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Theresa M. Beiner

excerpted from: Theresa M. Beiner, White Male Heterosexist Norms in the Confirmation Process, 32 Women's Rights Law Reporter 105 (Winter/Spring 2011) (278 Footnotes Omitted)

The assumptions of those who espouse the theories discussed in the previous section is that a judge's background will influence how he or she understands cases. Indeed, underlying Justice Sotomayor's wise Latina woman comment is the idea that people of different backgrounds will bring different perspectives to the bench that may have an impact on decision making. The effects of race, ethnicity, and gender on decision making in particular are implicated in her remarks. So, was Justice Sotomayor correct? Do these characteristics have an impact on case outcomes? Studies suggest that sometimes they do.

A. Studies of the Impact of Race and Gender of Judge

Early studies on the effect of gender, race or ethnicity of judges on case outcomes showed mixed results - some studies showed no effect while others showed some effect. However, more recent studies have shown effects based on race and gender, especially in cases involving employment discrimination and certain types of civil rights.

Several studies show that race and gender affect voting patterns of judges in employment discrimination cases. For example, political scientist Nancy Crowe studied race and sex discrimination cases decided in the United States courts of appeals between 1981 and 1996. Her study focused on non-unanimous cases, i.e., those in which the panel disagreed on the outcome. She focused on these cases because they have the most potential for a judge's ideology to play a role, due to apparent room for disagreement. Included in Crowe's study were race, gender, and political party of appointing president. These factors had an impact in several instances. For example, women and African American judges were more likely to vote for a sex discrimination plaintiff than their White male counterparts. There was a strong correlation between political party and the decision in sex discrimination cases. For example, a White male Democrat appointed judge voted for the sex discrimination plaintiff in these cases 76% of the time, whereas his Republican appointed counterpart did so 28% of the time. There was also evidence of a partisanship effect on sex discrimination decisions for women and African American male judges. While White female judges and African American male judges who were appointed by Democrats voted consistently for the sex discrimination plaintiff (White females - 90%; Black males - 93%), their Republican counterparts were far less likely to vote for the sex discrimination plaintiff (White female judges - 53%; Black male judges - 61%). Still, the Republican appointed White female judges and Black male judges were much more likely to vote for the sex discrimination plaintiff than their White male counterparts.

The findings in race discrimination cases were a bit different. There was little difference between White men and White women appointed by presidents of the same political party, but there was a difference for African American male judges. Thus, White male and White female judges appointed by a Democrat voted for a race discrimination claimant in 49% and 51% of the cases respectively. However, their African American male counterparts did so in 85% of the cases. There was a similar pattern for judges appointed by Republican presidents. Thus, White male judges and White female judges appointed by Republican presidents voted for the race discrimination plaintiff 20% and 21% of the time respectively. Their African American male counterparts voted for the race discrimination plaintiff 60% of the time. Thus, political party was the decisive factor for White male and female judges, whereas race correlated for African American male judges in these cases. Similarly, Songer, Davis, and Haire found in a 1994 study that female federal appellate judges were much more likely than men to support victims of discrimination.

Other studies are consistent with respect to the effect of gender of appellate judges in sex discrimination cases. In a 1986 study of state supreme court justices, Gryski, Main and Dixon found that the presence of a woman on the court increased decisions in favor of sex discrimination appellants. In addition, recent studies of appellate courts show that the presence of a female judge on a panel increases the likelihood that a male judge will vote for a plaintiff alleging discrimination.

More recently, Sarah Westergren looked at sex discrimination decisions from the United States Courts of Appeals during 1994-2000. While the sex of the judge did have an effect in these cases, it did not reach the 0.05 level that would be required for statistical significance. Instead, political party of appointing president and race of the judge were better predictors. Judges who were members of minority groups were more likely to vote for the sex discrimination plaintiff than White judges. In addition, judges who were appointed by Democrats were more likely to vote for sex discrimination plaintiffs than those appointed by Republicans. Results such as these have led some to opine that the differences in voting patterns between men and women are better explained by the political party of the appointing president rather than gender. There are many articles describing these studies in detail.

Similarly, results from studies of the federal district courts have found political affiliation of appointing president playing more of a role. Professor Jennifer Segal studied the effects of race and gender on judicial decision making, but her study focused on the federal district courts. Unlike Crowe, Segal's study focused only on Clinton appointees to determine whether there were differences in voting behaviors based on race and/or gender of the judge. She ultimately studied 799 cases for gender and 701 cases for race. For sex, the study addressed women's issues, including cases about gender discrimination, sexual harassment, abortion rights and maternity rights, custody battles, and equal pay. Her race cases included race discrimination, voting rights, school desegregation, and affirmative action. In addition, the study included ethnic, disability, age and poverty discrimination, . . . alien rights, personal liberty cases, criminal rights cases, and federal economic regulation cases in both the race and gender analyses. There ultimately was little difference found in case outcomes based on the race or sex of the district court judge, and where she found differences, they were often unexpected. For example, she found no statistically significant differences based on the sex of the judge except in cases pertaining to women's issues, wherein the male judges were more supportive of the women's position than the female judges. Carp, Manning and Stidham had similar results in a study of Clinton district court appointees in criminal, civil rights and liberties, and labor and economic relations cases. This study found that Clinton's White male appointees rendered liberal decision more often than his nontraditional appointees. Thus, while not all studies show race or gender effects, at least in court of appeals discrimination decisions, a judge's race and sex have been shown to correlate with voting records. Thus, diversity seems to make a difference in certain situations.

B. Other Evidence of the Difference that Difference Makes

Some judges have acknowledged the impact that differences in background can make in the judiciary. Justice Sotomayor was not the first to make this suggestion with her wise Latina woman comment. For example, Justice Ruth Bader Ginsburg has noted [w]omen bring a different life experience to the table. All of our differences make the judicial conferences better. That I'm a woman is part of it. Similarly, federal appellate judge A. Wallace Tashima explained that his life experiences, including being evacuated from his home and moved to an internment camp during World War II, shaped the way I view my job as a federal judge and the skepticism that I sometimes bring to the representations and motives of the other branches of government.

Justice Sandra Day O'Connor explained the impact of Justice Thurgood Marshall's background on Supreme Court discussions:

Although all of us come to the Court with our own personal histories and experiences, Justice Marshall brought a special perspective. His was the eye of a lawyer who saw the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice.

At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth. Thus, judges from a variety of ethnic and racial backgrounds have acknowledged that their backgrounds and the backgrounds of their colleagues can have an impact in a variety of ways on the court system.

Justice O'Connor's own experiences likely affected her judging. Sex discrimination in employment was very real to her; after graduation from Stanford Law School, the only job offer she received was as a legal secretary. This is not to say that so-called traditional judges--White males--cannot attain this perspective. Indeed, Justice Sotomayor in her lecture containing the now infamous wise Latina woman comment, noted that:

I . . . believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable . . . . [N]ine white men on the Supreme Court have done so on many occasions and on many issues including Brown.

Thus, while it is certainly possible for traditional appointees to see the perspective of others, those with direct experiences in different communities may find it easier to understand the perspectives of those communities and raise those perspectives with colleagues.

A study of female judges suggests that they perceive themselves as more sensitive to issues of sex discrimination and believe they bring a unique perspective to the bench. In her study of female state court judges, political scientist Elaine Martin asked the judges if they agreed, were neutral on, or disagreed with various statements about the role of female judges. One of the statements read as follows: [w]omen judges are probably more sensitive to claimants raising issues of sexual discrimination than are men. Of those responding, 67.77% of those who were members of the National Association of Women Judges (NAWJ) agreed, and 52.7% of those who were non-member women judges agreed as well. In addition, 85.37% of NAWJ members and 63.59% of non-member women judges agreed that [w]omen have certain unique perspectives and life experiences, different from those of men that ought to be represented on the bench by women judges. Some NAWJ members also believed that their presence on the bench has made a difference in the way men judges think about how their decisions will affect women as a group. Finally, 80.3% of NAWJ members who were surveyed agreed that [w]omen judges work formally and informally within their court systems to heighten the sensitivity of other judges to potential problems with gender bias in the courtroom and in substantive law. Likewise, 76.9% agreed that [w]omen judges have an influence on how their judicial colleagues perceive cases involving women's issues.

Evidence of differences in perspectives among judges of differing backgrounds is likewise supported by the work of gender, race, and ethnic bias task forces. For example, California's Advisory Committee on Gender Bias in the Courts found that approximately 63% of women judges believed that gender bias against women was widespread and apparent or subtle in the California courts, whereas less than 24% of male judges believed the bias was widespread. In addition, approximately 45% of female judges responded that they on occasion or frequently observed judges make remarks considered demeaning to women in and out of the courtroom, whereas only 6.6% of male judicial officers did so. Based on these experiences and perceptions, women judges may have more understanding about the circumstances that give rise to an action for sex discrimination.

Race and gender likewise play a part in how judges treat individuals appearing before them. The D.C. Circuit Task Force on Gender, Race and Ethnic Bias found that 33% of minority women lawyers (as well as 33% of African American women lawyers as a subgroup) responded that a federal judge had questioned their status as a lawyer or assumed that they were not a lawyer; comparatively, only 9.9% of White women and 10% of minority men reported such behavior. The number is even smaller for White men, of whom only 1% reported such behavior. It is not much of a leap to imagine, for example, that African American women judges, who have such experiences, will treat lawyers of color respectfully in the courtroom. Thus, the experiences of these diverse lawyers, if given an opportunity to serve on the bench, might lead to more respectful treatment of women and members of minority groups who are litigants, witnesses, and lawyers in the courtroom.

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.