GENDER ON THE BENCH IN FRANCE AND IN THE UNITED STATES
Thinking about Gender and Judging through the Lens of the “Imagined Judge”
Even though some scholars underlined the impact of legal cultures on the situation of women within the judiciary (Schultz and Shaw 2003; Schultz 2003, xxviii), the interactions between legal cultures and gender on the bench have not yet been fully explored. This paper intends to explore some of these interactions. It proposes, in particular, to question gender diversity on the bench through the prism of what I call the “imagined judge”. The latter conceptual tool refers to the shared beliefs and common ways of thinking about judges and their role ...view middle of the document...
In the remainder of this paper I shall proceed as follow. In the first section I will reflect on the various observations that have led me to consider gender diversity on the bench in France and in the United States. The second section will be dedicated to an outline of the French and the American imagined judges. Hence, it will present how the judges and their role in the legal system have been imagined both in France and in the United States. In the third section I will try to explore how the differences in these representations may inform the women’s presence, or their absence, on the bench as well as the existence, or the lack thereof, of scholarly considerations about gender diversity within the judiciary.
SECTION 1. CHOOSING FRANCE AND THE UNITED STATES
The context for reflections on gender diversity on the bench through the lens of the imagined judge
This section summarizes the four main observations that have led me to consider gender diversity on the bench in France and in the United States through the lens of the imagined judge. Let me specify that these observations, when made about the United States, are made with regards to the federal judiciary, and not to the state courts.
A first observation. The judicial role – understood as ‘the set of expectations, values, and attitudes about the way judges behave and should behave’ (Guarnieri and Pederzoli 2002, 68) – is conceived, in many respects, differently in France and in the United States. In a nutshell, the French judge ‘is seen as technician, as the operator of a machine designed and built by others’ whereas its American counterpart ‘is seen as a sort of social engineer, as a person specially equipped to perceive and attempt to solve social problems’ (Merryman 1974, 866–867). These representations of the judicial role, being conceptually so clearly distinct – almost as Weberian ideal types – are therefore particularly interesting to compare.
A second observation. France counts, proportionally, twice as many women on the bench than the United States.
In the US, there are currently 252 women for 533 men active federal judges (about 32% of women), amongst which three out of the nine US Supreme Court Justices, 53 out of the 164 Courts of Appeals active Judges (about 32,3%) and 193 out of the 603 District Courts active Judges (about 32%) (Federal Judicial Center). It is interesting to highlight that the percentage of women in the American federal judiciary is constant within the judicial hierarchy: women account for about a third of the active judges, from the US Supreme Court to the District courts.
France, on its part, counts 60,5% of women within its ordinary courts system (magistrats judiciaires) (Conseil Supérieur de la Magistrature 2012, 28). This proportion should not overshadow that the glass ceiling persists in the French judiciary: the judicial presence of women in France continues to be confined to lower judicial positions. The number of women judges indeed drops...