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11 Feminist L. Stud. 1 (2003)

handle is hein.journals/femlst11 and id is 1 raw text is: KATE MALLESON JUSTIFYING GENDER EQUALITY ON THE BENCH: WHY DIFFERENCE WON'T DO ABSTRACT. The case for gender equality on the bench would seem too uncontroversial to require justification. Yet the practical realities of the slow progress of women towards equality of participation both quantitative and qualitative in the judiciary testifies to the continuing need to argue the case for change. To date, the primary rationale for promoting gender equality has been that women will bring a unique contribution to the bench as a result of their different life experiences, values and attitudes. Such arguments derived from difference theory have had a strong appeal since they appear to give legitimacy to the undervalued attributes traditionally associated as feminine while also promoting the merit principle by claiming to improve the quality of justice. However, this article argues that difference theory arguments are theoretically weak, empirically questionable and strategi- cally dangerous. Instead, it argues for the adoption of a rationale for gender equality based on equity and legitimacy; that equal participation of men and women in the justice system is an inherent and essential feature of a democracy without which the judiciary will lose public confidence. This approach, though less immediately appealing, is ultimately more sound. KEY WORDS: equality in the judiciary, gender difference, judicial confidence, judicial impartiality, women judges It is now so widely accepted that the goal of gender equality in public life generally, and the judiciary specifically, is an unqualified good, that to ask the question why this is necessary seems redundant if not perverse. Nevertheless, the question is important for three reasons. First, because the rationale for equality needs to be theoretically sound and empirically grounded if it is to provide the basis for a successful strategy for change. This is particularly so if change can only be achieved through proactive reform. Second, the answer determines what form of actions may legiti- mately be pursued to achieve the goal of gender equality. Whether, for example, it would ever be acceptable to appoint a less qualified woman over a more qualified man. Third, it determines what level of participation by women is necessary; whether proportionate representation is required or whether some lesser (or indeed greater) participation is needed. To date, two main rationales have been put forward as the justification for equality in the judiciary. The first is that changing the gender balance on the bench will improve the quality of justice dispensed because women bring something different to the adjudication process. The second is that A Feminist Legal Studies 11: 1-24, 2003. O © 2003 Kluwer Academic Publishers. Printed in the Netherlands.

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