Women's Representation in the Highest Court: A Comparative Analysis of the Appointment of Female Justices

Abstract

The presence of women justices in the highest court varies significantly from country to country. Using an original data set of women's representation in the highest constitutional courts in 50 democracies, we assess the causes of this variation. We find, contrary to the prevailing view, that the strength of the institution is not significantly related to the number of women on the court. Instead, we find that the existence of a "sheltered" versus "exposed" selection mechanism is the critical determinant of women's presence. That is, when the selectors are sheltered from electoral accountability, they are less likely to select women as judges because they do not benefit from credit claiming. When the selectors are exposed and can claim credit, however, the unique traits and visibility of the highest court generate an incentive to appoint women.

Her Ladyship Chief Justice: The Rise of Female Leaders in the Judiciary in Africa

“…Our preliminary finding fits with what scholars of judicial politics in the United States have found: the chances that a woman will become a high court judge do not seem to depend on whether judges are elected or whether judges are appointed (Alozie 1990;Bratton and Spill 2002;Frederick and Streb 2008;Click and Emmert 1987;Hurwitz and Lanier 2003;Martin and Pyle 2002;Williams 2007). Comparative studies of women's presence on high courts are more mixed, with some finding that judicial elections may favor women and minorities (Driscoll and Nelson 2015) and others finding that high courts are likelier to have more women if appointment is centralized in the presidency (Valdini and Shortell 2014;Williams and Thames 2008).…”

Women in Judiciaries Across Africa

“…Studies on the role and outcome of actors involved in judicial selections remain inconclusive. For instance, Valdini and Shortell (2018) have noted that where the selectors or appointers are "open" and not "sheltered" from the electorate, the stakes are high for them to promote gender and other forms of diversity. Other studies have argued that where there are multiple appointers, there are higher chances of increasing diversity (Gill 2012).…”

“…This focus on diversifying the gender composition of domestic judiciaries has given way to adopting intersectional approaches in examining the realities of minority women judges. Globally, studies indicate increased opportunities for women's access to the bench, though most of these studies focus on the higher courts (Escobar-Lemmon et al 2019;Valdini and Shortell 2018;Hoekstra 2010). How judges are selected and who does the selection and appointment, have an impact on the outcomes, as different countries employ different judicial selection methods depending broadly on the type of legal tradition in use.…”

The Government Deference Dimension of Judicial Decision Making: Evidence from the Supreme Court of Norway

“…This literature is most strongly related to the theme of judicial independence, although it has occasionally been hard to link merit‐based or depoliticized appointment mechanisms (a component of most measures of de jure judicial independence) to de facto judicial independence (Melton & Ginsburg 2014). There is good evidence that different systems lead to judges with different observable characteristics: Valdini and Shortell (2016) show that ‘exposed’ appointment mechanisms (where appointments are made by publicly accountable actors such as elected politicians) are associated with a greater proportion of female appointees than ‘sheltered’ appointment mechanisms (where appointments are made by merit‐based appointments commissions). Insofar as judicial characteristics can affect preferences (Tate 1981), this might be the basis for a link.…”