C. The Role of the Diverse Judge
While the statistics and anecdotal evidence noted above suggest that some judges believe that their backgrounds influence how they perceive certain types of cases, perhaps the most compelling evidence of difference comes from judicial decisions themselves. Indeed, how a judge's background affects a case is best demonstrated by looking at real lawsuits involving nontraditional judges.
Judge Carlos Lucero is a Latino sitting federal judge on the Tenth Circuit Court of Appeals. In Vigil v. City of Las Cruces, Judge Lucero dissented from a denial of a petition for rehearing en banc. At trial, plaintiff Mary Ann Rocha Vigil complained about sexual and racial harassment by her supervisor. Ms. Vigil alleged that her supervisor frequently referred to Hispanics as wetbacks, and that he commented that I didn't know that Mexicans had rights. This same supervisor offered her pornographic software and constantly asked her to go flying with him in spite of her repeated refusals. The panel majority held that the supervisor's alleged actions were insufficiently severe or pervasive to amount to actionable racial or sexual harassment as a matter of law. In his dissent to denial of rehearing, Judge Lucero explained why he disagreed with the panel's assessment of Ms. Vigil's racial harassment claim:
In affirming summary judgment for the City of Las Cruces, the panel holds that it is per se unreasonable for a Hispanic worker to consider what she describes as her supervisor's frequent references to wetbacks as being hostile or abusive. I am disappointed that the panel reaches that conclusion; more importantly, I can see no legal or factual basis to support it. The term wetback is severely degrading. . . . Accordingly, its use hardly needs to be pervasive for a Hispanic employee to find her work environment hostile and abusive - and reasonably so.
Judge Lucero understood how this term could be sufficiently severe to satisfy the standard for racial harassment; the other judges did not. Did Judge Lucero's background increase his understanding of Ms. Vigil's situation? Certainly a Hispanic judge could understand the feelings and reactions that use of a term such as wetback would engender in a Hispanic listener. It is likely that non-Hispanic judges would have less understanding of the implications of such language on a Hispanic employee.
Other examples of a judge's background affecting decision making on the bench include several rather recent cases in which Justice Ruth Bader Ginsburg disagreed (at least in part) with the majority, and even expressed public exasperation at the positions of her fellow Justices. Much of the public discussion came as a result of comments made by Justice Ginsburg about being the only female justice on the Court after the retirement of Justice Sandra Day O'Connor. Several cases, in particular, made Justice Ginsburg wish for a fellow female justice. For example, Safford Unified School District v. Redding involved the strip search of a thirteen- year-old girl to locate ibuprofen, a drug that was considered contraband in her school. After oral argument, Justice Ginsburg made the following observation to the media regarding her male colleagues, [t]hey 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. While Justice Ginsburg placed herself in the thirteen- year-old girl's position, fellow Justice Stephen Breyer likened the search to changing for gym class. Although the Court ultimately held that the search was unreasonable, the majority agreed that the administrator who ordered it was protected by qualified immunity. Dissenting in part, Justice Ginsburg disagreed, arguing that the search violated clearly established law and therefore the girl was entitled to a remedy. In particular, Justice Ginsburg focused on the continued humiliation of plaintiff Savanna Redding even after school officials found no contraband during their strip search. As she explained,
To make matters worse, Wilson did not release Redding, to return to class or to go home, after the search. Instead, he made her sit on a chair outside his office for over two hours. At no point did he attempt to call her parent. Abuse of authority of that order should not be shielded by official immunity.
Similarly, Justice Ginsburg dissented in and publicly commented on two cases involving sex discrimination, AT&T Corp. v. Hulteen and Ledbetter v. Goodyear Tire & Rubber Co. In Ledbetter, the Court held that the decision to set an employee's pay was a discrete act that triggered the 180-day EEOC filing period for purposes of filing a claim under Title VII. Lily Ledbetter, a supervisor for Goodyear for nearly twenty years, was paid significantly less than similarly situated male supervisors. Because Ledbetter filed her charge of discrimination more than 180 days after Goodyear made the discriminatory decisions, the Court held that her claim was time-barred even though she continued to receive reduced pay compared to her male colleagues within the 180-day charge filing period. In her dissent, Justice Ginsburg examined the workplace realities of a woman employed in a traditionally male field and read the statute to encompass Ledbetter's claims. She explained, [c]omparative pay information . . . is often hidden from the employee's view . . . Small initial discrepancies may not be seen as meet [sic] for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves. Justice Ginsburg personally understood the context in which Ledbetter was working - a woman among many men - and took into consideration what might cause a delay in addressing her salary concerns. Thus, Ledbetter was reasonable in waiting to complain until these disparities became apparent and sizable. Reasoning that pay differentials of this sort result from a series of discrete acts, Justice Ginsburg forcefully argued that the standard developed for sexual harassment claims, whereby only one act of continuing harassing behavior need occur within the 180-day charge filing period to be timely, should apply. She also noted that in a disparate pay case, the employer continuously benefits from paying a woman lower wages than male counterparts. Justice Ginsburg also detailed the evidence that Ledbetter's pay differential was indeed based on sex discrimination. This evidence was notably absent from the majority opinion. In response to the majority's holding in this case, Justice Ginsburg read her dissenting opinion from the bench, ending with a call to Congress to amend the statute to overturn the decision. In Hulteen, the Court permitted AT&T to decrease pension benefits for women who took time off for disabilities related to pregnancy (even though leave for other disabilities did not count against an employee's benefits). As Justice Ginsburg explained:
The history of women in the paid labor force underpinned and corroborated the views of the lower courts and the EEOC. In generations preceding - and lingering long after - the passage of Title VII, that history demonstrates, societal attitudes about pregnancy and motherhood severely impeded women's employment opportunities.
She continued in the opinion to discuss the history of widespread discrimination against women based on pregnancy in the United States. As she further stated, [c]ertain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman's place among paid workers and active citizens. As the media reported, Ginsburg remarked that oral argument in Hulteen was, just, for me, Ledbetter repeated . . . adding that her colleagues showed a certain lack of understanding of the bias a woman can face on the job.
In summary, Justice Ginsburg explained,
You know the line that Sandra [Day O'Connor] and I keep repeating . . . that at the end of the day, a wise old man and a wise old woman reach the same judgment? But there are perceptions that we have because we are women. It's a subtle influence. We can be sensitive to things that are said in draft opinions that (male justices) are not aware can be offensive.
Justice Ginsburg noted that while the differences between male and female justices . . . are seldom in the outcome, she further acknowledged, it is sometimes in the outcome. In Safford, the majority agreed with Justice Ginsburg that a strip search of a thirteen-year-old girl for ibuprofen was unconstitutional, but the Court still afforded her no relief. Given the statements of some Justices during oral argument, it would be interesting to know if Justice Ginsburg's understanding of a thirteen year-old girl's perception swayed this outcome.