Document 17: Judith Resnik, Excerpt from "Asking About Gender in Courts," Signs, 21 (Summer 1996), pp. 952-60.
In "Asking about Gender in Courts," Judith Resnik discusses the issue of gender bias in the courts, and gender bias task forces, the primary method for gathering information about discrimination against women in the justice system. Resnik places the VAWA within the context of new Congressional interest in federal court studies on gender. In this article, Resnik tackles such questions as, "What issues dominate gender task force reports?" and "How is the topic of 'gender bias' constructed?" Resnik views the many activities associated with task forces as an occasion to explore relationships among "feminist theory, feminist practice, and one set of legal institutions--the courts."
Asking about Gender in Courts
WOMEN IN THE UNITED STATES have long understood that their gender has affected, and sometimes defined, their interactions with legal institutions. In the 1960s and 1970s, as women's rights litigators fought for equality, they found some of the pain of discrimination in the very places to which they brought claims--the courts. Local and national efforts by women's groups coalesced in 1980, when two fledgling organizations (the National Organization for Women's Legal Defense and Education Fund, begun in 1970, and the National Association of Women Judges, founded in 1979) created another new entity--the National Judicial Education Program to Promote Equality of Women and Men in the Courts; its purpose was to educate judges.
"Gender bias in the courts" became the shorthand attached to the issue, and gender bias task forces became the primary method for gathering information specific to a particular court system about injuries suffered by women within the justice system. In contrast to women's rights litigation aimed at ensuring fair treatment in areas such as housing, education, or family law, task forces examined the justice system itself. They questioned whether courts provide equal treatment as promised to identifiable categories of individuals. As explained by a founding document of the gender bias task force movement, "As long as judges adhere to gender based myths, biases and stereotypes, the intent of the laws can be compromised or subverted through the exercise of judicial discretion."
Seeking licensure from the courts, success came in 1982 when Chief Justice Robert N. Wilentz of the New Jersey Supreme Court commissioned the first gender bias task force. Within the decade, task forces devoted to race and ethnicity followed, as did national recognition. In 1985, New Jersey was once again first in creating a "Minority Concerns" task force. In 1988, the organizers of efforts to study gender, race, and ethnicity obtained important validation from the chief justices of all state courts, who adopted a resolution calling for study of gender, racial, and ethnic bias in the courts. In 1989, judges and lawyers of color formed the National Consortium of Task Forces and Commissions on Racial and Ethnic Bias in the Courts to generate nationwide study and education.
From 1982 until the early 1990s, task forces on bias in the courts were exclusively the domain of state courts. During the second decade of task force work, lawyers and judges succeeded in obtaining federal court attention. In the summer of 1992, the Ninth Circuit (encompassing federal trial and appellate courts in nine western states) became the first within the federal system to issue a report on the effects of gender throughout courts. Soon thereafter, the Judical Conference of the United States (the policy-making body of the federal judiciary) voiced support for studies of bias, and other federal circuits began such work. In 1994, a special committee of the federal courts in the District of Columbia's Circuit issued draft reports, one on gender and one on race and ethnicity. Congressional encouragement for federal courts studies came in 1994, when that Congress passed the Violence Against Women Act. In the spring of 1995, the Federal Judicial Center (the national education arm of the federal courts) published a research guide for federal gender task forces.
As of this writing, more than thirty jurisdictions have reports on gender, and more than ten on race and ethnicity. National conferences have been held on both topics, and in seven of the thirteen federal circuits, work has begun on projects considering gender and/or race and ethnicity. Hostility toward these projects has also emerged, as a few vocal federal judges have mounted a sustained attack. In the spring of 1995, at the request of Senator Charles E. Grassley, the General Accounting Office launched an investigation into federal funds spent on task forces. In September of 1995, Senators Grassley, Phil Gramm, and Orrin Hatch recommended on the congressional record that no federal funds be spent on such task forces. In December, nine democratic senators and one member of the House of Representatives countered by voicing on the congressional record their support for such projects.
The many activities associated with task forces provide an occasion to explore relationships among feminst theory, feminist practice, and one set of legal institutions--the courts. My purpose here is not to detail the findings of task forces but to ask about the structure of their inquires. What is the import, for law and for feminism, of such work? How do task forces fit within U.S. legal traditions? How is the topic of "gender bias" constructed? What issues dominate gender task force reports, and what concerns are at the periphery?
Other issues emerge from considering the task forces from the vantage point of U.S. legal institutions, in which two sets of courts, state, and federal, have distinctive mandates. What are feminists to make of the differing receptions of task forces by the state and the federal courts? What variations emerge when the jurisdictional framework switches from state to federal courts?
Yet other questions relate to contemporary feminst concerns about essentialism or categoricalism. Who are the "women" and "men" discussed in the reports? Further, as the brief history above makes plain, two strands of the movement exist, one denominated "gender" and the other "race/ethnicity." What are feminists to make of these dual tracks? How and why do task forces on gender overlap with and/or remain distinct from efforts called racial, ethnic, or minority?
Finally, many participants in task forces hope that these projects will be feminist; what has transpired in turn provides material for feminism. Law constantly works at both descriptive and prescriptive levels, responding to actual circumstances, making rules of conduct while simultaneously incorporating, acting on, or aspiring to alter normative assumptions. What then happens in this feminst encounter with law? What are the links and disjunctures among feminst theoretical concerns and task forces? How might feminst activists and theorists hope to influence this work, and what lessons can feminists draw from participants engaged in the daily operations of task forces?
The task force movement: Question asked and answered
Within the context of law in the United States, aspects of task forces on bias in the courts are radical. These enterprises are launched officially by courts themselves, as chief judges and other senior members of the legal profession break through the cheerful constitutional story--"We the People"--to ask, Does justice discriminate? How? Against whom? In what ways?
Why should such questions be termed "radical"? The conceptual framing from which these task forces depart is exemplified by the U.S. Supreme Court decision of McCleskey v. Kemp. When asked to consider whether Georgia courts had imposed the death sentence in a generally radically discriminatory fashion, the Supreme Court declined the broad inquiry. While prepared to look at a particular person's claim that he or she had been sentenced to death because of racial or facial prejudice, the Court refused to entertain a claim that the judical adminstration of the death penalty--as a whole--violated the Equal Protection Clause. As the majority explained, taking on the general issue of racism in death penalties could prompt exploration of racism in all kinds of sentencing penalties.
In this conclusion lurks a "So what?"--why not consider the general issue of racism throughout the criminal process? The Court's opinion was unembarrassed about its refusal to comprehend such a fundamental challenge. In the words of the Court, "If we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty. Moreover, the claim that his sentence rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups, and even to gender" (McKleskey, 315-17).
Task forces on gender, racial, and ethnic bias do exactly what the Supreme Court declined to do: they ask the forbidden questions and employ the methodologies of quantitative social science specifically rejected by the McCleskey Court. These task forces review an array of topics including the application of substantive legal doctrine, courtroom interactions, the demography of courthouses, and courts' roles as employers. At issue is the relevance of gender, race, and/or ethnicity to court processes and outcomes. The questions include whether court systems do discriminate, resulting in "discrepancies that correlate to membership in minority groups, and even to gender."
The tensions between the McCleskey paradigm and the mandate of task forces are not logical incompatibility but genuine differences in ideology. McCleskey exemplifies the impulse toward an idealized justice, blind to distinctions among litigants. To break away from that paradigm, to entertain questions about patterns either of discrimination or of a perceived lack of impartiality, is radical when compared with the narrowed frame of a case-by-case approach. Not by happenstance do the few vocal critics of task forces invoke what lawyers call "the rule of law" and the legal doctrine of separation of powers to claim that courts are only supposed to decide cases one by one. Ongoing efforts to halt task forces, pressed by members of the Independent Women's Forum and specific federal judges (supported by at least one scholar who himself is a participant in the so-called culture wars), are a part of these critics' opposition to affirmative action and to other social programs using gender and/or racial categories. As with the ongoing political battles in these arenas, opponents of task forces argue that bad research and shaky conclusions create, rather than respond to, distinctions (Blair 1994a, 1994b; Bracher 1994; Torry 1994; Silberman 1995; Thernstrom 1995a, 1995b).
These task force projects are radical (again, in some respects, within the context of law) not only in their inquiry but also in their frequent and consistent answer: that despite emblems of equal justice under law, courts are perceived not always as embodying fairness but sometimes as venues of discrimination. The published results of these task force studies provide graphs, tables, charts, and testimonial evidence, containing serious charges about aspects of the legal process. From states as disparate as California, Georgia, Kentucky, Maryland, and Minnesota, women seeking redress for "domestic" violence report that they are blamed, accused of provoking their attacks, treated as if their experiences were trivial, or disbelieved. When the focus of the studies is on race and ethnicity, the descriptions are similarly distressing. Findings indicate that people of color are less likely to be released on bail than are whites for similar offenses and more likely to be jailed awaiting sentencing. Moreover, there is evidence of sentencing disparity "that can be attributed only to race in the rate of convictions and the types of sentences" (New York State Judicial Commission on Minorities 1991, 1:43).
The reports detail problems of bias as experienced by litigants, lawyers, court staff, and, on occasion, by judges themselves. Courtroom interactions--on and off the record--are sometimes affected by assumptions based on race, ethnicity, and gender. For example, when asked if a federal judge had questioned their status as lawyers or assumed that they were not lawyers, 1 percent of the white male lawyers responding to a survey of the federal courts within the District of Columbia responded affirmatively, whereas about 10 percent of the white female lawyers and the male lawyers of color said that they had that experience. In contrast, about a third of the women lawyers of color reported that a judge had questioned their status as lawyers. More than twenty jurisdictions report that women as witnesses face hurdles: their credibility is readily questioned, and their claims of injury are undervalued. In addition, language barriers often impede courtroom exchanges between minority and majority participants.
Reports also address the demography of the courthouse. The higher echelons of most judiciaries remain filled with white men. Within the federal system, as of 1993, 90 percent of the life-tenured judicairy was both white and male (District of Columbia Circuit Special Committee on Gender 1995, 13). As of 1991, the percentage of women in the ranks of federal bankruptcy and magistrate judges who have term, rather than life, appointments was about 15 to 18 percent (Gentilli 1994, 20, 24). However, in yet lower echelons of judges in the federal hierarchy (the roughly 1,200 administrative law judges serving in agencies such as the Social Security Administration), women constituted under 8 percent. Thus, the majority of federal judicial officers are men, spawning a visual impression of the maleness of the institutions they populate. But women as workers are not physically absent from federal courthouses. More than 98 percent of the legal secretaries in the federal judical system are women (Adminstrative Office of the U.S. Courts 1990, 14).
In addition to collecting information, bias task forces analyze what they have found. Although coming from different jurisdictions, the overall assessment are parallel. In 1986, the "Report of the New York Task Force on Women in the Courts" concluded that "gender bias against women . . . is a pervasive problem with grave consequences . . . Cultural stereotypes of women's role in marriage and in society daily distort courts' application of substantive law. Women uniquely, disproportionately, and with unacceptable frequency must endure a climate of condescension, indifference, and hostility" (New York Task Force on Women in the Courts 1986-87, 17-18). Five years later, Connecticut's gender report stated, "Women are treated differently from men in the justice system and, because of it, many suffer from unfairness, embarrassment, emotional pain, professional deprivation and economic hardship" (Connecticut Task Force on Gender, Justice, and the Courts 1991, 12). New York's report on minorities found that the "perception [is] that minorities are stripped of their human dignity, their individuality and their identity in their encounters with the court system" (New York Judicial Committee on Women in the Courts 1991, 2:1). Michigan's racial/ethnic issues report of 1989 stated that "there is evidence that bias does occur with disturbing frequency at every level of the legal profession and court system" (Michigan Supreme Court Task Force on Gender Issues in the Courts 1989, 2).
These statements, authorized by the judiciary in its official incarnation and authored by committees that include senior officials of each jurisdiction, make plain that the fears of the majority in McCleskey were well founded. Once courts are willing to consider systemic discrimination, disparities in treatment do appear to coorelate with membership in minority groups and "even" with gender (McCleskey, 316-17). Atop such statements of the problems, many reports recommend revisions in case processing, employment practices, and rules of law. Despite occasional denials of the reports' conclusions as impossible descriptions and implausible accusations made by feminist ideologues (Torry 1994), judicial officials have considered, and some have implemented, notable changes.
In cases involving violence within families, New York revised its procedures to authorize a court to require that a defendant attend educational programs. In 1991, Florida's legislature requried that each three-person judicial nomination committe include "at least one... member of a racial or ethnic minority group or a woman"; in 1994, the legislature mandated that, when making appointments, the governor consider how well current judges reflect the diversity of the population they serve. The states of Florida, New Jersey, New York, and Washington have created standing committees on minority concerns.
In many jurisdictions, sexual harassment policies have been developed; employee orientation, training, and selection processes revised; local rules promulgated to mandate fair treatment; canons of ethics rewritten; legislation enacted; language access programs created; and special programs begun on the problems of victims of violence. Gender, race, and ethnicity have become topics of judicial conferences, of meetings and continuing education programs for lawyers, and of private discussions. A small body of case law now speaks about the impropriety of stereotyping and addressing women lawyers and litigants in demeaning terms and about racial and ethnic slurs (Johnson 1993, 1769-92).
Within little more than a decade, a remarkable shift has occured. Take, for example, two of the goals set forth in the Foundation of Women Judges' 1986 manual on operating gender bias task forces; to "legitimate the problem of gender bias in the courts as worthy of judicial investigation and reform," and to "increase the sensitivity of bench and bar and the public to the incidence and consequences of gender bias in the courts" (5). Those aspirations have surely been met. Task forces have succeeded in licensing thousands of converstions, within the halls of official state power, about the burdens gender places on women. Progress--measured in terms of appointments to the bench, integration of court-appionted committees, programs to educate judges and lawyers about their discriminatory patterns, new procedures for responding to litigants, reorganization of databases, legal rules, and the like--has occurred. As the summary of five years of efforts in New York puts it, "Now, inescapably, gender bias and the concerns of women are on the agenda" (New York Judicial Committee on Women in the Courts 1991, 44; Schafran 1989). Celebration is in order, for a measure of success can fairly be claimed.
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