Sally J. Kenney, Gender & Justice: Why Women in the Judiciary Really Matter. (New York: Routledge, 2013), ISBN: 978-0-415-88143-2 (hardcover), v + 310 pp. (incl. index), $109.48 (hardcover ); $31.75 (paperback) (Amazon pricing).
Justice must not only be done; it must be seen to be done.
Women make up 50% of law school graduates, yet few make it to the bench. Why? To ask a more provocative question: why does it matter? Despite assumptions to the contrary, women judges do not decide cases differently than men judges. So, if a woman’s presence on the bench doesn’t make a difference in case outcomes, why does it matter that women are missing?
Sally J. Kenney’s call-to-arms (written to an audience of her scholarly, feminist peers) analyzes women’s historical and current participation in U.S. federal and state courts, courts in the U.K., and in the European Court of Justice. Her exhaustive research reveals surprising patterns. First, women’s rise to the judiciary is not natural or inevitable despite the critical mass of women graduating from law school. There is no such thing as the “trickle-up” effect. Instead, a trifecta of phenomena must be present to result in a greater number of women on the bench: an explicit policy commitment to gender equality, influential “insiders” within a political organization or party, and outsiders (feminists) applying pressure. These phenomena were present in the U.S. when President Carter was in office (resulting in the appointment of forty women to the federal bench), but disappeared under the Reagan administration (leading to a reversal of women’s advancements as a group despite the appointment of Justice Sandra Day O’Connor to the U.S. Supreme Court in 1981). Until last year, there was only one woman in all of the seven states of the Eighth Circuit Court of Appeals that had ever sat on the bench. And, at the U.S. state level, despite initial efforts to include women, the state supreme courts of Idaho and Iowa have reverted back to all-male courts. Women were not appointed to serve on the European Court of Justice prior to 1999 or as a Law Lord in England until 2002. Today, women remain underrepresented in these court systems as well, despite the large numbers of women lawyers “in the pipeline." The second pattern Kenney’s research reveals is: women’s progress unleashes rage. Women judges of every era have experienced frequent backlash, through explicit and implicit discrimination during the judicial selection process and while serving on the bench.
Despite a dreary past and an unsatisfying present, women have a hopeful future in the judiciary, according to Kenney, if feminists let go of arguments that focus on women’s differences from men and instead refocus on a strategy that worked when integrating the jury system: reframe representation as a right and duty of citizenship that gives the institution legitimacy. An African-American juror does not have to prove he would vote differently from a white juror to justify his presence in the jury. A Wisconsin judge doesn’t have to argue that he decides cases differently from an Illinois judge to justify his presence on the Seventh Circuit Court of Appeals. Likewise, women do not need to grasp at difference arguments to validate equal representation on the bench. In a democracy, the majority of the population cannot be excluded if the public is to regard the system as fair. Justice must not only be done; it must be seen to be done. Additionally, Kenney argues to shift the burden of proof. Feminists shouldn’t have to explain why the presence of women on the bench is necessary. Rather, those who wish to exclude women should explain what justifies their exclusion.
The appointments of Justices Sonia Sotomayor and Elena Kagan to the U.S. Supreme Court have reignited public and scholarly interest in women’s participation on the bench. Gender and Justice was one of several monographs on women in the judiciary published in 2013. It is essential reading for any feminist legal scholar as well as anyone laboring under the misapprehension that patience leads to progress.
Bottom Line: Recommended for academic law libraries.
Reviewed by: Loren Turner, Reference Librarian, University of Florida Levin College of Law.
 Except, to some extent, in sex discrimination cases.
 E.g., Elena Kagan: A biography by Meg Greene (Greenwood, 2013); Gender and Judging edited by Ulrike Schultz and Gisela Shaw (Hart Publishing, 2013); My Beloved World by Sonia Sotomayor (Knopf, 2013); Rebels at the Bar: The fascinating, forgotten stories of America’s first women lawyers by Jill Norgren (NYU Press, 2013); Women, Judging and the Judiciary: From difference to diversity by Erika Rackley (Routledge, 2013). Additionally, in November 2013, Volume 127 of the Harvard Law Review published a series of essays in honor of Justice Ruth Bader Ginsberg.