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Two blogs ago, I observed that the suitability of women to serve as judges on their countries’ highest courts could effectively to be taken for granted these days. I was perhaps a little optimistic. In a recent post on the UK Constitutional Law Group site (11 April), Kate Malleson points out that, of the 15 judges appointed to the UK’s Supreme Court since its opening in 2009, not one has been a woman. She asks: ‘Is the UK the only OECD country that does not have excellent women lawyers fit for [its] highest court?’

There are many lessons to be drawn from this frankly astonishing record.

First, the obvious. The removal of formal discriminatory barriers guarantees nothing. Ninety-four years ago the British Parliament passed the Sex Disqualification (Removal) Act 1919. It stated:

"A person shall not be disqualified by sex or marriage from the exercise of any public function, or from being appointed to or holding any civil or judicial office or post, or from entering or assuming or carrying on any civil profession or vocation …"

Ninety-four years ago! Decades before the European Convention on Human Rights - itself in operation for the last 60 years - committed its members, including Britain, to non-discrimination based on sex. Although women are no longer disqualified from judicial office in Britain, it almost seems as if they are, at least for the highest level. What is the reason?

Malleson mentions the ‘clone’ theory: male members of appointments committees replicate themselves in the choices they make. In my book, Gender and the Constitution (2008), I give this tendency the clunkier name ‘the endogenous recognition rule’: people recognise merit more easily among those who look like themselves.

Endogenous recognition is surely the cause of compositional inertia in many male-dominated institutions. But, if it were the only reason, similar results could be expected in other comparable parts of the world. As we know from Malleson’s post, however, 33 OECD countries have a better record than Britain on women’s senior judicial appointments. Perhaps, despite the evidence of its long history of gender equality laws, Britain is particularly hidebound by tradition. But there is no reason to believe that it stands alone in the developed world as a bastion of sexism, or that the answer to Malleson’s rhetorical question is genuinely yes.

The second lesson follows from the first. Appointments procedures count. The appointment of a judge of the Supreme Court of the United Kingdom is made on the nomination of a specially convened selection committee, consisting of President and Deputy-President of the Court, and members of the Judicial Appointments Commissions of the UK’s component parts. Many critics have pointed to the ‘closed club’ character of this committee, the dominance of men in its membership, and the opaqueness of the process. Open committee hearings, even broadcasts of deliberations on the internet, some say, should be adopted. Would this help?

In Australia, Justices of the High Court are appointed by the federal Attorney-General, following closed consultation with her or his State counterparts and informal inquiries with various law associations. This procedure, frequently criticised for lack of transparency, has still managed to produce three female Justices in a period when Britain’s equivalent has had none. The American procedure, closed at the presidential nomination stage and open at the Senate confirmation stage, has a similar record. Canada, also with three women currently on the Supreme Court, toyed with transparency for a couple of years and had a parliamentary interview stage, but simple appointment on the Prime Minister’s recommendation remains the default. Opaqueness, it seems, is not necessarily the problem.

There are too many variables to produce a clear conclusion: barriers may lie in the appointments procedure, the gender of office holders and appointments committees, the formal qualifications for eligibility to serve as a judge, and the conditions of appointment, tenure and retirement. Add cultural and sociological ingredients. But my bet is, as Kate Malleson says of ‘the unreconstructed working arrangements of the legal profession and the bench … [and] the wider social context of the gendered division of labour around caring responsibilities', that all of these barriers can be found in countries other than Britain.

The critical point (in any country), I would guess, lies at the informal (and necessarily non-transparent) ‘nomination’ stage: the stage when names are first in circulation, when their collection by the appointing officer or body has just begun. If women are encouraged to indicate their willingness to serve, and if others, proactively, are permitted to encourage them, or to nominate on their behalf, then the self-censorship that is still experienced by even the most qualified and meritorious women may be diminished. As I wrote in my book, ‘[f]or reasons that are both historical and enduring, women who are similarly situated to men … still tend to be more reluctant to promote themselves for potential high-level service.’ This observation, I add, came from Margaret Marshall, first woman Chief Justice of the Judicial Supreme Court of Massachusetts.

Finally, claims for gender diversity should not be confused with claims for ethnic diversity. There are many good reasons for wanting ethnic (and cultural) diversity on official bodies, but the case for women’s appointment should stand on its own. The appointment of a male judge from an ethnic minority should not be treated as a trade-off or offered up as the equivalent of a woman’s appointment. Britain’s feminists should feel free to say this. This, after all, is an issue for women around the world. Women should not balk at asserting their simple majoritarian entitlement to serve, just as men do, on any or all decision-making bodies, without waiting in the queue or being required to present a special case for the difference their appointment would make.