Topic for Assignment: Representation of women in judicial positions and the impact of their presence in the Judicial system historically
Secondary Source: Maccorquodale, Patricia, and Gary Jensen. 1993. “WOMEN IN THE LAW: Partners or Tokens?.” Gender & Society 7, no. 4: 582-593. America: History and Life with Full Text, EBSCOhost (accessed November 19, 2016).
Throughout my blog posts regarding women and the judiciary, the topic of tokenism has been brought up multiple times by various authors and in various historical instances. But what is it and is there concrete research that proves its existence?
In their research article titled, “Women in the Law: Partners or Tokens?”, Patricia Maccorquodale and Gary Jensen stated: “Historically, as women enter new occupations, there are problems of adjustment as those already employed accept, accommodate, tolerate, or oppose the entrance of new categories of workers” (the story of Lavinia Goodell is a perfect example the opposition that many women have faced upon breaching the historically and intensely masculine American judicial institution). Barbara Palmer (cited in two other posts) also touched on concepts of tokenism in both of her articles and was quick to note that once a woman is appointed to a position in traditionally all-male judicial setting (for example, a state supreme court), it becomes even harder for the women who follow her to become appointed to the same position if she is actively serving in that position (as seen in the story of Florence Allen and how another woman wasn’t appointed to her state supreme court until after Florence had died). In many regards, tokenism within the context of women within the judiciary is when courts appoint a disproportionately small number of women in order to combat claims of sexism and to give the appearance of equality. Maccorquodale and Jensen’s research found that not only are women grossly under-represented in the courts, but that they also face gendered challenges their male counterparts do not or at the hands of their male counterparts through tokenism. Additionally, that the status of women as tokens is often supported by stereotype enforcement, polarization, and visibility issues.
Maccorquodale and Jensen carried out their study in the Pima County Superior Court in Arizona and studied 100 male attorneys and 100 female attorneys. They noted in their article that this was the perfect area to conduct their research since as of 1993 (when the study was conducted), only 15% of practicing attorney’s in this area were female–evidencing just how skewed the gender ratios within the judiciary typically is. For their study, they decided to ask their subjects various questions associated with tokenism that touched on stereotypes (how women are pressured to “play” according to limited stereotypical roles and how this affects their occupational expectations), polarization (when and how differences between tokens [women] and dominants [males] are emphasized and exaggerated), and visibility issues (that since women are few number, their actions often reflect on the all “women” and how non-achievement characteristics [such as appearance] are more important than their performance) in regard to gender in their court district.
In response to questions about tokenism, Maccorquodale and Jensen found that “being a woman can be seen as conflicting with being a lawyer” due to gender stereotypes. To measure this, they asked their subjects questions regarding how they were addressed in the courts, professional respect, and dignity. Upon asking these questions, they found that 20% of the female subjects reported that judges refered to them in gendered terms (such as calling them “sweetie” or “Mrs.”) “generally” or “almost always. In contrast, 61% of the male subjects reported that judges “rarely” or “never spoke to them in gendered terms. Additionally, they found that the stereotyping is also found present in the fact that attorneys are often assumed to be male. Maccorquodale and Jensen studied this by asking subjects whether or not they had ever had their credentials questioned by a judge. 85% of women reported that judges had asked them whether or not they were attorneys, while only 40% of men had reported this occurring during their career. Unsurprisingly, 50% of the men also reported that they felt that “equal respect, dignity, and credibility” was “always” or “almost always” accorded to men and women in comparison to only 4% of the younger women and 16% of the older women in the study who also agreed with this. When asked if women were patronized in the courts, two-thirds of the women agreed while only one -quarter of men agreed.
In regards to measuring perceptions of the polarization of genders in the judicial system, Maccorquodale and Jensen studied how “female tokens are exposed to the dominant male culture and loyalty test through jokes and sexual innuendos”–by which the dominant group separates themselves from their female counterparts and reinforces male solidarity. They found that women reported hearing sexist jokes and remarks mores so than men–usually in social situations rather than meetings or in court (due to consequences that would follow inappropriate workplace behavior). The fact that this occurs the most frequently in social settings is important due to the fact that it is often at social events that lawyers and judges network–suggesting that the dominant group shows hostility towards tokens due to a sense of competition and maintenance of the status quo in regards to the power structure. Additionally, it was found that sexist jokes operate as a loyalty test of sorts to see if a female counterpart can be “one of the boys”. When thinking of this in the historical context, the studies mentioned by Palmer (in my second post) regarding the 1968-1974 metro area courts begin to make sense. It was mentioned by Palmer that during this time period of the study, it was found that women prosecuted in the exact same way that their male-counterparts did–even in cases of rape (this changed over the following decade). Perhaps these initial women in the courts were adhering to the masculine power structure at play in order to secure their positions and to prove that they were “one of the boys” for the sake of better reception in the workplace.
When considering the visibility aspect of tokenism, Maccorquodale and Jensen found that women were more likely to believe that gender mattered in the courtroom. When their subjects were asked: “Do judges appear to give more attention and credibility to the opinions and arguments of male or female counsel in court?”, three-quarters of the male subjects reported that gender makes “no difference”, 38% of women reported that more attention was given to males, and only 6% of males reported that more attention was given to their gender. Even more significant was their finding that none of their subjects believed that more attention and credibility was given to women in the courts. They also measured visibility by asking subjects about their experiences with compliments given for achievement and non-achievement characteristics. Unsurprisingly, women reported getting significantly more compliments from male attorneys that dealt with their appearance than they did regarding their handling of a case or legal reputation. This varied depending on the age of the subject as well, with 40% of the younger female subjects receiving compliments on their appearance. Additionally, none of the younger women reported remembering a time where they were complimented on their legal reputation (suggesting that ageism is prevalent alongside gender in the courts as well).
Overall, Maccorquodale and Jensen found that tokenism is very ingrained in the culture of the judicial system through stereotyping, polarization, and visibility issues. Their study also found that there was an overwhelming gap between men and women in regard to awareness of these issues and perceptions of the seriousness of gender issues within the justice system. Specifically, they found that “…women were more likely than men to report (1) receiving non-achievement compliments and having less credibility in professional settings (heightened visibility); (2) hearing sexist jokes and remarks from judges and attorneys (polarization); and, (3) being patronized, referred to by their first names, and asked whether they are lawyers (stereotyping)”. They also found that outside of the courts and workplace, female judiciary workers often faced criticisms from the public due to beliefs held regarding men being more qualified in court settings. As a result, women are often marginalized by potential clients and were less-likely to be hired for cases other than those involving women and children.
When relating these findings to the historical background of women within the judiciary, it can be better understood why progress has been so slow. Additionally, the stories of the “Metro City” women, Lavinia Goodell, Arabella Mansfield, and Florence Allen become more clear as well. The Metro City women probably did face pressure to adhere to the male power structure and as a result, found it difficult to speak out. In the case of Lavinia Goodell, she was pressured by stereotypes and faced negative reception from some of her male counterparts (Judge Ryan’s behavior in particular becomes better understood as well). In the newspaper reports of Arabella Mansfield’s acceptance to the bar, she was often referred to as the “beauty of the bar” while the significance of her appointment was rarely recognized (an example of female visibility in the courts being reduced to their appearance instead of their accomplishments). Florence Allen’s story also begins to make more sense when the comments President Truman reported from the United States Supreme Court (upon asking if they would be okay with a female justice) are understood within the context of polarization and the desire to maintain the “boys club” that is the judicial system. Additionally, her story also shows and supports Maccorquodale and Jensen’s findings regarding the public’s general wariness over the capabilities of women in the judiciary as well.
Tokenism is alive and well in the justice system today and has played a crucial role regarding the appointment and representation of women in the judiciary throughout history. Although tokenism is ingrained in the justice system, I would say that progress has been made over the past 200 years of female involvement in the judicial institution. One of the best ways to continue to move women’s progress in the courts forward is through studies done that promote awareness of these gender issues. And, in the words of Maccorquodale and Jensen: “While continuing to document the existence and consequences of tokenism, we can strive to eliminate the inequities it causes and make justice more available to all.”