Breaking the Silence:

Gender Mainstreaming and the European Judiciary

Paper to be presented at the workshop "Mainstreaming Gender in European Public Policy," University of Wisconsin, Madison, October 14, 2000

DRAFT: DO NOT DUPLICATE OR CITE WITHOUT PERMISSION

by Sally J. Kenney

Sally J. Kenney

Associate Professor/Director, Center on Women and Public Policy

Humphrey Institute of Public Affairs

301 19th Avenue South

Minneapolis, Minnesota 55455

612-625-3409

skenney@hhh.umn.edu

Introduction

In the mid-1970s, women entered the legal profession in the United States in increasing numbers and feminists demanded that the women be appointed to the judiciary. Both Presidents Carter and Clinton appointed large numbers of women to the federal bench, and President Reagan appointed to first woman to the U.S. Supreme Court. Nearly all state supreme courts have now have had at least one woman member. Although women have a long way to go, gender is now on the agenda. An all-male bench is no longer the unremarked upon natural order. Although women have held elective office in higher numbers in some parts of Europe than in the United States, women in the European Union have been slow to extend the demand for "gender mainstreaming" to courts, despite the fact that in many European countries large numbers of women serve as lower court judges--a civil service career track entered upon graduation from legal studies, and despite large numbers of women entering the legal profession more generally. The latest calls for quotas for women in regional parliaments in Scotland and Northern Ireland or in the National Assembly in France are not accompanied by parallel mass movement demands for parity on the bench, although feminists have now at least raised the issue.

Although the European Court of Justice has, by British legal standards at least, championed the cause of equal treatment for women in its judgments, the Court itself has consisted almost exclusively of male members (members include judges and advocates general). The European Court of Justice, which began as the court for the Coal and Steel Community in 1952, had had only one woman member, Rozès, an advocate general appointed by France who served from 1981-84, until Ireland appointed Judge Fidelma Macken in late 1999. Germany quickly followed suit with the appointment of Ninon Colneric in July, 2000. And the Austrians have appointed Christine Stix-Haxl who will assume the post of Advocate General in October. The European Commission’s Directorate-General for Employment, Industrial Relations and Social Affairs (DGV) produced the first report ever on "Women and decision-making in the judiciary of the European Union" last year, and the founding meeting to form a European Women’s Lawyer Congress was held in March. It would appear that the last twelve months have been a real turning point for placing the gender of judges on the agenda in the European Union.

This paper explores the concept of gender mainstreaming and recaps the history and process of appointments to the European Court of Justice. It then traces recent developments and speculates as to what accounts for the time lag as well as the timing of the recent emergence of the issue. It is not surprising that feminists were slow to tackle the representation of women on courts--not only because the ECJ has issued many rulings favorable to women but also because the process of judicial selection is hidden and little attention has been paid to the individuals making up the ECJ, compared to the U.S. or even the House of Lords or German Constitutional Court. I will argue, however, the more important reason for the delay is that courts themselves are not perceived to be representative institutions in the same sense of legislatures or even executive branch agencies and the civil service. How is the concept of representation different for courts and legislative and executive bodies? Why is it the case that member states recognize the importance of some aspects of representativeness, such as legal system, geography, and nation, but not others, such as gender and ethnicity? How is it that norms of judicial representativeness change? Whom do women on the bench represent, and why is their presence important?

I. Gender mainstreaming and courts

Although feminists lobbied for women on the bench as far back as the Roosevelt Administration (Cook), it was not until the 1970s that such a demand emerged from a mass movement. The demand for women on the bench was not merely a natural outgrowth of the expanded aspirations of the large numbers of new women entrants in the legal profession, rather, feminist lawyers and non-lawyers alike sought a dramatic symbol of women’s achievement. The goal of placing women on the bench, then, became akin to electing the first woman president, or shooting the first woman astronaut into space. Proponents hoped such an achievement would have spillover effects in all fields of women’s endeavors and delegitimate arguments about inferiority and justifications for exclusion. But as well as desiring a symbolic gesture, feminists in the United States also had specific legal aspirations as well as grievances. Litigators hoped that the Supreme Court would extend equal protection to sex-based classifications, making an Equal Rights Amendment unnecessary. In the 1970s, courts were vehicles for contesting women’s exclusion from everything from estate administrators to military cadets to juries. While they enjoyed some successes, after 1983, feminists saw their legal agenda thwarted as courts upheld all-male draft registration or the differential treatment of pregnant women. Moreover, their heightened attention to the legal arena arose because judges acted on their own initiative to disadvantage women, for example by choosing to issue the Hale charge to jurors in rape cases ("rape is a charge easily made and difficult to defend"), by extending and reinforcing legislative exclusions (allowing employers to exclude women from hazardous work, despite statutory prohibitions), or undermining feminist legislative victories, such as legislation to allow evidence of battering in cases of women who had killed their partners or to recognize the contribution of homemakers in divorce and custody cases. Whether it was challenging employment discrimination, protecting victims of domestic violence, or securing justice for divorcing spouses, feminists in the U.S. knew early on where courts were a critical arena for feminist engagement.

The election of Carter in 1976 provided an opening in a number of ways. First, Carter’s experience as a reform governor challenging a Southern party machine made him favor merit selection of judges as a general principle and racial diversity on the bench in particular. Second, Carter cultivated women voters by placing Sarah Weddington (the lawyer who argued Roe v. Wade) in charge of women’s issues in the White House and directing her to facilitate the appointment of women in the executive branch as a whole. Less well known, however, is that Associate White House Counsel Margaret McKenna doggedly fought Attorney General Griffin Bell to ensure that newly-established federal merit advisory committees for district court appointments actively sought out qualified women. But most importantly, Congress significantly enlarged the federal judiciary, allowing Carter able to be able to both honor promises made by senators to cronies and to diversify the bench.

Groups such as the National Women’s Political Caucus and the National Taskforce on Women and the Courts developed lists of qualified women judicial candidates to feed to Weddington and McKenna. Liberal governors appointed women to state supreme courts in Minnesota (Rosalie Wahl) and California (Rose Bird) and they in turn championed gender bias (or fairness) taskforces (Resnick 1996). Although President Carter had appointed more women to the federal bench than all previous presidents combined, he was outflanked when Republican nominee Ronald Reagan, mindful of growing evidence of a gender gap among voters, promised in the election campaign to appoint a woman to the U.S. Supreme Court. And Reagan made good on that promise with the appointment of Sandra Day O’Connor in 1981.

Were feminists engaged in gender mainstreaming although they did not use that term? (I am hopeful that other papers in this collection will explore in greater detail the etymology of this term, and what it means to European feminists.) What does the term gender mainstreaming imply? As I understand the term, gender mainstreaming incorporates a number of complex ideas. First, gender mainstreaming goes beyond a narrow meaning of equal treatment or equal opportunities, calling attention to the rules of the game itself. Rees repeatedly uses the metaphor of the marcher’s stride, saying women should not be permitted to serve in the military only if they can match men’s stride, a standard stacked against women as a group because women’s legs on average are shorter than men’s. Rather than removing explicit or implicit bars to women’s participation, gender mainstreaming calls for dismantling hidden standards that disadvantage women as a group. In the parlance of discrimination law, these are the categories of disparate impact or indirect discrimination. Gender mainstreaming, then, advocates going beyond merely eliminating bars for token women who conform to male norms--in this example, long-legged women who can match the male stride--but calls for changing the rules of the game so that women as a group are not systematically disadvantaged. This is familiar terrain for American feminist legal academics, and I have written about the need for what I call substantive equality with respect to pregnancy.

A second aspiration of gender mainstreaming is widening the scope of policy to encompass what Rees calls the gender contract. We must not only challenge hidden male norms and standards in the public world of employment and government but call into question arrangements between men and women in the so-called private sphere. Rees uses the example of unequal childcare and household responsibilities that remain largely unchanged despite women’s entry into paid work in the last three decades, but one could just as easily take the example of violence against women--battering, sexual assault, and harassment (what Pateman would call the sexual contract). Opening up the position of bus driver or carpenter to women, even reserving a quota of positions for them, will do little to eliminate occupational segregation by sex if women are too injured to go to work, afraid to leave home because they are being terrorized by estranged partners, threatened by hostile male co-workers, or excluded from the mentoring and on-the-job training necessary to safely perform their jobs. The gender order--one’s aspirations for oneself, the expectations for care and support of family members (spouses, children, parents, even schools, churches, and community institutions), the orientations of bosses, co-workers, underlings, fellow users of public transport, etc. shape and constrain women’s ability to partake of employment opportunities.

Gender mainstreaming, then, seeks to go beyond formal equality of opportunities for individuals or even positive action (affirmative action) for groups that place the problem of social exclusion with the deficiencies of women rather than bringing into focus norms and structures that privilege men. Counting and bringing women into decision making is part, but not all of the agenda, just as gender assessment, a sort of feminist environmental impact statement for all policies, can be part of the program, but, because it brings the gender analysis in at the end, rather than the beginning, will be insufficient. I applaud the efforts to bring women, equality policy, gender analyses, and the so-called gender contracts into the center of policy making. I would, however, offer the following caveats from the standpoint of U.S. experience and feminist theory.

First, I think it is misguided to lay to much blame for lack of effects on the concepts themselves and a mistake to devote too much attention to taxonomies or semantics rather than critiquing how the discourse is used in practice. Equality of opportunity or positive action can be either ineffective or revolutionary depending on how they are implemented, who gets behind them, and how they are used. Similarly, I would argue, the rhetoric of gender mainstreaming may well be twisted and deployed to diffuse its transformative potential, or worse, the discourse will rebound and be used against feminist goals. While the concepts of equal employment opportunity are limited in the way observers have pointed out, the policies themselves have more transformative potential than has been realized because they have not been fully utilized. Feminists in the U.S. have watched feminists in international arenas take weak international conventions and use them to mobilize for significant effects within their own national systems. Conversely, we have watched the most sophisticated feminist statutory instruments be construed contrary to their original aims.

A second, and related point, emerges from 30 years of American experience with feminist public policy and feminist theory, and that is to be very wary and careful about how we deploy concepts of women’s difference. I would argue that at times Rees talks about women’s difference as if it is objectively measurable, monolithic, and dichotomous (40). The content and meaning of men’s and women’s differences are constantly changing and, therefore, as I have argued elsewhere, it makes more sense to understand gender as a process rather than thinking about it as a fixed characteristic of bodies (PRQ 1996). One feature of Rees’s argument, that is evident in the European Court of Justices case law on pregnancy, employment, and family leave, is treating all women as if they are married to men and bearing children (which is then constructed as a deficiency for which women need compensation to compete in the labor market). Somehow our challenge as we seek a the more sophisticated gender analysis of public policy that gender mainstreaming calls for is to not only incorporate some abstract notion of "women’s difference" singular, but capture the significance of women’s disproportionate household labor, for example, while capturing differences among men and women, parents and non-parents, those who live outside of the heterosexual norm, etc. What is interesting, of course, is how the devaluation of women’s labor attaches to those who do not share the difference (unmarried women with no children) AND how the story justifying the devaluation changes while the devaluation itself remains a constant.

So, what does this discussion of gender mainstreaming have to do with courts? I would argue that although they did not use that term, feminists in the U.S. from the 1970s onward have been engaged in a sophisticated policy of gender mainstreaming and the courts, and that this process has recently emerged in the European Union. First, in the narrowest sense, suddenly feminists were counting. How many women were on each court? How many women in the pool considered? How many women had executives appointed? Feminists quickly demanded changes in the process of selection--taking it out of the hands of senators and the bar association--and including lay members on merit advisory panels, as well as calling for more gender-balanced outcomes. But women on the bench was more than an end in itself, it was a means to changing judicial behavior. Feminists wanted judges to stop demeaning women lawyers, clients, and witnesses. They wanted judges to stop blaming rape victims and battered women for their assaults. They wanted lesbians to retain custody of their children, and housewives who’d sacrificed everything for a husband’s career to receive maintenance. In short, they wanted to bring to the bench a gender analysis of questions before the court, from criminal law, to family law, to taxation and inheritance.

It is no accident that the demand for women on the bench emerges at the same time as feminists were turning to the courts for public policy changes. First, feminists sought merely to voice the arguments--to bring the test cases, to file amicus briefs, and to make the case in oral argument that state policies discriminating against women were unjust. But second, it accomplishes little to make the argument to a judiciary hostile to it, perhaps one of the main reasons why few British lawyers saw such a course of action as attractive. Feminists knew that part of their strategy must include having a voice at the table when courts deliberated. While it was not a panacea, having Justice O’Connor in the room when a gender-based affirmative action case was discussed (Johnston v. Transportation) at least raised the possibility that one woman’s experienced of gender-based discrimination in the labor market would be a part of the conference discussion.

The third component of American feminists’ attempt to introduce gender mainstreaming and the courts, in addition to trying to expand equal treatment case law and secure the appointment of women to the judiciary, is the movement to undertake gender bias taskforces. Begun first in the state of New Jersey, state supreme courts (and now federal circuits) sponsored investigations into their own practices. Having the virtue and the limitation of being conducted by a committee including members of the courts themselves, as well as social scientists, such studies often took the form of questionnaires to members of the bar, public hearings, and investigation of particular areas of case law, most often divorce and custody and domestic violence cases. The results were hard to ignore. Women lawyers complained of widespread harassment and demeaning treatment, studies documented enormous discrepancies in judicial treatment of cases on divorce and domestic violence, and the public testified to their perceptions of bias and unfairness. Perhaps most importantly, the process raised the consciousness of the male judges themselves who turned to their women colleagues for reassurance that "such things have never happened to them" only to be told that they did indeed. Once the consciousness was raised of the few, and the report produced to document their findings, the judiciary itself undertook modest efforts to correct the wrong uncovered. As more states undertook such searching self-study, it became harder to not get on the bandwagon. Now, more than 30 jurisdictions have produced reports.

When one combines the aggressive pursuit of the expansion of equal treatment case law, the campaign to appoint more women to federal and state benches, and the initiative to conduct gender bias taskforces and implement their recommendations, one could argue that feminists in the U.S. have begun a campaign of gender mainstreaming. The appointment of women to the courts is but one way to insert a sophisticated feminist analysis of public policy questions and, in the American polity, courts are a central arena for public policy analysis and engagement. I now turn to gender mainstreaming in European courts. Have European feminists launched a similar initiative? How is it part of the gender mainstreaming efforts more generally? Before I can answer those two questions, I must first offer some background about the European Court of Justice.

II. Gender and Judicial Appointments at the ECJ

Article 167 of the Treaty of Rome states that the judges and advocates general shall be appointed by common accord of the governments of the member states for a term of six years. In practice, each member state government follows its own internal selection procedure and simply announces the result to the Council when a vacancy occurs. Because the Court of Justice is a hybrid, a supranational court that is part international and part constitutional, member state judicial selection procedures display an interesting combination of conventional judicial selection procedures and systems for choosing European Community officials more generally. In Germany, for example, the key cabinet department deciding on the appointment appears to be Economics, in Denmark, the Foreign Office, in the U.K., the Treasury. Not only are EU legal appointments seen as matters of economic or foreign policy rather than legal policy, but in several member states, such as Germany and France, the system of appointing judges to constitutional courts--seen as more political--is very different than to "ordinary" courts. Rarely, then, are appointments to the European Court of Justice merely "regular" judicial appointments that mirror internal national procedures. As is the case for the appointment of judges in European member states generally, there appears to be little public scrutiny of appointments to the Court of Justice either nationally or by Community institutions such as the Parliament or Commission. We know little about how member states make their appointments to the Court of Justice (Bzdera 1992, 128, 130) and little about members’ legal and political backgrounds. No journalists comprise a Court of Justice press corps who go beyond reporting the outcome of the cases to analyzing how the Court is operating.

As of 1997 when three new countries joined the European Union, fifteen judges sit on the Court of Justice, one from each member state. The Council of Ministers officially appoints members for renewable six-year terms. The judges elect one of their members to be the President for a three-year term. The President assigns cases, is in charge of the administration of the Court, and leads the Court in its internal deliberations. Also sitting with the Court are nine advocates general (modeled on French practice) with one assigned to each case. The advocate general reads the briefs, attends oral argument, and writes an opinion setting out the facts, summarizing the legal arguments, and recommending how the Court should rule.

While many U.S. Supreme Court justices are drawn from the federal bench, there is no equivalent Community bench from which to draw members of the Court of Justice (with the possible exception now of the Court of First Instance). Members are drawn from the judiciaries of member states, judicial administration, the practicing bar, and the professorate. Both language (the working language of the Court is French and conferences among the judges are not translated) and knowledge of Community law become important considerations in appointing members to the Court of Justice in a way that has no parallel for the appointment to national high courts.

Appointments to the European Court of Justice receive little attention by politicians, legal academics, political scientists, journalists, or the public. One explanation is that Europeans, especially officials at European Community institutions, accept and consider normal a higher degree of secrecy--in EU parlance, lack of transparency, and judicial appointments and legal matters are merely the extreme case of this. Furthermore, I would argue the line between law and politics is drawn in a different place. Scholars and judges alike resist classifying and studying the Court as a political institution. In 1979, President Kutscher described the Court’s attitude to publicity this way:

This denial of the political role of courts persists, despite the increasing role of national courts in shaping public policy in France (Stone), Germany, and the United Kingdom (Sterett) as well as the greater impact of supranational courts, such as the European Court of Justice, the European Court of Human Rights, and the World Trade Court.

The Court has had seventy-six members since 1952, fifty-four have served as judges, twenty-eight as advocates general (six men have held both position). Each country faces its own set of interests and cleavages to represent on the Court: party, language, region, legal system, governmental department. Among the member states, leadership of Community institutions must be balanced--for example, Germany cannot have a President of the Court and the Commission at the same time as it chairs the Council. Within a member state, a different balancing process occurs. Parties or languages may have to be balanced across ECJ appointments: advocate general, judge, judge at the Court of First Instance, or across "international" courts such as the Court of Justice, Court of Human Rights, or International Court of Justice. Appointment to the Court in some cases in some countries displays many of the same mixed features of ambassadorships: exile for a party luminary who is in trouble, a retirement prize for exemplary public service, the removal of a competitor within a party, or a consolation prize for a failed judicial appointment.

While we know little of the inner processes of judicial selection in member states, we can generalize somewhat from the outcomes. Appointment to the European Court of Justice, in many member states, is political in the sense that personal connections to the appointing executive and party credentials are paramount, even if the appointments are not motivated by specific policy goals, for example, trying to make the Court less "activist" or less integrationist. Given all of these factors, it is hard to argue that appointments are made on the basis strictly of merit, whatever that means. Two examples illustrate. The Belgian government’s appointment of Melchior Wathelet to the Court in 1995 drew the wrath of Members of the European Parliament both on the grounds of his judicial abilities as well as concern about events during his tenure at the Ministry of Justice (Helm 1996, 11; Agence Europe 1997). Ireland, too, has appointed its politically connected top jurists who may know little about EC law. O’Dalaigh, twice Attorney General, a Supreme Court Justice for nine years, and Chief Justice of the Supreme Court for eleven, did not last two years on the Court before he left to become President of Ireland. In his farewell remarks, O’Dalaigh makes several references to his difficulty with both the French language and European Community law. When we talk about appointments to the Court taking into account gender, then, it is important to note that many factors come into play in choosing members under the current system.

To the extent that the European Court of Justice has generated public or academic discussion, the most salient issue has been the powers of the Court as a whole rather than the length of term of members or the method of judicial selection. There has been little public or legislative involvement in the selection of judges or advocate general at the European Court of Justice within member states (Scheingold 1963). In Britain, for example, there is no equivalent of the Senate confirmation proceedings: the decisions all take place behind close doors and all documents are secret. Kennedy and Brown describe the American process of confirmation as "unseemly," and everyone at the Court is well aware of Robert Bork and Clarence Thomas and anxious not to emulate the U.S. example.

The European Parliament’s demand for a more substantial role in all matters of European Union affairs extends to a claim to participate in the selection of judges. The European Parliament is one of few voices demanding a consideration of judicial selection of the ECJ, joined by the Economist, which recently called for either the European Parliament or national parliaments playing some role, the occasional editorial writer, and the Bavarian Minister for European Affairs, Thomas Goppel. The Court is adamantly against such involvement. It its report for the 1996 Intergovernmental conference, the Court wrote:

B. The First Woman Members

Prior to 1999, of the 54 judges at the Court of Justice and 28 advocate generals, 76 appointments, only France had appointed a woman, Rozès, as advocate general in 198 , and until 1999, she was the only woman member of the Court. Rozès had done graduate work in public law, political economy, and political science after completing her diploma in Law at the University of Paris. She served as a Judge on the Tribunal de la Seine for seven years before being appointed Vice President (and later President) of the Tribunal de Grande Instance. She had also worked at the Ministry of Justice, overseeing the Ecole Nationale de la Magistrature. Rozès left the Court after only three years to serve as First President of the Cour de Cassation.

President Mertens de Wilmars made the following comments when Rozès was sworn in:

When I visited in 1994, members of the European Court of Justice were defensive about the absence of women, and were obviously asked about it frequently by visitors to the Court. The well-rehearsed answer they all gave was that the new Scandinavian members could be counted on to appoint women members. They did not, although they did appoint two women to the Court of First Instance in 1997 (Virpi Tiili from Finland and Pernilla Lindh from Sweden). When the Financial Times reported on the new members in 1994, for the first time and in the opening paragraph of the article, it stated: "None of the appointees, announced last week, were women, leaving the Court once again all male (Court Chambers 1994, 13)."

In 1999, Ireland appointed former High Court Judge, Fidelma O’Kelly Macken, a barrister specializing in commercial law who also taught at Trinity College, Dublin. While Rozès was the first member of the Court, she was an advocate general. Macken was the first woman judge. Characteristic of the low-level of press attention any ECJ matters receive, most press accounts noted without comment that she was the first woman judge. The European Database "Women in Decisionmaking" noted that member states had managed to appoint one woman judge in 50 years and that she was one of 24 members. The Irish Times offered little fanfare, adding only to the Court’s press release the major Irish cases she had been involved with. The tone of the Financial Times report was different, entitled "Her Turn," the article stated:

[other two women]

C. The European Parliament champions the appointment of women

While since 1995 the Financial Times and occasionally other members of the press have criticized the all-male bench, it was members of the European Parliament who first raised the question of judicial selection and the gender composition of the European judiciary, to little effect. The European Parliament is a weak body with little legislative power (Westlake 1994, Economist 1991, 1994). Greater European integration and an expanded scope of activity led to concerns with the Union’s co-called democracy deficit (Westlake 1994, 106-9)--the most important decisions are made by non-elected bodies (the Commission, the Council, or the Court of Justice) and these decisions are made in secret. In European Community parlance there is a lack of transparency. One of the ways Parliament would like to increase its power is to participate in appointments to the European Court of Justice.

From the outset of the Community, different possible methods of selecting judges were floated (Feld 1963, 53 n. 68). Parliament has called for a greater role through individual questions to the Council, through resolutions and committee reports, and through a draft constitution. As early as 1980, MEPs Sieglerschmidt and Glinne submitted written questions to the Council asking why Parliament did not have a greater role in selecting judges and why the process differed from the Council of Europe’s selection of judges to the European Court and Commission of Human Rights. When the Council merely restated the Treaty Provisions (Article 167) and made the profound observation that the two systems were different, a testy Sieglerschmidt responded with the following question:

The Council reply noted no such inconsistency, and pointed out that: "Member States do not think the institutional balance which underlies the Treaties establishing the Communities should be changed." The Council then reiterated that the Communities differ from the Council of Europe.

In 1985, Dieter Rogalla submitted a written question asking the same question (Feld 1963, 42). Commission President Delors replied simply that it was not for him to comment on how the Council of Europe conducts its business and the current arrangements seemed to work just fine. Rogalla next posed the question to the Council of why Parliament could not play some role in judicial appointments. The Council merely noted that changing the role of Parliament in the appointment of judges would require amending the Treaty.

As early as 1982 as part of proposed reform of the Treaties, Parliament called for greater participation in the process of judicial selection. In 1993, the European Parliament passed a resolution calling for Parliament by majority vote in conjunction with the council to appoint judges to the Court of Justice for non-renewable nine-year terms. This is then included in Parliament’s proposed Constitution for the European Union. In 1993, the fullest exchange occurred in a response by Council President Pangalos to an oral question by MEP Alber on behalf of the Committee on Legal Affairs and Citizens Rights. Alber pointed out that the Community was constitutionally different now than when the Treaty of Rome established an economic community, and that the Court of Justice was now a constitutional court. While Alber was not willing to go so far as the Parliament’s draft constitution to call for Parliament to appoint judges, he thought that Parliament should at least be consulted. Pangalos replied by emphasizing that the Treaty provisions do restrict member states in their choice of appointment to the Court by requiring them to be eligible for the highest judicial office and to be independent.

MEP Medina Ortega then spoke. He observed that no one is challenging the independence, stature, or importance of the Court. Nevertheless, he argued, the method of selection (intergovernmental) is outdated given this stage of European integration. After noting the procedures at the Council of Europe (for the Court of Human Rights) and in the United States (for the Supreme Court), Ortega commented about the judges at the Court of Justice: "their appointment is lacking in something which is currently receiving particular emphasis in the process of European integration: transparency and democratic accountability." Ortega called for some consultation, for example, with the Committee on Legal Affairs and Citizens Rights. Pangalos suggested that the appointment of judges might be a suitable topic for the 1996 Intergovernmental Conference.

In 1989, with the creation of the Court of First Instance, four members obtained 261 signatures for a written declaration that member states appoint women to the Court of First Instance. None did, although two members are now women, appointed by Sweden and Finland. Perhaps the most hard hitting challenge to Member States’ absolute discretion with respect to appointments to the Court came from a written question by Jaak Vandemeulebroucke in 1995. Vandemeulebroucke suggested that Belgian’s recent appointment, Wathelet, was unqualified because he lacked independence. According to Vandemeulebroucke, fifteen years of government service without any "de-lousing" ensured that Wathelet could not be independent of the appointing government. Furthermore, he questioned whether Wathelet would have met the standards the Treaty sets down that judges meet the standards for high judicial office within the member states. Lastly, Vandemeulebroucke questioned whether Wathelet had sufficient knowledge of EC law. The answer is typical, in that the Council merely restated the Treaty provision:

Parliament clearly wants some role in judicial appointments and may use the slowness of member states to appoint women as the vehicle for demanding a greater role. When member states appoint members of the Court who are under a cloud, they provide Parliament the opening it may need to press the issue further.

In addition to the Court’s recommendation against a role for Parliament in its paper for the 1996 Intergovernmental Conference, at least two former members of the Court have taken public positions against it. While still a judge, Fernand Shockweiler wrote in Révista di diretto Europeo that Parliament’s participation would undermine judicial independence. Sir Gordon Slynn, too, spoke out against involving Parliament in the process, arguing that member states knew best who was well qualified and that, although "non-legal, non-judicial factors" do come into play, involving the Parliament would "politicize" the process (Bacon 1993). Former judge Koopmans, however, took a different position. He pointed out that Parliament’s current proposal of dividing appointments between the Council and the Parliament might be unworkable because politicians’ belief that the nationality of the judge is very important would lead both bodies to appoint one judge from each member state, making the Court too large to be workable. Unlike Shockweiler and Slynn, however, Koopmans was less negative about Parliament playing some role, suggesting that a system modeled on the U.S. Senate’s powers of "advice and consent" might be more appropriate (1985, 46-47).

Judges at the European Court are interested in protecting the power of the Court to interpret the Treaty and maintaining their independence from member state control. They are also concerned about representing the legal traditions within the community and concerned with making the Court work with so many languages and legal traditions. The European Parliament stands virtually alone in calling for public participation in selecting judges, and sometimes couches its call in terms of the absence of women on the Court.

D. Recent Developments

The authors of the 1999 Commission report "Women and decision-making in the judiciary in the European Union," Miriam Anasagasti and Nathalie Wuiame, credit the 1995 UN meeting in Beijing as the energy behind the call for balanced participation of women and men in decision making processes in all sectors and areas of society. Codified in the Fourth Action Programme for Equal Opportunities (1996-2000) and supported by a Council Recommendation to Member States, the call for women in decision making took some time to trickle into legal arenas, particularly judges and public prosecutors. This 1999 report was the first time that the Council or Commission or even the Directorate-General for Employment, Industrial Affairs (DGV), or the Equal Treatment Unit addressed the paucity of women on the European bench. Assisted by the Law Society of England and Wales and the European Network on Women, Anasagasti and Wuiame recognize that balanced participation is necessary for the legitimacy of all representative bodies and point to the increasing law-making power of judges. In many ways, the report mirrors the gender bias taskforce investigations in the United States, without seemingly referring to them or being informed by them. The investigators conducted a survey of men and women on the bench and collected data. Although they recognize that the number of women judges is increasing, they document both vertical segregation (the glass ceiling) and horizontal segregation (corralling women into a small number of subspecialties of law). Its recommendations are also familiar: identify the discretionary criteria (politics) that enables some judges (men) to rise to higher levels of appointment and make the procedures more open and transparent. Generate policy support at top levels and monitor the percentage of women. Lastly, the report challenges member states and the EU to examine working patterns that favor male norms and make family life difficult and hostile working environments and conditions.

The survey revealed that a significant minority of judges (more women than men) do believe that gender makes a difference in certain kinds of cases, such as violence against women. They discuss the structure of the judiciary and path to higher office in member states and note that only Austria and Sweden is there currently a specific positive action policy in favor of women in the judiciary (although Ireland has made a special effort to achieve a better male/female ratio). The effect of these policies and Ireland and Austria’s appointment of women to the European Court of Justice merit further scrutiny. Their interviews reveal criticism of number of years of service as a criterion of promotion as well as criticism of the objectivity of merit-based criteria as utilized as a whole. The variation among the number of women judges in member states was intriguing--the gaps between the number of women lawyers, women in member state courts, and women on European courts unexplained. Public prosecutors were the most vocal about barriers to achievement. As was the case with the gender bias taskforces in the United States, the surveys revealed that women judges were more likely to observe barriers to women’s advancement than men judges. It will be interesting to see what, if anything, the Commission, Council, and member states do with the recommendations of the report, including the calls for a public education campaign and discussion groups within the judiciary. The founding of the European Lawyers Lobby at a Congress in Germany in March suggests that for the first time, sustained outside pressure may be brought to bear on this issue. And the attention of Cherie Booth (who is married to Prime Minister Tony Blair) to the American Bar Association’s conference in London in July bode well. Quoting Lyndon Johnson who said it was not enough to open the gates of opportunity if all citizens did not have the means to walk through those gates, Booth a barrister, Queens Counsel, and part-time judge criticized the costs of legal training which render it open only to a few and called the figures for the number of women judges "discouraging." She called for breaking down assumptions and stereotypes that a lawyer is a white middle-class male and said that if the higher ranks of lawyers and judges did not become more representative of the community, public confidence in the law and justice system would not be maintained (Guardian July 20, 2000).

III. Why 1999-2000?

Why have European feminists not targeted the composition of the European Court of Justice before now? Why is it that member states were so slow to appoint women to the bench? Although her appointment merits further investigation, I see no evidence that the appointment of Rozès had anything to do with feminism. In so far as I can tell from interviews, the French regard serving on French, not EC, courts as the highest legal achievement. With the exception of its legendary advocate general Maurice Le Grange, France tend to send mid-career jurists who serve their time and go home. Appointment to the ECJ is not the great legal prize. I see no evidence that France appointed Rozès in any part because she was a woman. She was an accomplished jurist who had distinguished herself. Nor is there any evidence of any organized effort on her behalf or for the appointment of a woman in France or in the European Union. So, in her case, I would argue, the French appointment just happened, for a couple of years, to be a woman.

Many factors kept gender off the agenda prior to 1999-2000. As a general rule, feminists in Europe have been even more ambivalent about engagement with mainstream political institutions than feminists in the United States. Many eschew mainstream party and government service in favor of minor parties, trade unions, or separate women’s organizations (Lovenduski and Randall: Hellman; Kramer 2000). Those feminist lawyers who have devoted themselves to social change within the European Union have concentrated their efforts on case law and legislation with some success, establishing a network of equality experts, producing research reports, and monitoring case law. And the Court has been, relatively speaking, progressive. Although recently the Court overturned positive action in Germany, and could have gone further in a number of its rulings, compared to most national courts, the ECJ has championed the cause of women’s equality.

The pipeline or pool argument is not a satisfactory explanation. Women have not been entering the legal profession in Europe more slowly or significantly later than in the United States, so the pool argument alone cannot explain the variation. While women have entered the legal profession in Europe, they may not have penetrated the inner circles from which prestigious judicial appointments are made. For example, women in the United Kingdom may be professors or Queen’s Counsel but not have served as the Treasury "devil." Ireland has always sent one of its top three people--either the Attorney General, Chief Justice of the Supreme Court, or other senior justice on the Supreme Court. The first woman ECJ judge, Fidelma Macken was a barrister, professor, and "only" a high court judge. Qualified women abound, but, if member states set as the criterion cabinet member and best friend to the prime minister, rather than competent jurist, fewer women may have had the "qualifications" to be appointed. In the United States, similar arguments about qualifications emerged with President Reagan’s appointment of Sandra Day O’Connor. When O’Connor graduated from Stanford Law School in the 1950s, no large firms hired women lawyers. Yet the American Bar Association rated prospective appointments as merely "qualified" rather than "well qualified" or "exceptionally well qualified" if they did not have 15 years of legal practice and "substantial" federal trial practice (Cook 1987, 13).

One of the things American feminists quickly learned in the 1970s is that they were better served by a process of judicial selection that was open and transparent than one that was secret and controlled by senators or the bar association. In each member state, the process is informal and shrouded in mystery. Moreover, we know from studying electoral and appointing systems comparatively that, when there is only one slot to be filled at a time, it is very likely to be from the dominant group. When several positions are being filled simultaneously, appointers often more likely to look for balance and representativeness. That is to say, if parties are putting one candidate forward for an legislative seat, it is likely to be a man. But if they are in a proportional representation system and electing five, they make seek a more balanced case. So, we could argue, that if the Council ever took back the prerogative the Treaty gives it and did not delegate the appointment decision to each member state to choose one at a time, we might expect to see more women appointed to the Court.

I have already argued that, relative to the United States, courts in Europe are less likely to be seen as political institutions. As a result, factors other than objective legal merit are submerged in the few discussions that exist. The European Court of Justice has a very low profile and little attention is paid to most of its judgments, let along who is doing the judging. As a general rule, such factors work in favor of women--often there is an inverse relationship with the power and prestige of a body and the number of women in it. But in the case of the ECJ, I suspect what has occurred is that male-dominated national legal hierarchies have remained undisturbed. Lastly, I would just add to the garbage can of variables that explain the lack of priority given to integrating the ECJ prior to 1999, is the nature of judging itself. I would hypothesize that judging at higher levels is somewhat of a final frontier, somewhat akin to considering women as commander in chief, although, paradoxically, it is one where there is little public awareness of the magnitude of the powers. It is no accident that allowing states to exclude women from juries was one of the last sex-based classifications to be struck down in the United States (Kerber). Women sitting in judgment--particularly judgment of men, like women commanding troops, has to be one of the last frontiers of integration, perhaps just behind electing a woman as pope.

IV. Judges and Representatives

Why does it matter who judges are? Why is an all-male bench unacceptable? Should courts be representative? Whom do judges represent? Should representativeness be more of a factor in the appointment of judges to supranational or international courts than for national courts? Clearly, if judges are representatives, the nature of that representation is very different from legislators. Rather than taking instructions from constituents, or at least acting on their interests and bargaining among them so as to ensure re-election, the judicial role requires judges to be independent from the population. Judges are not delegates. In a democratic system, judges are to decide cases according to law, not popular opinion, governmental instruction, or even their own policy preferences.

Yet once judging is recognized to be at least in part making choices of public policy rather than applying technical legal rules, less justification exists for allowing only a narrow segment of the legal community to serve, rather than also those who bring different kinds of expertise to public policy--political or economic rather than merely legal, for example, and leads to demands for greater public accountability in judicial selection. In fact, the more one questions whether what the U.S. Supreme Court, the French Constitutional Court, the German Constitutional Court, the British House of Lords, or the European Court of Justice are doing is different from what legislatures do, the more one calls into question the legitimacy of transferring this power to judges at all. Member states of the EU differ in how they think about this question. Britain is no doubt the extreme in its narrow role for courts, its commitment to the discourse of legal formalism and parliamentary sovereignty, and in the small number of people eligible to be judges at higher levels (Griffith 1981). In other member states, judges are career civil servants, although members of constitutional courts are often drawn from a wider pool and serve shorter, fixed terms. Appointments to the European Court of Justice have included professors, judges, and politicians. The recognition of the powerful policy making role of the European Court of Justice has led member states to call not for greater public participation in judicial selection, but for curtailing the role of the Court as a whole. This subject was discussed in the briefing papers for the 1996 Intergovernmental Conference. For good or for ill, however, despite periodic contractions and expansions, it seems likely that across the world, courts will be called on to assume greater rather than lesser roles in the decision of important political matters. This is true in the newly independent states of the Soviet Union, in South Africa, and in emerging supranational courts. Thus who sits on those courts and how we decide who sits will only become more important over time.

In thinking about whether judges are representatives, it is worth delving into the concept of representation itself. Pitkin distinguishes two different meanings of representation, standing for and acting for. Legislators are clearly engaged in the latter activity (although they sometimes stand for their constituents as well). Perry, in her study, A "Representative" Supreme Court?: the Impact of Race, Religion, and Gender on Appointments, immediately argues that the only part of the concept of representativeness that would apply to courts would be standing for, since acting for would be in conflict with the idea of judicial independence (1991, 10). Perry goes on to posit a dichotomy between appointments based on merit and appointments based on representativeness. Before I call into question her dismissal of the acting for meaning of representation (and argue that her dichotomy is a false one), I would like to argue that representativeness and non-merit qualifications (assuming for the moment that we can identify what merit is in this context) have always been factors in judicial appointments, particularly judicial appointments of constitutional, international, and supranational courts.

The fact is that even if judges are not representatives in the sense of delegates--taking instructions from governments or constituents, the representativeness of courts has always been an issue--without it, courts lack legitimacy. The question is merely what factors need representation? Geography and political entity (region, state, and nation) have always been central--particularly for federal, international, and supranational courts. For 100 years, the U.S. Supreme Court was delicately balanced between North and South until the South seceded and civil war broke out. Now there is no longer one (or four) Southern "seats" on the U.S. Supreme Court, but geography is still a factor. Most recently, presidents have felt compelled to appoint justices from the Western states (Rehnquist, O’Connor, Kennedy). The Treaties establishing the European Court of Justice merely require the Council to appoint members with the common accord of member states. It is convention that has dictated that there be one judge from each member state, and that the Council merely rubber stamp whomever member states propose. As the European Union grows, the system may become unworkable, as the Court’s report for the 1996 Intergovernmental Conference points out (paragraph 16). The political consequences and the problem of legitimacy become apparent when one considers whether Ireland would accept a decision saying it had to allow the advertizement of abortion services in London if no Irish judge sat on the case. Or whether Denmark would accept that it had illegally restricted contractors on a bridge to Danish contractors if the Danish judge had not been president of the Court issuing the ruling. Or whether the United Kingdom would accept that the Equal Treatment Directive did indeed mean that employers could not fire pregnant workers if a former member of its own national Employment Appeal Tribunal had not sat on the case. Ensuring the compliance of national courts and governments has been difficult even with a sitting member from that country who can explain and defend the Court’s rulings have participated in the cases.

The Court has already begun to face the problem that enlargement will exacerbate as it hears more cases by "chambers" that is panels of three or five judges rather than the full Court. If the Court did not subdivide, there is no way it could manage its caseload. Yet members of the Court have already recognized that it is possible that judges from the smaller member states could in effect be making rulings binding the larger member states.

This concern led former president of the Court, Mackenzie Stuart to steer away from the idea that judges represent their countries at all:

Nation, then, becomes a proxy for "legal thinking." The argument is that the different members of the Court represent the different legal systems of the European Union. However, as Advocate General Jacobs has pointed out, merely having one judge from each member state is not sufficient to represent the legal diversity of the Community (Jacobs 1980, 11). As just one example, in the United Kingdom Scotland and England have very different legal systems, yet the United Kingdom has only one judge on the Court.

The confluence of geography and legal system have been paramount in appointments to the federal circuit courts in the United States and, at times, a sort of quota system has emerged, just as there once was a quota system between North and South on the U.S. Supreme Court. President Carter’s files are bulging with the letters of senators who vigorously protested when the Ninth Circuit Court of Appeals, for example, did not include any judges from Utah. They appealed to the importance that both the people of Utah need a representative to that Court for its rulings to be perceived as legitimate and that the court of appeals requires the input of someone well-versed in Utah’s laws, precedents, and legal culture. Thus, in the United States, arguments about the representativenes of courts are familiar and legitimate. And certainly in the European Union, as is no doubt the case for all international and supranational bodies, careful attention must always be paid to national and geographical balance. Germans cannot hold all the top posts, no matter how well qualified they are.

A third factor long recognized as important for the representativeness of courts has been political party. In the early days of the American Republic, Federalists packed the bench and used judicial power to thwart the plans of Jeffersonian democrats. President Roosevelt first sought to enlarge the Court to overcome its objections to the New Deal. Later, he felt obliged to appoint a Republican so that they entire Supreme Court would not be composed of Democrats. Each member state makes its own arrangement as to party and appointment to the European Court of Justice. In Germany, for example, the appointments alternate between the party and party affiliation is an important qualification for appointment.

Beyond non-merit factors that are not about representativeness are the obvious ones of friendship, political connections, and political ideology. These factors have clearly determined many an appointment to the U.S. Supreme Court as well as the European Court of Justice. Although it is difficult to tell, from my interviews and examination of judicial appointments, member states do not appear to be "vetting" their appointments for their positions on specific matters of EC law, although there may be some inquiring as to where they stand on the Euroskeptic/Euroenthusiast continuum. There appears to be little of the overt politicization that has occurred in appointments to the U.S. Supreme Court.

I believe the concept of merit has some content. I think it is a good idea, for example that judges on the European Court of Justice be well versed in European Community law, be fluent in French, have astute legal minds, and have strong research and writing skills. But once past this threshold, I do not think merit should or does determine who gets appointed. Representativeness, then, is not some horrible deviation from the ideal or practice of strict merit appointments. The question then becomes what factors merit representation and what kind of representation are we discussing. Geography (nation, region), legal system, and party have long been recognized as legitimately relevant representative factors to be taken into consideration in appointment to the highest constitutional courts.

Pitkin’s exegesis is helpful once again. Pitkin actually distinguishes two kinds of standing for representation (the non-acting for kind), descriptive representation and symbolic representation. Descriptive representation is like a map, a miniature replica of the whole for a specific purpose. President Clinton’s injunction that he wanted the government to look like America comes to mind here. Of course, as Pitkin is quick to point out, to know what features to excerpt for the map, one needs to know the map’s purpose--is it for rock climbing? Or motoring? Or for bridge building? Representation in this sense is not mirroring, but selecting, so we are back to the question, which features merit representation? Why must the European Court of Justice have a Spanish and a Finnish judge, but not a Basque judge and a majority of women judges? Pitkin quickly abandons that this descriptive representation is very helpful for political purposes. For legislators, one usually thinks of representatives as not merely standing for constituents but acting for them, so looking like them may be somewhat important, but it is insufficient.

But feminists, and those contemplating courts (which Pitkin does not do) should not be so quick to dismiss the idea of descriptive representation. The framing exercise feminists are undertaking is called domain expansion. Feminists would argue that judgments from an all-male European Court of Justice are illegitimate, or risk having their legitimacy called into question, just as judgments that emanate from a Court with no British members would be called into question in the United Kingdom. For Pitkin, descriptive representation is part of standing for not acting for. So, to make this point, one need not argue that their is a distinctive position or behavior that comes from being a women as opposed to a man, or a Scottish judge rather than a Dutch judge. The question of legitimacy arises from their mere presence. This idea is very familiar to members of the British Labour Party or working class who do not see members of their group reflected on the bench (although they more often say that English judges are acting on their class interests [Griffith]). Pitkin argues that advocacy of descriptive representation comes from those who see parliaments as mere arenas for talking and raising issues rather than governing. Those talking shops, then, must be microcosms of the nation to perform their voicing functions. I agree with Pitkin that from a political representation point of view, this conception is insufficient. But that does not mean that representation is only relevant in the acting for sense.

Pitkin’s second sense of descriptive representation is symbolic. Here the metaphor is the fish for Christ or the flag for the United States. The symbol does not resemble, as in the sense of a miniature, a map, or a painting, but represents because a group of believers attaches to the object an affective meaning. I would argue that this is a critical way that gender should be considered an important factor in representation, but is oft overlooked. Usually, to say that something is symbolic is to diminish--to say that it is merely symbolic, that it is token, more apparent than real. a symbolic commitment to equality in an action plan, for example, may sometimes be a substitute for taking action. Following Pitkin, I would use symbolic in a different sense. I would argue that the presence of women on bench is important, not because of what they do or don’t do (I’ll discuss representation as an activity momentarily) but because of what they stand for. In part, what they stand for is an empirical question and it varies. To go back to the fish and the flag metaphors, we need to talk to the group of believers and patriots, in this case, women and feminists. The appointment of Rosalie Wahl to the Minnesota Supreme Court may have meant something different to the women of Minnesota than the appointment of Rose Bird in California or the appointment of Sandra Day O’Connor to the U.S. Supreme Court. As a comparativist, I want to explore the different symbolic meanings of the appointment of women to the bench at the European Court of Justice, the British House of Lords, and U.S. federal and state supreme courts. But for now, I would argue that the gender representation should be a factor in the appointment of members to the European Court of Justice for the following symbolic reasons.

What does it mean when France appoints Simone Rozès, when Ireland appoints Fidelma Macken, when Germany appoints and Austria appoints Christine Stix-Hackl? Actually, the President of the Court gives us one meaning when he suggests the appointment of Rozès means that the principle of equal treatment has been observed (1982, 76). While feminists might dispute somewhat his sanguine portrait as an accurate description of women’s legal chances, the value to them is somewhat the same. Madame Rozès stands for women less in the sense of representing all of them in way the Danish judge represents all Danes, but her appointment means much more. It means that judging and the legal field is not a male preserve. It means that there is no legal job to which girls and women cannot aspire. It means that women do not lack the essential traits to rise to the top of the legal profession: reason, commitment, wisdom. It may also mean other things to social movements. It may mean that feminism has arrived and women have political clout. It may mean a turning point for women in the legal profession. It may be a way to "jump start" other feminist initiatives. It may provide the crucial factor of hope, so essential for mobilizing (McCann). Finally, it may, depending on the context, reinforce the perception that judicial appointments are decided by merit, by showing that gender is not a barrier--meritorious women, women who acquire the requisite legal qualifications, will rise irrespective of their gender.

Despite Perry’s dismissal of Pitkin’s sense of representation as "acting for," this is precisely the sense of representation that has dominated most debates about women on the bench. Advocates face a dilemma, in order to show why gender must be a factor--why women must be appointed to the judiciary--they must say why. And that inquiry almost always devolves into a discussion of women’s difference, a discussion loaded with perils as I pointed out earlier in the paper. The two biggest dangers are first, that such arguments undermine the entire thrust of the last century of arguments for integration of women into the legal professions where feminists argued that women were as capable of reason as men. The second danger is that asserted differences between men and women get reified, essentialized and, ultimately, rebound against women as a group. While feminists should simply note the dangers that arguments for difference ultimately be used to disadvantage us (as, I would argue, any argument can and has been), the concern about how to portray women’s difference is worth considering.

Much of the strand of the "different voice" research on women judges has drawn upon the work of Carol Gilligan. One version of Gilligan, imported into the judging arena, would argue that women judges employ a moral calculus of justice more concerned with the connection of relationships rather than a hierarchy of abstract principles. The employ an ethics of care. Another variant of this argument is that they are more rooted in social context than in abstract legal discourse. This is a contemporary variant of the old argument that women are more compassionate, merciful, and caring i.e. "soft" against the cold dispassionate legal rules and principles of men. There are many problems with this line of argumentation, a principal one being that social scientists have found little, if any evidence of such a different voice in women judges on the bench, and women judges (for the most part) vociferously deny they employ different canons of legal reasoning than men.

Although I would argue this line of argumentation has been both discredited and is counterproductive, two lines of argumentation have been effective. Elaine Martin conducted an interesting experiment where she compared judges who self-identified as feminists on a range of issues. She then compared their responses on hypothetical cases by feminist/non-feminist, men and women. Martin shows that both gender and feminism are factors that differentiate judges, but that neither is a simply dichotomy and that it depends on the issue. The second line of argument, along with Martin’s, that I would argue is useful to this discussion is talking about the value of the experiences judges bring to the bench. Too often, gender is used as a proxy for a whole range of experiences, most often, motherhood, but also discrimination. One can look at a multitude of opinion polls to demonstrate that women share very few, if any, common experiences, and even when they share experiences, they do not attach the same meaning to them. Not all women who faced unwanted pregnancy, for example, are advocates of abortion and family planning. So, I would argue, feminists should promote the distinctive perspective women bring to the bench with caution.

I would argue that the experiences men bring to the bench are important, and we should evaluate them in addition to their legal abilities. How varied have been their life experiences? Have they made a payroll? Defended the indigent? Cared for sick loved ones? Navigated the health care system with a debilitating disease? Etc. etc. As we advocate the experiences women bring to the bench, we must take care not to essentialize men and women’s differences. I would argue, for example, that it is more significant that Ninon Coleric has been part of DGV’s Gender Equality Network than that both she and Simone Rozès were women. Both Justices Ginsburg and O’Connor are women, but neither has much in common with single women of color on welfare. And one need only contemplate the cases of Justice Clarence Thomas and Margaret Thatcher to recognize that sharing an identity as well as experiences does not directly translate into fixed outcomes on cases. Still, I would argue, that feminists should argue that it matters who serves on the bench and the experiences those people bring to judging. And it matters, not just in the standing for sense of descriptive representation, or the symbolic standing for representation (although this is far too often overlooked and, I have argued, important) but in Pitkin’s sense of acting for. As judges assume ever more policy making power, they run the risk of being further distances from the experiences of the millions of people whose lives are shaped by the Court’s decisions. Given this awesome power it is important that judges are drawn, not only from the best legal minds of the EU, but from the diversity of experiences within it. I would argue that it is not a big leap from the unquestioned position that someone from the U.K. must be on the Court, to the position that there must be women on the Court. I would argue that it is better to argue for the symbolic importance (in the strong sense) of women on the bench, and the multitude of experiences (plural) women bring to the bench, rather than to fall into the trap of talking about women’s essential difference from men and the distinctive "voice" (singular) they add to the bench.

Conclusions

The aspirations of gender mainstreaming as I understand them are to move beyond tokenism and toward a genuine integration of women in all aspects of decision making. Gender mainstreaming calls for moving beyond elimination of the formal barriers to equal employment opportunity and toward challenging implicit male norms that privilege men. Furthermore, it calls for deep reflection on the gender order and so-called gender contracts, not just semantically after policy is made, or not just on the occasional women’s policy instrument, but throughout all policy making. I would argue that the demand for women’s appointment to the bench shares many of these features although as a practical matter, American feminists have not used this term nor have European efforts on gender mainstreaming prioritized appointments to the bench. Scrutinizing the beginnings of a call for gender mainstreaming in the European judiciary reveals that the appointment of women has multiple meanings to feminists in different locations and at different times. Employing Pitkin’s conceptual analysis of representation allows us to reconfigure courts as representative institutions--albeit different kinds of representative institutions from legislatures. As I have shown, feminists are not deviating from established norms of judicial appointments in calling for representativeness to be a factor, merely in extending the argument about include gender along with nation, region, and legal system, as one factor meriting consideration.