The Elastic Ceiling: Gender and Professional Career in Chinese Courts, Chunyan Zheng, Jiahui Ai, and Sida Liu
As social organizations, courts are not only constituted by their internal hierarchy or interdependency with other organizations, but also by the career mobility of their judges.
In common law jurisdictions, judges are often appointed to the bench later in their legal career and thus career mobility is mostly an internal movement within the judiciary. By contrast, judges in civil law jurisdictions have more diverse mobility patterns in their careers. In this article, Chunyan Zheng, Jiahui Ai, and Sida Liu use the case of Chinese women judges to demonstrate how the promotion tracks in courts and the outbound mobility to the government and legal services sectors shape the gendered dynamics of judges' professional careers, resulting in an “elastic ceiling” for women in courts.Chinese courts are no exception to the global trend of feminization, though it is still at an early stage. Since the 1990s, the numbers of women in law school classrooms and on the bench, as well as in law firms, have been increasing steadily. In 20r0, there were approximately 45,000 female judges in China, accounting for about a quarter of all judges in the country. By 20r3, the number of female judges had increased to about 57,200, or 28.8 percent of all Chinese judges. In younger cohorts of judges, the proportion of women is even higher, exceeding half of assistant judges in many courts. More importÂantly, many women judges have risen to mid-level leadership positions in Chinese courts, such as division chiefs and vice-chiefs, who are in charge of specialized divisions in the judicial bureaucracy. However, it remains difficult for women to be promoted to top leadership positions, such as vice-presidents and presidents. In other words, despite the structural barriers and workplace challenges that they face, women have at least weakened the glass ceiling in the Chinese judicial system.
[...]We argue that the elastic ceiling for women is not simply a consequence of human capital investment or gender stratification, but the result of two social processes that structure the patterns of gender inequality. The first social process is dual-track promotion, which concerns the vertical mobility of judges in the judicial and civil service bureaucracies. In Chinese courts, two tracks of promotion coexist. In the professional track, promotion primarily is based on the evaluation of a judge's professional expertise and work performance. In the political track, promotion primarily is based on a judge's social and cultural capital and political connections with higher level Party or administrative leaders. We argue that women are more disadvantaged in the political track of promotion than in the professional track. As [Fiona M.] Kay and [John] Hagan demonstrate, women are often deficient in their social and cultural capital in the masculine culture of the legal profession (and, in our case, the bureaucracy), which makes them less competitive than men in the political track. The prevalence of patronage and corruption in the Chinese judiciary further increases women's disadvantages in high-level leadership promotion. However, when female judges are evaluated by the same technical standards about their work performance as their male colleagues, they are not signifiÂcantly disadvantaged in the professional track. The elastic ceiling in the careers of Chinese women judges, therefore, is structured by the different effects of the two coexisting tracks in mid-level and high-level leadership contests.
The second social process is reverse attrition, which concerns the horizontal mobility of judges from courts to other law-related jobs. The potential
295 destinations of judges' horizontal mobility can be divided into two routes: the money route and the power route. In the money route, judges quit their public-service jobs to become lawyers in law firms, in-house counsel in enterprises or financial institutions, or take lucrative positions in other market sectors.
In the power route, judges transfer from courts to government offices, the people's congress, the Political-Legal Committee, or other Party-state agencies. We argue that, in both routes, men aspiring for more money or power are more likely to leave the judiciary than women, who tend to stay behind due to lack of opportunities, family obligations, or personal considerÂations. Women often assume lower positions in the labor queue than men and, in the Chinese case, a judge generally is considered less profitable than a lawyer and less prestigious than a government official. In other words, the corresponding lower positions of women and judges in legal and political careers contribute to the emerging feminization in Chinese courts, and it helps explain the elastic ceiling in female judges' careers because male judges often abandon their posts at mid-level leadership positions, but not high-level ones. This pattern of horizontal mobility is the reversal of the mobility patterns often observed in Anglo-American law firms, in which women usually are the subjects of attrition. [...]Why are these “connections or backgrounds” so important in high-level leadership promotion? It is because, as the Anhui judge explained in the quote above, once a judge's administrative rank reaches the deputy division head level or above, which is usually the case for vice-presidents and presidents in basic-level courts or division chiefs in intermediate courts, the appointment decision must be confirmed by the Party Organizational Department. The cadre selection process of the Chinese Communist Party is heavily based on clientelism and thus political ties with local Party and administrative leaders are extremely important for a judge to be promoted to the high-level leaderÂship in his or her court. Nevertheless, women face significant barriers in developing such connections in the workplace. [...]
Cultural capital presents another barrier for women in Chinese courts. When asked about the essential qualities for high-level leadership, masculine words such as “piloting abilities”, “macro perspective”, “determinant”, “authoritative”, “bold”, and “autocratic” were mentioned frequently by our interviewees.
A judge in Zhejiang even told us that “silly girls like us are not interested in questions like whether or not to become leaders”. And when asked what type of women could become high-level leaders in courts, two female judges in different provinces answered with the same popular term “tough girl” and then explained that female court leaders must have “mascuÂline qualities” and “gender-neutral qualities”. Indeed, like female partners in law firms, female court leaders also face serious role conflicts between their identities as women and as leaders in the judicial bureaucracy. [...]When is the optimal career stage for a judge to take the money route and become a lawyer? Although brain drain occurs at almost every level of the judicial hierarchy, mid-ranking judges younger than 40 years old are the most likely targets for law firms. This is because these judges usually have reached a plateau in their judicial career, but the legal expertise and social networks that they have accumulated over the years are highly desirable for law firms and inÂhouse legal departments. If a judge was promoted to vice-president or presiÂdent in the court, his or her chances of leaving the post would significantly decrease. The loss of many mid-ranking male judges leaves plenty of vacancies at the division chief and vice-chief levels, which usually are filled by women. The horizontal mobility of mid-ranking judges partially explains why so many women have been promoted to mid-level leadership positions, but not high- level ones.
Why did many female division chiefs and vice-chiefs choose to stay in the court despite the low income, declining prestige, and heavy workload? Some of our interviewees referred to their age, personality, desire for stability, or the weaker breadwinning pressure for women. Another frequently mentioned reason is that the legal services market is less friendly for women than the judiciary and “getting clients and developing connections feel too burdenÂsome”. Similarly, it is also easier for men to pursue a political career in the Party-state bureaucracy than for women. In other words, women's decisions of staying in the court are not only their individual choices but also the results of the structural constraints that they face in both the market and the bureauÂcracy. The reverse attrition of men, accordingly, is a social process driven by their advantageous positions in the job market and it reproduces gender inequality in both the judiciary and its adjacent social spaces.