Which Judicial Selection Systems Generate the Most Women Judges? Lessons from the United States

Abstract

Do certain judicial selection systems produce a more diverse and representative judiciary than others? Studies of electoral systems show that when voters elect more than one person at a time or rank their preferences rather than vote only for one person voters are more likely to elect women and minority men to office. Some claim so-called merit judicial selection systems are superior because they bypass voters who discriminate and constrain appointers, thereby eliminating politics and bias from the selection process. Social science research, however, shows that merit systems are not better than elective systems in producing a diverse and representative bench. The evidence shows no systemic effect. The systems with the highest numbers of women judges are civil law systems that recruit judges to the career civil service by examination. The common law jurisdictions that enjoy the greatest increases in the numbers of women judges serving have made the gender diversity of the bench a clear priority and set goals, rid the system of indirectly discriminatory standards, trained selectors about the dangers of implicit bias, and actively recruited women. Alternatively, a particular governor, president, or prime minister with the power to appoint judges has made a diverse and representative judiciary a priority and chosen women and minority men accordingly. Even the best systems have substantial room to improve. After examining the many explanations for women’s under representation, I review the evidence on systemic effects in the American states. I then look at three jurisdictions that have made impressive progress in increasing the number of women judges serving — Ontario, Scotland, and South Africa — to discover the ingredients of their successes.