Balancing the Scales of Justice -achieving a Critical Mass of Women in the New Hampshire Judiciary

• Jurisdiction: New Hampshire,United States
• Citation: Vol. 51 No. 1 Pg. 0028
• Publication year: 2010
• Pages: 0028
• Year: 2010

New Hampshire Bar Journal 2010.

2010 Summer, Pg. 28. BALANCING THE SCALES OF JUSTICE -Achieving a Critical Mass of Women In the New Hampshire judiciary

New Hampshire Bar Journal
Volume 51, No. 1
Summer 2010

BALANCING THE SCALES OF JUSTICE -Achieving a Critical Mass of Women In the New Hampshire judiciary

By Attorney Holly B. Haines(fn1)

With special thanks(fn2) to the Honorable Linda S. Dalianis,(fn3) Honorable Carol Ann Conboy,(fn4) Honorable Gillian L. Abramson,(fn5) Honorable Tina L. Nadeau,(fn6) Honorable Jean Burling, (fn7) Honorable Christina M. O'Neill,(fn8) and Honorable Susan B. Carbon(fn9)for their availability, candor, insight and significant contributions to this article.

I. INTRODUCTION

Numbers matter. Diversity matters. Every ten years the United States government conducts a census of the population to assess societal diversity demographics, including gender. Similarly, every ten years since 1988, the New Hampshire Bar Association has conducted a survey of gender equality in the New Hampshire legal profession. The purpose of these decennial surveys is to highlight the progress of women in the practice of law in New Hampshire and to identify the areas still in need of improvement. Noticeably absent from these surveys are any analyses of gender diversity in the New Hampshire judiciary, of the progress of women being appointed to the New Hampshire judiciary, and of the areas still in need of improvement to increase diversity in the New Hampshire judiciary. This article addresses those issues.

In exploring the issue of the progress of women in the New Hampshire judiciary, I had the distinct honor of interviewing jurists throughout the New Hampshire court system. In deciding whom to interview, I extended invitations to women in the judiciary who had been appointed to the bench full time before the last gender equality survey in 1998, beginning with the active justices who were interviewed by Lauren Simon Irwin after that survey in 1998.(fn10) There was no intention to omit any woman jurist from these interviews; any omission is solely due to tenure on the active judicial bench, scheduling constraints or an inability of this author to contact them. All of the remarkable women jurists interviewed addressed the barriers they overcame while traveling their individual paths to the bench, their thoughts on the status of women in the judiciary in New Hampshire, and the issues that should be addressed for younger women who seek appointment to the bench in the future. Their insight and candor are imparted later in this article and the conclusions of this author from academic and demographic research do not necessarily reflect the views of any of the jurists interviewed.

In exploring the progress of women in the judiciary by the numbers, I reviewed the gender demographics for the State of New Hampshire; and statistics on the active-status members of the New Hampshire Bar Association; the graduates of Pierce Law; the passing applicants for the New Hampshire Bar; and the past thirty years of judicial appointments in New Hampshire. The results of my research showed that the rate and numbers of women being appointed to the bench have been stagnant or in slow decline for the past ten years, and are not reflective of the increasing number of women in the New Hampshire Bar Association or the increasing number of women in the State of New Hampshire.

What accounts for this disparity as society and the New Hampshire Bar Association become increasingly diverse? It is not a lack of women in the applicant pool based on the published numbers. Nor is it that women are less qualified for these positions than men. Indeed, the one question posed in the 2009 Gender Equality Survey about whether men or women were more suited for the bench resulted in an overwhelming response of 92.2 percent that men and women are equally suited for the job of judging.(fn11) Another 5.7 percent of respondents felt that female judges were more qualified than male.(fn12) The judges I interviewed agreed with the majority response, finding that the job of judging transcends gender. So if the answer is not a lack of qualified women for the applicant pool in New Hampshire, what has prevented us from achieving a critical mass of women in the New Hampshire judiciary? Until we answer this question, the scales of justice will never be balanced in New Hampshire and the public can never have complete trust and confidence in a branch of government that is not reflective of the society it serves.

II. THE CRITICAL MASS THEORY

The Honorable Linda S. Dalianis, the first woman justice appointed to both the New Hampshire Superior and Supreme Courts, raised the idea of the critical mass theory applying to the New Hampshire judiciary because she does not think that we will ever "see an equal split of men and women on the bench anywhere, certainly not in New Hampshire and certainly not in [her] lifetime." Justice Dalianis observed that "once there are a few visible women on the bench, public pressure eases and governors no longer feel the need to appoint women to the bench." "It will be a very long time indeed before the split of men and women on the bench will be even." "Now there are a lot more women 'in the pipeline' and, just by virtue of the increasing population, there should be many more women over time. However, you would have to fill the next 40+ judicial vacancies with females to even approach critical mass. That is not likely."

While unlikely, the next question becomes how many women should we expect to be serving on the bench based on the pool of eligible candidates assuming no discrimination? Between 1920 and 1970, the percentage of women in law practice in the United States ranged from 1-5 percent, while the number of women on state trial court benches ranged from 1-10 percent. (fn13) These percentages are fairly consistent and increase appropriately over time. One would assume, because of this, that as the number of eligible women increase in the practice of law, so too would the number of women judges. Unfortunately, the statistics and demographics make this assumption unfounded and belie the common sense and lack of discrimination upon which it is based.

The original critical mass theory derives from nuclear physics and refers to the minimum amount of fissile material required to achieve a sustained nuclear reaction.(fn14) It has been adapted by social and political scientists to refer to the minimum numbers in a social system required to generate sufficient momentum for a group to become self-sustaining and fuel further growth.(fn15) While the numbers required for a minority group such as women to achieve a critical mass are widely debated, the general consensus is that a critical mass is the amount required for meaningful representation to take the minority from a "token" status to an accepted part of the dominant group culture.(fn16) A "token" is merely a symbol, an individual representative of a group, and usually alone. The group dynamics around tokens "create a pressure for them to seek an advantage by disassociating themselves from others of their category and, hence, remain alone."(fn17) Thus, until a critical mass of a minority group is achieved, the minority group is likely to conform its behavior to the larger majority norm. Once a critical mass is achieved, the minority group members will be more visible in their shared experiences, interests, and perspectives and the group as a whole will demonstrate different behavior.(fn18)

In Grutter v. Bollinger, the United States Supreme Court (O'Connor, J.), approvingly discussed the use of the critical mass theory of meaningful representation as a method to attain a diverse student body at the University of Michigan Law School. (fn19) In doing so, the Court observed that the law school sought to achieve a critical mass of minorities to create "the educational benefits that diversity is designed to produce."(fn20) The Grutter Court upheld the use of race as a factor applied in the law school's admission process, finding that the law school had a compelling interest in achieving a diverse student body.(fn21) "[U]niversities, and in particular, law schools, represent the training ground for a large number of our nation's leaders."(fn22)

In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our heterogeneous society must have confidence in the openness and integrity of the educational institutions that provide this training . . . law schools cannot be "effective in isolation from the individuals and institutions with which the law interacts." Sweatt v. Painter, 339 U.S. 629, 634 (1950). . . . Just as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own unique experience of being a racial minority in a society like our own, in which race still matters. The Law School has determined, based on its experience and expertise, that a "critical mass" of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.(fn23)

Achieving a critical mass of women, a historically underrepresented minority, is no less important to fostering true diversity than achieving a critical mass of racial and ethnic minorities. This is especially true in a racially homogeneous state like New Hampshire. Moreover, the critical mass theory should be applied to every institution that touches society, not just to institutions of higher education. Its application is especially important when applied to the institution of the judiciary, which is often considered to be the least visible and most cloistered branch of government and...