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Gender equity on the bench

March 08, 2021

Law School alumnae serving on the bench reflect upon the pivotal 1995 “Women in Judging” conference and continued efforts toward gender equity in judgeships.

The iconic status of Justice Ruth Bader Ginsburg transcended the legal world and extended well into popular culture, leading to hundreds of memorials, memories, and inspiring personal stories about the trailblazing leader in the weeks following her September 18, 2020 death. As part of this year’s International Women’s Day 2021 campaign theme #ChooseToChallenge, one such tribute was shared by Judge Frederica Massiah-Jackson L’74 and includes a photograph of Justice Ginsburg from the “Women in Judging: Transforming the Image of Justice” conference, held in conjunction with the Annenberg Public Policy Center on March 14, 1995.

 

Participants included (from left to right): Linda Bernstein L?74, Norma Levy Shapiro L?51, Sue Le... Participants included (from left to right): Linda Bernstein L’74, Norma Levy Shapiro L’51, Sue Lewis Robinson L’78, Frederica Massiah-Jackson L’74, Carolyn Engel Temin L’58, Phyllis A. Kravitch L’43, Justice Ruth Bader Ginsburg, Justice Sandra Day O'Connor, and Helene Nita White L’78.

The event’s keynote speakers included Ginsburg as well as her colleague at the time, Justice Sandra Day O’Connor, the first woman nominated to the Supreme Court. The distinguished jurists joined a panel of seven Penn Law alumnae who were then serving as federal, state, or administrative law judges. 

“Really that photograph is so important to me,” Massiah-Jackson said. “Someone at the Law School of course took it that day and mailed it to me, and I’ve just kept it on my shelf at work for 25 years because it was such a special day, a special conference, and I was so proud to be there.”

Important themes of the 1995 conference

The conference set out to explore the different paths each woman took to get to the bench, while also examining and discussing exactly “how” women judge. Themes of whether or not women were uniquely qualified to judge or whether or not women exercise and represent authority in fundamentally different ways from men were surprisingly prevalent in a conference happening in the mid-90s.

“Definitely in the 90s there were still questions about what was a woman’s place in judging,” Massiah-Jackson said. “Were they qualified in all areas or certain areas? And that’s coming a long way – back even in the 80s and 70s, the women judges were put on family court cases or domestic relations, orphans court, wills and estate. Women lawyers couldn’t practice as easily in litigation.”

Massiah-Jackson is no stranger to breaking barriers herself. She was the first Black woman to preside over civil trials in Philadelphia. In 2001, six years after the conference, she was also the first Black woman in any county in the state to be elected President Judge. In January 2021, after 37 years of service, she retired as a Judge on the Philadelphia Court of Common Pleas.

“I thought that was an interesting thing to learn, how the judgeships were being filled, that they were focused on subject matter that they believed a particular gender would have more proclivity at handling. I was very interested in seeing that,” said Judge Patty Shwartz L’86, who serves as a Judge of the United States Court of Appeals for the Third Circuit. “And in New Jersey, the state court has a family court, a criminal court, a civil court, a special civil and equity court, and it never even occurred to me that there’d be a decision of assignment from my colleagues in the state court based upon gender. And that, to me, tells you that there’s such a big difference between today and when that event occurred.”

Splitting the qualities of “what makes a judge” into just two camps based solely on gender is certainly reductionist as it also ignores the nuance of life experiences in general for any individual, male or female. As Justice Ginsburg mentioned at the 1995 conference, a judge strives to “bring to the enterprise the full richness of humanity.”

“I think this goes into the practice of law and also just being a judge: I have to be myself,” said Philadelphia Court of Common Pleas Judge Stella Tsai L’88. “I can’t change my personality. Some judges approach things in different ways. And Justice Ginsburg’s style of persuasion is so appealing to me because it’s based on reason. And her temperament, she does certainly convey her anger, at times, and her conscience.”

Of course, each individual brings their own unique perspective to the bench based on life experience, which may indeed also include the experience of gender. But as the participants noted in 1995, gender is not the defining quality of judging.

As Judge Temin noted, “Diversity, including gender, affects the institution of the bench, but doesn’t affect impartiality, which is the goal of all judges.” Judge Shapiro added, “I have a right to be a judge. I have a duty and a responsibility to do the very best I can. That’s the obligation of men [on the bench] as well. “

Post-1995 progress

With questions simmering at the conference about how women’s societal roles, particularly as wives and mothers, might make a difference in the performance of their judicial duties, it is easy – nearly 30 years later – to also question the often slow-moving nature of progress.

“It was very slow,” said Temin. “I was elected to the bench in 1983, so I started serving in ’84, and at the time there were only five women judges in the Common Pleas Court in Philadelphia. And there were probably only 65 judges at that time and there were only five women. Four of us were elected at once. We almost doubled the number of women on the court.”

Today there are slightly more women judges in the Common Pleas Court in Philadelphia than there are men, and women judges serve in every area on all levels of the court system, including in the federal system. Since 2010, Chief Bankruptcy Judge Magdeline D. Coleman L’81 has served on the Eastern District of Pennsylvania. When progress happens, even slowly, it is still important to acknowledge it. But that does not mean forgetting what it took to make it happen, or that the work ever really ends.

Temin, who served on the bench for three decades and now serves as a first assistant to Philadelphia District Attorney Larry Krasner, says she works alongside plenty of millennial women in law whose experiences are undoubtedly quite different than her own.

“I want to sit down and ask them, ‘what’s it like now,’” she says. “When you were looking for a career, what did it look like to you? Because to me, when I went to law school, I had absolutely no expectation of ever getting a job in law. None.”

For Temin, and some of the other panelists, merely attending law school in an era like the 1950s carried extra societal pressures. The prevailing idea at the time persisted that not only would they never have the opportunity to marry and have a family if they pursued a career, but should they fail it was even worse since they took a class seat that potentially could have gone to a man.

“Because of the efforts of Justice Ginsburg and Justice O’Connor and those judges that participated in the 1995 event, for someone in my position at this point in time in history, I know I stand on their shoulders and have the luxury of just judging, where they needed to demonstrate that their gender should not be a prohibition to holding a position,” added Shwartz. “And only because of their bravery and stick-to-it-tiveness, and in the case of Justice Ginsburg, her lawyering that changed how women are seen or how gender should be seen more generally. And I do have that luxury to not be distracted or concerned, I can just judge.”

Much has changed, even since 1995. Judge Temin was one of two women in her entire graduating class at the Law School. The JD Class of 2023 at Penn Law is comprised of 50% women, and 43% of students overall identify as people of color. But the work to advance equity and inclusion continues. As the last year in particular has shown us, our society and legal system are still rife with inequities in many areas.

Broader efforts to get more women on the bench

What does progress look like? Programs like the 1995 conference can offer much needed perspective and action steps. Shwartz recalled a recent effort by the Judicial Conference Committee on the Administration of the Bankruptcy System in which she participated, titled “Roadways to the Federal Bench.”

The diversity symposium sought to inform law students and practicing attorneys about federal judgeships with a particular spotlight on bankruptcy judgeships. And while it is only one small example, it was a deliberate way to invite conversation and build more opportunity to increase diversity, something Tsai also connected to in terms of presenting a clearer pathway to judgeships in general.

“For now, until we change the system that exists we have to operate within it and do our best to do it ethically and appropriately and properly,” Tsai said. “So, demystifying the process is what I’ve been trying to do for people. It’s almost inconceivable: How can you go from just being a lawyer to becoming a judge?”

Tsai explains that, while there are many paths to the bench, gaining that insight on the process to build a roadmap from Point A to Point B can make becoming a judge more attainable and less daunting overall.

“Society is like software: we’re trying to do better,” Tsai said. “We may make mistakes in the past, and let’s try not to repeat those, but we need to do a better job. You condemn the past, but maybe the better thing to do is to remember the past and work towards a better future.”

The importance of intersectional efforts

Looking back, one particularly powerful aspect of the 1995 conference was the diversity of participants – women judges of different ages, ethnicities, experiences, and experience levels in terms of years on the bench displayed unity and a supportive community, offering perspective on their own experiences, and how more pathways of opportunity might open. They modeled a network of support that still exists today.

“Sometimes certain problems or concerns that a woman might have, not necessarily something that a male judge won’t have either, but if I have a problem I’m more likely to go to another female judge,” Massiah-Jackson said. “But we do help each other, we watch each other’s backs and keep an eye on things, today as much as 25 years ago.”

But as Shwartz and Tsai both note, part of progress also includes finding support in appreciating and seeking other perspectives, no matter whose they might be, in the goal of justice and carrying out the rule of law.

“Things change, but it does take changing other people’s hearts and minds,” said Tsai. “That’s what I love about Justice Ginsburg and Justice [Antonin] Scalia. Because the two of them, while they were polar opposites on certain things, you could see there was a true dialogue of equals.”

Justice Ginsburg’s legacy and continuing influence

Remembering the 1995 conference is also a painful reminder of last year’s loss of Justice Ginsburg, and the truly remarkable legacy she left behind. Fortunately, it was not the last time she would visit the Law School. In 2018, she gave the Owen J. Roberts Memorial Lecture, reflecting on her 25 years as a member of the Supreme Court.

“She was incredibly smart, and she was a good role model,” said Temin. “I don’t think she had to try to be a role model, I think that’s just who she was. There are a lot of women judges who you can look up to, who are just good people, who try their best to do justice. But having her so well-known and popular and being able to turn on a popular evening show and see the host in the gym with her doing her workout – in so many ways she was a model for all of us, and not just for women I think.”

What might another 25 years bring? The 1995 Journal article posited that the enduring image of the “Women in Judging” event would be that women judges could potentially change the landscape of the judiciary and the legal profession as a whole. Justice Ginsburg certainly did that and more.

“Men and women are both totally affected by the legal work she did as a practicing lawyer and continued as a Justice, so we are incredibly lucky,” added Shwartz. “People recognized that she changed our society and it’s extraordinary.”

“She was an icon,” Temin said. “And the fact that a woman judge was that well known and written about as much – everybody knew her and it was known by everybody that she was a public icon, not just somebody that we knew in the legal profession. And she lived up to that. She lived up to that.”

The Law School promotes a robust exchange of ideas and deep respect for the value of difference. The Office of Equity and Inclusion showcases our wide-ranging events, programs, and scholarship focused on diversity, equity, and inclusion, and includes resources that will help us advance our commitments along the way. To learn more about Women, Leadership, and the Law at Penn, click here.