Court authorities in the Netherlands are considering the extraordinary step of using positive discrimination to help more male lawyers become judges – because women are becoming too dominant at the top of the legal system.
Women overtook men on the Dutch bench in 2008, and since then the imbalance has become more and more pronounced: on average across the country’s courts, 56 per cent of judges are women, while in the city of Utrecht, for example, the figure is 64 per cent, two out of every three.
At a time when, in Ireland, the president of the High Court, Mr Justice Nicholas Kearns, is urging more women to apply for senior judicial posts, warning that otherwise the male–female ratio will be unacceptably low, in Dutch courts the opposite is the case.
In The Hague, court officials are understood to have drawn up an internal discussion paper to look at how to attract more men to the top jobs, and one of the options under consideration is for appointments panels, wherever possible, to favour male candidates over than their female counterparts until the balance is redressed – in other words, positive discrimination.
Theo de Roos, an eminent lawyer and emeritus professor of criminal law at Tilburg University, says that while he can’t predict whether that option will be acceptable, he can understand why those who administer the Dutch legal system have real concerns.
“There are certainly implications for the legitimacy of the legal system if, for instance, we reach a point where 80 per cent of judges are female, which is not inconceivable in some places. “At that point, one could certainly make the argument that the legal system is not representative, and that, in principle, is not good. So this is a real issue and it must be considered, whatever decision is ultimately taken.”
On the question of the male-female balance in the US judicial system, Sandra Day O'Connor, the first female judge appointed to the US Supreme Court, is often quoted as saying that a wise female judge will come to the same conclusion as a wise male judge.
However, that view is being increasingly challenged in the US and elsewhere.
In 2009, for example, in the case of a 13-year-old girl strip-searched by her school authorities who suspected she was hiding ibuprofen pills, another Supreme Court judge, Ruth Bader Ginsburg, famously dissented from her eight male colleagues, who found the search did not infringe her rights.
Judge Ginsburg commented memorably afterwards in an interview with USA Today: "They have never been a 13-year-old girl. It's a very sensitive age for a girl. I didn't think that my colleagues, some of them, quite understood."
"It is normal for judges to differ; that is part of how the system works," one Dutch lawyer told The Irish Times. "As to why we have more female judges, it may have something to do with being able to have a more structured lifestyle – though it was a gradual development so it's difficult to say."
While domestic courts in The Netherlands have moved on, arguably to too great an extent, the picture at the largest international courts in The Hague varies.
At the International Court of Justice (ICJ), the main judicial organ of the United Nations, men retain their traditional dominance.
Just three of the 15 ICJ judges – Joan Donoghue from the US, Xue Hanqin from China, and Julia Sebutinde from Uganda – are women.
However, the court did have a female president, Dame Rosalyn Higgins QC, from 2006 to 2009.
At the International Criminal Court meanwhile, the sexes are almost perfectly balanced. As of November 2013, it had 12 female judges out of a total of 21.
