Where are all the women judges?

I am not sure whether this is an apocryphal story, but I was told that in the late nineteen nineties a women judge was appointed to one of the High Courts in South Africa. She was the first women judge appointed in that High Court. On her first day at the office, she discovered that the court building did not contain toilets for female judges. She had to slip into the men’s toilet – to great consternation of her male colleagues.

When the building was built decades earlier during the apartheid era no one had thought that a woman would ever become a judge in South Africa. Women had to stay at home and raise children and organise tea parties while their husbands did the “real work” (as if raising children is not a hell of a job – although grossly underpaid).

In 1994 South Africa only had one female judge – Leonora van den Heever – and although things look different sixteen years later, we still have a very long way to go to make the bench more representative in terms of gender. While some members of the Judicial Services Commission (JSC) sometimes ask the white male candidates whom they do not like (because they are either too conservative or too progressive) why they applied at all, given the need for racial transformation, I have yet to hear a member of the JSC asking male candidates why they had bothered to apply given the need for the gender transformation of the bench.

Franny Rabkin, in an excellent article in Business Day, points out that as of November last year of 216 permanent judges, only 49 were women. This means that less of 25% of our judges are female while more than half the judges are black (broadly speaking at least). As Rabkin points out:

A frequently heard argument is that the pool of women lawyers is just not large enough. However, a key obstacle to the appointment of more women as judges is the widespread failure to appoint women as acting judges — a key foot in the door for later permanent appointment, says Jennifer Williams of the Women’s Legal Centre, a legal advocacy body. “It is a huge obstacle ,” Williams says .

It is of course true that the JSC has indicated that having acted on the bench was one of the main criteria used by it to decide whether a candidate was suitably qualified for appointment to the bench. This raises two questions. First, should the emerging practice of the JSC to appoint only those candidates who have previously acted on the bench be dropped? Second, why is it that so few women are actually given acting appointments?

On the first question I am agnostic. An argument could be made that acting appointments are necessary because such appointments help to expose candidates to the rigours of the job and can also give an indication whether they are up to the job. On the other hand, given the fact that all but one of the Judge President’s are male and given further that some of those Judge Presidents hold deeply patriarchal views, the Judge Presidents may very well become gatekeepers who limit the opportunities for women to be elevated to the bench.

(And even where Judge President’s are female there is no guarantee that they would promote the appointment of female acting judges because in a world dominated by men, I am told, some women in powerful positions feel threatened by other successful women because they believe that there is usually only space for a few women to shine. Keeping other women out thus becomes a matter of professional survival.)

On the second question, many lawyers will point out that there are far fewer female advocates and hence that the pool of candidates from whom judges are normally appointed contains only a small pool of women. This is correct. The bigger question, however, is why this should be the case. 

If one disregards the usual sexist arguments that fewer women are emotionally or intellectually capable of withstanding the rigours and competitive atmosphere at the Bar, one is left with two other explanation. First, the patriarchal and sexist attitudes of some male advocates create a hostile environment for women lawyers who do not want to work with colleagues who make crude jokes and who patronise and objectify women.

In that world, the most successful women lawyers are often perceived to be the one’s who can “fit in” and are accepted because their male colleagues deem them to be “honorary men” (much like black professionals thrive in a racist environment by becoming “honorary whites”). I call this the Margaret Thatcher phenomenon: some women can become successful because they can demonstrate to the men around them that they are just like them and that they have the necessary balls, figuratively speaking.

Second, because advocates can only thrive if they are briefed by attorneys, the briefing patterns also play a role in depriving women of the interesting and complex work necessary for building a thriving practice. Many women advocates who go to the Bar are expected to focus on divorces and family matters and are not expected to get involved in commercial litigation. The old boys network also influences who is briefed and if one does not play golf or did not go to the right school, one may find oneself doing mundane work – if one is lucky enough to get work at all.

Of course, for black women this phenomenon is even more pronounced.  The female advocates who stick around and make a living are also deemed with suspicion by some of the more sexist attorneys and advocates who assume that they could not possibly be as good as their male counterparts. To really make a name as a women advocate, one has to be far better than the average male colleague.

Although I am not claiming that all male lawyers are sexist pigs (although some are), and although I do not wish to generalise, the lack of suitably qualified female candidates for appointment to the bench clearly shows that the legal profession still has a long way to go to rid itself of patriarchal notions of male superiority and excellence. At least black lawyers have the Black Lawyers Association (BLA) to look after their interests, but women lawyers do not have a formal institution with the same clout as the BLA that might promote the rights and interests of female lawyers.

In the light of the above it is actually surprising that almost a quarter of judges are indeed female. 

The question to be asked of the profession is what it is planning to do to address the problem of gender representation. But one may also ask female lawyers themselves why they have not orgnanised themselves into a Women’s Lawyers Association to push gender transformation in the legal profession? Is it perhaps that they are scared that they will be ostracised by their male colleagues if they do? 

The Constitution is clear: BOTH racial and gender should be considered when appointing judges to the bench. But as with race, a sufficient number of suitably qualified women candidates will only be found if the legal profession itself takes drastic action to open up the profession to more women lawyers.

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