Why fighting structural inequalities requires institutionalizing difference: a response to Nienke Grossman

Abstract

People ask me sometimes, when—when do you think it will be enough? When will there be enough women on the court? And my answer is when there are nine. Justice Ruth Bader Ginsburg, U.S. Supreme Court. Nienke Grossman offers a much needed overview of the statistical patterns behind the substantial underrepresentation of women in international courts benches. As her inquiry reveals, despite the growing proportion of female qualified lawyers, sex representativeness has hardly improved in recent years. On the contrary, in the absence of special requirements in courts’ statutes or judicial selection procedures, the percentage of women judges has actually stagnated or even declined in some cases. Such acute sex imbalance cannot be attributed to the (contingent) fact that not enough qualified women are available for such highly prestigious positions. Grossman persuasively contests the plausibility of this widespread assumption. Not only is the limited-pool argument fallacious, but, as her analysis suggests, part of the problem might actually be that judicial selection procedures lack transparency and are not driven by merit. Instead, nominations of international judges are often used “to reward political loyalty or to advance political agendas”; this practice seriously impinges on the chances of women to be appointed as international judges, as politics (both domestic and international) remains very much a male-dominated sphere.