Female Justices, Feminism and the Politics of Judicial Appointment: A Re-examination

In recent years, feminists in the United States have consistently advocated for the appointment of more female justices to the Supreme Court. Given the records of Justices O’Connor and Ginsburg on the Court and broader empirical findings below the Supreme Court level showing a relationship between a judge’s gender and her voting behavior, feminists have argued that, from a feminist perspective, the appointment of new female justices to the Court is likely to offer significant substantive, as well as symbolic, benefits. This Article challenges such feminist orthodoxy by showing that it is based on a mistaken view of existing empirical data on judicial behavior and its likely future predictive value. The article shows how, from both a quantitative and qualitative perspective, the current literature on judicial behavior in fact reveals little if any meaningful connection between a judge’s gender and her pro-feminist views, in a jurisprudential sense. By drawing on comparative experience in Canada, which between 2005 and 2008 had a female majority on its Supreme Court, the Article also shows how any female-feminist connection previously evident in the United States, particularly at a Supreme Court level, is unlikely to endure in the future, given changes in the kind and degree of discrimination experienced by female justices prior to appointment. Consequently, the Article also calls for a change in strategy on the part of feminists to focus more directly on the demonstrated jurisprudential commitments, rather than on the gender, of future judicial nominees.