What makes a top judicial leader?
By Jenni McManus
After its first attempt to stage a conference in Auckland 12 months ago was thwarted by Covid-19, the International Association of Women Judges finally got its event off the ground last weekend.
The compromise was virtual, rather than face-to-face, participation for about 1000 international attendees and speakers from some 90 jurisdictions, while several hundred New Zealand judges, senior members of the profession and selected law students gathered in Auckland for the event.
In one of the keynote sessions, Family Court Judge Mary O’Dwyer led a question-and-answer segment where five senior judges were asked about the obstacles they’d encountered on their way to the top, and how they were championing diversity on their respective benches.
Each, Judge O’Dwyer said, was a trailblazer for women in her profession and had served on the highest court in her jurisdiction.
Can you tell us about your personal journey and the barriers you faced?
Baroness Brenda Hale: former President of the Supreme Court of the United Kingdom
I come from a common law jurisdiction where the higher judiciary are appointed after they’ve done something else with their legal lives. Usually, they’ve been barristers but I wasn’t a barrister for any length of time; I was an academic lawyer and then a law reformer. So, it was something of a surprise when I became a High Court judge. I was the first, I think, to have made my career in that way, rather than as a top advocate.
So that was a challenge – not only to do the job but also to persuade people that I could do the job. Then I moved on from the High Court to the Court of Appeal and to what was then the top court in the United Kingdom, the House of Lords, which was a very weird experience because this was a committee in the upper house of our Parliament rather than a separate court and it was full of all sorts of formalities and strange procedures that no other court would have to put up with.
And, of course, we were surrounded by parliamentarians which didn’t feel quite right for a court. So, I was only too delighted when they decided to set up a separate Supreme Court of the United Kingdom and we could get into our own building and start behaving like a proper court.
Chief Justice Dame Helen Winkelmann: Chief Justice of New Zealand
I moved very swiftly to the role of partner in a commercial law firm. I was partner by the age of 25 so in some ways I don’t feel that I am a trailblazer because it’s obvious that other people had laid the pathway before me.
Here I must name-check Dame Augusta Wallace (the first woman District Court judge), Dame Silvia Cartwright (first woman Chief District Court judge and first woman to the High Court), Dame Sian Elias (former Chief Justice) and Dame Judith Potter (first woman President of the NZ Law Society). So, I feel that they paved the way for me and it was a reasonably easy pathway in that regard.
From my first time in a law firm, I began studying the leadership habits of people because I found it interesting. It seemed to me that a lot of men made their way to leadership roles simply because they were managing, rather than leading. When I went to the judiciary, I observed the same kind of behaviours.
I view this question as being about leadership rather than my own journey so I want to reflect on a few things about leadership now that I’ve been a judicial leader in one form or another for a fair part of my life.
I think a lot of the characteristics that make a good judicial leader are also the characteristics you need to be a good judge. You need the courage to do the right thing and for the right reason. There really isn’t any room for narcissism in that decision-making process. It’s quite easy to get narcissism mixed up into it and that’s not right.
You need a concept of leadership through service, and I also think a point of difference between leadership and judicial service is that a leader must create a vision for the court. They must show that there is hope for change – and I think that’s an essential and different element for a leader. They must give people the belief that change is possible.
I think I got picked out for leadership roles because I was always the awkward person in the room, and I also have a tendency to question why things are as they are. And when it comes to the judiciary, I think most of us have that initial reaction… and I think people should retain their faculties of questioning and challenge.
Justice Mandisa Maya: President of the Supreme Court of South Africa
I was born in South Africa to poor but hard-working schoolteachers with meagre salaries…. The challenges along the way are the same I think for all women – the discrimination, being slighted and your views not given due weight until they are expressed by a male counterpart, and I was not only a woman but also black.
Those challenges followed on from student days to the profession as a practitioner and then to the bench… [but] if you stand your ground and do your work diligently and produce good results … your detractors will have no choice but to recognise your efforts.
Judge Anna Blackburne-Rigsby: Chief Judge of the District of Columbia Court of Appeal
I was born in Washington DC in the early 1960s and at that time Washington DC was legally segregated – in other words, by law black Americans did not have equal access or equal rights. You couldn’t go to certain parts of the town, you couldn’t go into stores to try on clothes, you couldn’t eat in certain restaurants by law. So, legalised discrimination based on race was still alive and well in the United States at the time that I was born.
That has shaped so much of who I am and why the law is so important to me. My mother grew up in North Carolina, a southern state that had legalised discrimination laws which prohibited certain actions and opportunities for black people. My father’s family emigrated to the US from Jamaica and those two forces shaped the lives of my sisters and me because my parents were very active in the US civil rights movement in the late 1950s and early 1960s that changed the laws in the United States and ended some of the legalised discrimination based on race.
My sisters and I were taught that education, service to the community and giving back, working equally for all people in the United States and ensuring the US lived up to its promise of equal justice under law [were] the forces that prompted me to want to be a lawyer first, and ultimately led me to the bench.
After law school, I worked at a large corporate law firm where, out of 350 attorneys, I was one of only four black attorneys. After that I worked in the Attorney-General’s office in the District of Columbia, then went to the bench at the fairly young age of 35 to become a magistrate judge. I then became an associate judge, or a full trial judge. In the District of Columbia, as it is not a state, the judges are appointed by the President of the United States and confirmed by the Senate. So, I was confirmed by a Democratic President to the trial court and when I joined our appellate court (our highest local court) I was nominated by a Republican judge.
I’ve been in my current position for 15 years and have just started by second term as chief judge.
Faith, family and fortitude – I call those my ‘three Fs’ – are the things that have sustained me. By fortitude, I mean ‘grit’. Challenges along the way, as a woman and as a black woman: sometimes your voice just isn’t heard initially. Even as a judge, I may say something and then a male colleague says the same thing and what I said isn’t heard but when a male colleague says it, it is heard and lauded. I have learned different strategies – not to get angry or confrontational but to reclaim my own words and ideas and to own them and to try to stand firmly in my belief in the importance of equal justice. And we’re still realising that goal in our country.
Just one challenge I’ll mention: the events of this global pandemic colliding last summer with the renewal of racial unrest in our country has exposed a fault-line that have always existed across poverty and race. As judicial leaders, judges across our country are starting to call these issues out and that has been unprecedented; judges were always reticent about doing that before.
How have you used your experiences to champion diversity, particularly in the judiciary?
I was born into a family that was dealing with adversity. Before I got to school, we were welfare-dependent and were welfare-dependent for the rest of my childhood. We also had a household that was living with severe disability.
So, I had a good understanding by the time I came into the law about what it was to exist on the margins of society and what it was to be economically powerless and knowledge-deficient to engage with the levers of power. I think that’s the thing I have carried throughout my career in the law, in terms of shaping my agendas as to what I wanted to do in the law, and as to what I wanted to do in the judiciary and as to what I wanted to achieve in judicial leadership.
Key to that is achieving diversity in the judiciary. Unless you have some understanding from having walked that path through your life or engaged with it in your professional life, working for those who are really marginalised, it is hard to understand how the law operates on those people – or doesn’t operate. It comes down on them, but it doesn’t tend to lift them up because they can’t engage with it.
So, to me, diversity is critical. Gender diversity is obviously a key objective – in New Zealand, we’ve done very well but we can never relax. We’ve claimed the geographical territory pretty well for women…. [but] women aren’t necessarily going to speak for those who are marginalised… so that’s one of the reasons this organisation is very important because it reminds us of that service, that ethos of service in the role women have to play in the judiciary.
But beyond that I think it’s really critical that we view diversity in the judiciary with a broader lens than just gender. We need to have a mindset of socioeconomic diversity, work experience diversity, disability, ethnicity – we need to try to get a judiciary that reflects the whole of society.
Obviously, we’re not looking for a perfect statistical mirror but we’re looking at something where our society can look at our judiciary and think ‘yes they bear some relationship to me’. So that’s the representative nature of it. We also have to think about the knowledge the judiciary brings to decision-making.
Diversity in the judiciary is critical, especially in a country such as South Africa where the majority of citizens were excluded from all active public and profitable life for generations. In terms of our persecution, a diverse judiciary is imperative… [along with the need] for women to support one another.
These experiences are the basis of my crusade to mentor women law students, encourage women lawyers and create opportunities for them to take up judicial appointments and mentor and assist them once they are appointed
Diversity in the judiciary is critical to maintaining public trust and confidence in the judiciary and the courts. We can’t under-estimate how critical that is. Also on the appellate court, where judicial decisions are made collegially by a panel of judges, diversity is very important…. Gender diversity, racial and ethnic diversity – and also professional diversity. We should not have a judiciary that is full of just prosecutors or defence attorneys. You need diverse professional backgrounds.
There were always expectations [in the UK], as there are in many places around the world, about the sort of lives women would lead. And we will lead them in the sense that we want to have families and we want to have children. When I was a child, women were expected to choose between having a career and having a family. We no longer are, and so we have to try and find ways of making the profession work for people who have families.
The legal profession in my country is doing something towards challenging the long-hours culture, the presenteeism, the jacket-on-the-back-of-the-chair syndrome that means people have to spend a lot of time in the office, even though they’re not necessarily doing anything very productive there.
There is a lot more work to be done in challenging those sorts of assumptions about how professional life is led. It may be a benefit from the pandemic that people are now having to learn to work in different ways. Some of this is to women’s disadvantage but some of it is very much potentially to their advantage.
On the issue of diversity, I agree with everything that has been said: democratic legitimacy, better decision-making and no small group of people laying down the law for the great majority of people. People must feel that the courts are there for them.
But the best way to have a diverse judiciary is to have a genuinely open and transparent merit-based appointment system. I say that knowing this is not the case in many countries. There are many other ways of appointing judges, but I am convinced that the way to get diversity is to do that. And to encourage women from all walks of legal life to think of themselves as potential judges and to encourage them, mentor them and bring them on.
The other side of that is to encourage the appointing bodies to recognise merit in all walks of legal life…. because there is still in my country a tendency [to think] that only the top advocates are qualified to be the top judges and it’s an assumption which we ought to challenge.
We ought to look for potential, merit, legal ability – and all the other qualities of a good judge – rather than what somebody has been doing before. The best advocates do not necessarily make the best judges and that’s one of the routes to improved diversity. We’re making quite a lot of progress in the United Kingdom but we’ve still got quite a long way to go.
And I will go on banging on about it. This has been called by one of my judicial colleagues in one of his diaries ‘Brenda’s Agenda’. I am going to go on pushing Brenda’s Agenda for as long as anyone will listen to me.
What are the advantages and disadvantages of making decisions with several other colleagues?
Justice Irene Mambilima: Chief Justice of Zambia
Having a collegial court means you have to manage different views.
We have about 10 members of the Supreme Court and we discuss all the matters before we sit in court and assess the merits and demerits of the case. This means we put our heads together but if we do not agree, then it becomes a bit tricky. Those who feel strongly [and disagree] will have to write a dissenting judgment.
When I first came onto an appellate court, I was surprised by how confronting group decision-making actually is. It’s a very intimate thing because when you hear how your colleagues see exactly the same set of facts, analysed against exactly the same legal framework, [you wonder how] they could come to such different views.
You really do see how people’s experiences – the values that they have brought with them – play out in that forum. I think to have a successful appellate court, your colleagues and you need to show great respect to care for the points of view of others. You have to make sure you don’t allow your ego to occupy the space that your opinions occupy so it doesn’t become a personal thing.
Our Supreme Court was created with the vision that it would allow a law that was fit for New Zealand to develop… and I’ve found since I came to the Supreme Court how hard it is to do that because you want to respond to the circumstances in New Zealand, you want to allow the law to change but you need to do [it] so the law is clear enough and simple enough so it’s accessible for others.
The difficulty of that is when you get five or six very active minds in a group trying to work that out it’s very easy for opinions to splinter and for the law to suddenly become complex. I think that’s the great challenge. So, it’s so important that you don’t see it as a personal contest and that your point of view must win, and engage with the points calmly and respectfully.
Our court at full strength would be nine judges; currently we have seven and four of us are women. We typically sit in panels of three to hear cases and each panel’s decision is precedential and becomes the law of the jurisdiction. The only way to overturn a decision of the three-judge panel is if we sit as the full court.
When we’re deliberating in these cases, we usually have a brief conference before the hearing and we have a lengthy meeting after the oral argument. Then the judge who is assigned the primary role of writing that decision, based on how our discussions have gone, will circulate a draft for the other judges to review and hopefully join.
That process of commenting and circulating and sharing comments is very robust. I’ve been a judge for 26 years and my first 11 years on a trial court were very different, where you are a single judge, deciding a case and issuing an order and you’re done. The first time I sat as an appellate judge I remember thinking that the opinion I had written was so perfect I sent it directly to our clerks’ office for publication and issuance – and boy, did I hear an earful from my other two colleagues who hadn’t had the opportunity to comment.
That process of being open to hearing the views of others and holding strong views of your own and having the ability to give and take makes it much more difficult than I ever would have imagined. To do it in a collegial way is very hard. But I think our court does it well and to me it’s a model for civil discourse. Our terms are 15 years and I think that helps because you may disagree with a colleague on one issue, but you’ve got a long time and many cases so you might be aligned on another issue.
The advent of technology has changed how we do business, and we have to be very careful about that. I’m talking about emails because what used to be face-to-face conversations, where you could read the expressions of your colleagues, have now become email exchanges. We have to be very careful about civility because sometimes when an email, particularly one you’ve sent quickly, is received, the tone you may not have realised you’ve included in the email may be offensive to the other person.
We have to bear in mind that the theory of appellate courts is that three minds are better than one in the Court of Appeal, and in the Supreme Court four minds are better than the three in the Court of Appeal.
So that being the theory, it’s our job, especially as judicial leaders, to make it true and to make it work. I found that the greatest challenge for new justices in the Supreme Court was to realise that they were allowed to develop the law because in the Court of Appeal, they were mostly having to follow [previous decisions]. Often, they had a lot of trouble working out what they were and what they meant and reconciling them all.
But we have the luxury of being, on the whole, able to make our own decisions without having to follow the Court of Appeal. We can also depart from our own previous decisions, but we don’t do that very frequently.
But, of course, if the possibility exists of developing the law, you’ve got to do it responsibly, carefully – so, being creative but not too creative. That itself is a huge challenge and some of our colleagues are more creative than others.
So, the idea is to steer a middle course between the people who don’t want to change anything and the people who want to change too much – and to do it with everybody staying good friends. You may disagree on one occasion, but the odds are very strong that on another occasion you’re going to agree.
I like to say that we’re none of us too predictable. It would be a very bad thing if the general public or the lawyers could inevitably predict which way any individual judge was going to decide a difficult question of law. In our court, we always try to maintain a sense of mystery.