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.
