As the U.S. Supreme Court winds down its term with several more controversial split decisions yet to come, we are reminded once again of how important an independent judiciary is to the maintenance of a democracy. Back in 2007, when General Musharraf of Pakistan closed shut that country’s Supreme Court, lawyers took to the streets in their black suits and ties to protest the action. In Guatemala, the lack of an independent judiciary is preventing survivors and families from seeking redress for the atrocities committed during that nation’s extended civil war. Here in the United States, we wonder whether the ideological underpinnings of this Supreme Court ensures that our next president will be elected by WalMart or Goldman Sachs rather than by an informed electorate.
That’s why a 2008 documentary about the South African judicial system called “Courting Justice” might be a good addition to your summer viewing. “Courting Justice” will certainly raise your spirits, hope, and confidence that change is possible with a whole lot of determination, discipline, and collective action.
The film was created by Ruth B. Cowan and directed by Jane Thandi Lipman. By the way, Professor Cowan is a Senior Research Fellow, The Ralph Bunche Institute for International Studies, The Graduate Center of The City University of New York, and is available for speaking engagements. You can email her at firstname.lastname@example.org . (She is also not charging licensing fees, so the cost of a showing can be as low as $12 for the DVD!)
“Courting Justice” goes behind the scenes and records what appear to be the private thoughts of several women judges, mostly African, mostly quite young, who were the first women of color to join the nascent judiciary, including the new Constitutional Court, under the South African post-apartheid constitution. The film also includes an interview with Jeanette Traverso, one of the first woman judges to be appointed to a High Court, during apartheid, who remains the only woman in a leadership position in the South African judiciary. Fourteen years into democracy and only 18% of South Africa’s male-dominated judiciary are women.
Of course, we have no bragging rights here in the United States 146 years after enactment of the Thirteen Amendment and 91 years after the Nineteenth went into effect. In 2010 only 26% of seated state court judges were women. And it’s worse for judges of African American and Hispanic descent. Just last month Arenda L. Wright Allen was confirmed as the first African American woman judge to ever be seated in a federal court in the Commonwealth of Virginia! I don’t often cite to Elie Mystal in his Above the Law blog, but here are the latest statistics on women and people of color in the judiciary: As of August 2009, 70 percent of federal judges were white men, 15 percent were white women, 10 percent were minority (African-American and Hispanic) men, and 3 percent were minority women.
“Courting Justice” is full of statements about the perspectives brought by these women to their roles as judges. Contrast that with the flack over Associate Justice Sonia Sotomayor’s “wise Latina” comment! In one scene, Justice Mandisa Maya of the Supreme Court of Appeal, returns to her rural village where she participates in a traditional court hearing a case involving allegations of livestock theft. Justice Maya touchingly speaks about how returning home keeps her grounded and reminds her of how far she and so many others in South Africa have come. Justice Yvonne Mokgoro of the Constitutional Court openly mentors Judge Patricia Goliath of the High Court of Cape Town. These women understand that in addition to being mothers, and often wives, too, that they must make personal sacrifices in order to serve their country at this extraordinary moment in time. They are also very aware that they must nurture the next generation of women jurists, especially African women, onto the bench.
The post-apartheid constitution of South Africa guarantees the most inclusive list of human rights, including the protection against discrimination based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth; human dignity; rights of privacy; access to the courts; right to housing and education. The list, which is of course, aspirational, provides the bedrock for the newly formed Constitutional Court, whose jurisdiction is to interpret the new constitution. Whether these women judges are sitting on a provincial High Court, a Supreme Court of Appeal, or the Constitutional Court, they share some extraordinary concerns: the responsibility placed on their shoulders as the first women judges and the underlying courage needed to be the first women and women of color to be making the rules that will govern this young democracy.
The film captures the seriousness with which these women perform their duties by returning throughout the film to watching as each judge dresses in her robes, meticulously arranging lace collars and black belts. The music, too, by Phillip Miller succeeds in joining the intellectual with the heartfelt, making this a woman’s film about women judges.
“Courting Justice” raises another important question: what is the responsibility of law schools to prepare judges? This discussion belongs throughout our curriculum as we seek ways to increase access to justice. The qualities of a good litigator are not necessarily those of a good judge, yet we choose our judges from a pool of often charismatic prosecutors, corporate attorneys, loyal partisans, and rarely from public interest, criminal defense, or academic backgrounds. Fairness, inscrutability, decision-making, and impeccability are not usually perceived as necessary to successful legal practice yet each is essential to good judging. At the SALT Teaching Conference “Teaching in a Transformative Era: The Law School of the Future” in December 2010, a panel comprised of Sande L. Buhai (Clinical Professor Loyola Law School); Ved Kumari (Chairperson, Delhi Judicial Academy Karkarduma Courts Complex); Amari Omaka (a former Senior Magistrate- is the Director of Ebonyi State University Law Clinic, Abakaliki, Nigeria); Stephen Rosenbaum (Lecturer, University of California, Berkeley School of Law and Stanford Law School; adjunct professor Golden Gate University School of Law); Supriyo Routh (Assistant Professor West Bengal National University of Juridical Sciences); and Anne Taylor (Court Attorney, New York) reviewed the lack of judicial training in law schools in India, Nigeria, and the United States. France, Spain, Portugal and Germany stand out as some of the few countries that provide post-law school instruction for judges–actual training and assessments–for career jurists. (Their presentation will soon be published as an article in Pacific McGeorge Global Business & Development Law Journal, along with several others from the December SALT conference.)