Asked, when will there be enough women on the US Supreme Court, the late Justice Ruth Bader Ginsburg shot back "when there are nine." While some people were shocked, she stated: "there's been nine men, and nobody's ever raised a question about that."
With the next two High Court vacancies due when Justice Geoffrey Nettle retires in December 2020 and Justice Virginia Bell in March 2021, Ginsburg's unforgettable point presents the Australian government with the ripe opportunity to appoint two women to our top court.
Such a bold move would avoid locking in the norm of a court made up of a majority of men as has been the case for all of its history since 1903, indeed it was an all-male court until Justice Gaudron's appointment in 1987. Latterly the numbers have evened up with a four men and three women split. But now is the government's opportunity to enable a court of four women and three men. It would be a powerful statement that a court so composed will not in future be an unusual scenario and that the status quo is not to keep affirming men in the majority. Swings and roundabouts are acceptable but not when men always fill the majority of places.
Looking at who is available to fill the spots, tired claims of a dearth of women and talent have long fallen into desuetude (that quaint legal word). Around the country, the traditional selection pool is teeming with talent. There are now 14 women on the Federal Court of Australia, well over 50 women on the supreme courts of states and territories and two women solicitors-general who appear in the High Court (Kristen Walker in Victoria and Sonia Brownhill in the Northern Territory, leaving that role to take her position on NT Supreme Court, beginning in November). Within these rich ranks are eminent potential appointees trailing all the baubles traditionally cited on appointment, Supreme Court prize winners, graduates from Cambridge and Oxford, former presidents of bar associations and fellows of the Australian Academy of Law. Indeed, if the government is minded to look at the way other superior courts in equivalent democratic jurisdictions draw upon expertise, Federal Court Justice Sarah Derrington, current President of the Australian Law Reform Commission was the Dean of Law at the University of Queensland. Justice Elena Kagan on the US Supreme Court had been a Dean of Harvard before her move to the first female US Solicitor General and then Supreme Court Justice. Indeed, another Australian academic, Professor Hilary Charlesworth has sat as an ad hoc Judge of the International Court of Justice. She is a beacon example of the breadth and depth that could be used to enhance the life experiences represented on superior courts.
Choosing two women from the many potential women High Court judges is only difficult because of the vast range of excellent possible selections. For the characteristics wanted in High Court judges include the following: integrity, wisdom, intellect and judgment. These characteristics are held by all people (although because men have traditionally exercised public positions of power, there is a subtle implication that men better reflect these characteristics).
Indeed, Western Australian Supreme Court Justice Janine Pritchard, one of the 50 plus State Supreme Court judges available for selection relayed at her swearing in ceremony how her son was asked by his tennis coach what his parents did:
"Mummy is a judge and Daddy is a lawyer," he said, only to be told: "No, I think you must be wrong. Daddy's the judge and Mummy's the lawyer."
Four women on a High Court of seven would go a great way towards breaking these stereotypical assumptions.
The merit argument is often used to block such suggestions and to maintain the affirmative action historically accorded to men. A true commitment to merit would demand two of the pool of the outstanding women be selected to add to the intellectual capacity of the court and also to recognize the role of the High Court in a democratic society - to interpret the law (as that is ultimately what judges are doing) informed by the lived experience of law's application to all groups in society.
For merit is complicated; people who determine merit often presume that it is an objective reality. At the moment, a predominantly male conservative cabinet decides who the best person is for the job. Australia's century-old experience of judicial selection has shown that when cabinets gaze at the available pool of potential High Court appointees, they traditionally have seen reflections of themselves, and what they understand as depictions of merit. The slow move away from a full bench of white men is a good start, and we are now at the point where a very large cohort of outstanding diverse women are able to serve at the highest level on the basis of their skills, ability and talent.
Gender is relevant to being a High Court justice as an extension of the notion of what is meant by judicial office. Judicial officers must reflect the best aspects of the community, responsiveness to the community's needs, including life experiences reflecting those of the community. This is because law is not just a scientific tool used to determine answers - it is full of values, and values are developed through life experience. In exercising her judgment, her legal skills, her ability and her talent, a woman's experience of living her life as a woman impacts upon the way she makes decisions. It is not the only aspect to her life experience, but it is an important one, and essential to her exercise of judicial office.
In Australia, the diversity of the community needs to be reflected in the High Court of Australia, and within the pool of men and women other matters must also be considered including the geographic base of the judge and our multicultural society. While some may continue to argue that paying attention to gender and other personal attributes is an unnecessary exercise of affirmative action, it is difficult to dispute that we have had a system of affirmative action that has favoured white men. Have men really merited this outcome or did the system, by unspoken assumption, look after them?
A High Court made up of four women and three men would signal equality coming of age. Two more women should be appointed to join Chief Justice Susan Kiefel and Justice Michelle Gordon. This may then break the last vestiges of the High Court being considered as a male stronghold and allow all people throughout the country to truly believe they have equal access to the top legal judicial positions in the land.
- Kim Rubenstein is co-director of the 50/50 by 2030 Foundation and a professor of law at the University of Canberra.