, statements like that one. That women deserve more success than they currently enjoy *because* they are different to men.

    I think that denying the existence of any difference between men and women requires a tremendous degree of self delusion and involves an inability to distinguish between what is true and what one would like to be true.
    Fundamentally, it is a failure of imagination in argument to feel it necessary to cling to that obviously false belief. Why is conceding the existence of difference so hard to do? There are lots of reasons, much better reasons, for treating people equally than saying we are all equal in all respects.
    BUT, if Warren J wants to have an argument that women are good in law because of their differences, then doesn’t that open a door that had best remain closed? ie, that the question of a gender’s representation in a given field (ie 50-50%) can properly be decided by recourse to someone’s idea of the ‘different’ skills of men and women.

    What rot.
    Even though if you draw bell curves for any given personality trait or aptitude, there will be some difference in mean and standard deviation between genders. But, it does not follow that you can make any prediction of difference between a given woman and a given man that is significantly better than tossing a coin.

  5. W, your final sentence is particularly pertinent. I think that you have hit the nail on the head. In a particular instance, you can’t predict how a given man and a given woman will behave.

    Like Pete, when I was a practitioner, I didn’t find any practical differences in male judges and female judges. It very much depends on the individual not the gender (there are some good judges, there are some bad ones).

    As I’ve said in a different post, I think I’m a meritocrat. I’d hate to be appointed to a position just because I was a woman. I’d like to be appointed because I was the best! 🙂

    Fortunately, Kiefel J seems to be a very good judge. Three cheers for her!

  6. In the 1980s I wrote clinically-oriented psychometric software (including flagging neurosis levels and assessing masc/fem personality traits, so I’ll make a comment:

    Cognitive things (like spatial work: women are good at close-range, men at “geographic range”) and stuff associated with the interhemispheric connections of the corpus callosum (recovery of language after stroke is MUCH better in women) DOES correlate fairly well with gender.

    Personality traits (associated with strategies) are different, and don’t correlate well with gender. Highly intelligent folk (like LE, I’m sure) generally score highly in both masc and fem.

    For example: My masc personality traits masculinity (mid 90s) was higher than my F (low 90s), higher than my then wife’s F (lower 90s), and her M (high 80s).

    So, I was into the nurturing bit (very happy to be a single dad – except when buying bras), but could never find keys or things in cupboards.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s