Women Judges—Can’t Live With ‘Em, Can’t Live Without ‘Em

June 28th, 2010

As Elena Kagan steps up to the microphone this week to being hearings on her Supreme Court nomination, it’s a good time to remember not to ignore the fact that she a woman.  There is almost always the cursory nod to the fact that when someone who is significantly different by virtue of demographics and identity comes to an important job, that they are an X (insert woman, African American, Hispanic, sometime Gay or Lesbian).  The problem is that far too often the meaning of being an X, whichever it may be, for the position at hand is poorly understood.

That’s why a recent commentary “How Women Changed The High Court … And Didn’t,” is the kind that needs to be more front and center when people of diverse backgrounds enter new positions.  Being a woman on the Supreme Court that has been and continues to be predominantly male affects the decisions and perspectives a person takes.  For example, the commentary points out that a study conducted at the State University of New York looked at 7,000 U.S. Court of Appeals decisions from 1976 to 2002 and found no significant difference in the way female and male judges decided cases — except in one area of the law: sex discrimination.  Women justices bring a wealth of experience to the discussion about sex discrimination that male counterparts have less access to.  That broader field of perspective is a good thing.  It allows the justices to make more informed decisions, whatever the actual verdict of a given case.  And it is worth noting that there is a very large area of debate and discussion in which the fact that these justices are women makes virtually no difference.

People are far too invested in either defending that diversity is always important or that differences don’t really matter in the end.  Both arguments are flawed.  Sometimes diversity matters and sometimes it doesn’t.  Sometimes diversity is a good thing and sometimes if does more harm than good.  The job of a skillful 21st century leader is to understand the conditions that affect when diversity can add value and when it destroys value.  This is a complex, but critically important thing to be able to do.  Leaders from all contexts and organizations—business, politics, law, education, social profit, and more—have to learn how to do it.

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