Excerpted from: Christina L. Boyd, Paul M. Collins, Jr., Lori A. Ringhand, The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings, 52 Law and Society Review 871 (December 2018) (References) (20 Footnotes) (Full Document)
We investigate an unexplored aspect of the U.S. Supreme Court confirmation process: whether questioning senators treat female and minority nominees differently from male and white nominees. Applying out-group theory, we argue that senators will ask female and minority nominees more questions about their “judicial philosophies” in an effort to determine their competence to serve on the Court. This out-group bias is likely to be exacerbated for nominees not sharing the senator's political party. Our results do not support racial differences, but they do provide strong evidence that female nominees receive more judicial philosophy-related questions from male senators. This effect is enhanced when the female nominee does not share the partisan affiliation of the questioning senator. Together, these findings indicate that female nominees undergo a substantively different confirmation process than male nominees. We further find that this effect may be most intense with nominees like Justice Sotomayor, whose identities align with more than one out-group.
Biased and discriminatory behavior toward gender, racial, and ethnic minorities continues to affect many sectors of American society today. The 2016 U.S. presidential election provides the most recent high profile example of this phenomenon. Vigorous debate erupted throughout the campaign about the ways in which gender shaped public perceptions of both candidates, and the extent to which Hillary Clinton was harmed or helped by being the first woman nominated for president by a major political party. Underlying this public debate is a rich academic literature, exploring how race and gender affect the way we select and assess public and private leaders, including politicians, judges, lawyers, business leaders, university deans and professors, and many others (e.g., Boddery et al. 2016; Christensen et al. 2012; Collins et al. 2017; Haynie 2002; Lennon 2013).
Despite the abundance of work in this area, very little of it considers the role of race and gender bias concerning the selection and evaluation of U.S. Supreme Court nominees. Nonetheless, we have good reason to expect that even for the highest court in the United States, female and racial minority nominees will face similar challenges as females and minorities in other professions. As revealed in many other settings, implicit and explicit biases among interviewers impose obstacles for female and minority candidates that do not exist for their similarly situated white, male counterparts (e.g., Biernat and Kobrynowicz 1997; Eagly and Karau 2002). While the female or minority candidate may ultimately get the job or promotion she seeks, she often must first overcome a “presumption of incompetence” that frequently follows female and minority candidates, including those that are objectively as or more qualified than their white, male competitors.
The U.S. Supreme Court's selection process provides an ideal arena for further assessing and documenting the obstacles that even highly successful female and minority candidates may face. Selection as a modern U.S. Supreme Court justice requires navigating the Supreme Court confirmation hearings held before the Senate Judiciary Committee. The questions asked and answers given (or not given) at the hearings can affect the fate of the nominee in the full Senate (Collins Jr. and Ringhand 2013a; Farganis and Wedeking 2014), shape the ideological orientation of the Supreme Court (Epstein and Segal 2007), and contribute to our understanding of what is and is not “settled” as a matter of contemporary constitutional law (Collins Jr. and Ringhand 2013a).
The Supreme Court confirmation hearings also have symbolic value. The U.S. Supreme Court is one of the least public political institutions in the United States and much of its work occurs far outside of the public's eye. The confirmation hearings provide a unique and very public view into this otherwise illusive entity. Indeed, these hearings are a national event, attracting substantial media attention, reporting, and gavel-to-gavel television coverage (Bybee 2011; Collins Jr. and Ringhand 2013a; Farganis and Wedeking 2014; Vining Jr. 2011). As such, they provide a salient and unique opportunity for Americans to directly observe nominees and, in many cases, develop opinions about the nominees and the Court (Gimpel and Wolpert 1996). Simultaneously, the hearings allow average citizens to see and learn from how the nominees are treated and assessed by other high-profile elites--in this case, the senators serving on the Senate's Judiciary Committee.
The implications of a disparate and biased Supreme Court confirmation process are vast. Public displays of bias against women and people of color in positions of power may discourage ambition among young lawyers who perceive bias-based barriers to success (Williams 2008) or aggravate a sense among women and people of color that our governing institutions do not represent them or understand their concerns (Campbell and Wolbrecht 2006). Further, a biased Supreme Court confirmation process may perpetuate negative stereotypes about women and minorities and cast doubt on their ability to serve in elite institutions like the Supreme Court. By shaping negative perceptions of a future justice's fitness to serve on the Court, senatorial bias toward certain nominees also could contribute to increased skepticism among the general public regarding that nominee's qualifications. It can also foster a culture of incivility in which advocates and other justices demonstrate disrespect for and call into question the credibility of their nontraditional colleagues (Feldman and Gill 2016; Jacobi and Schweers 2017). Thus, while Senate Judiciary Committee members may not be aware of their biases and may not be “consciously disrespectful,” their behavior nonetheless could have “the ‘real world’ consequence of delegitimizing knowledge, experience, and ultimately, leadership” (Han and Heldman 2007: 22). Evidence of bias in such a high profile setting also could harm the public's perceptions of the legitimacy of both the Supreme Court and the confirmation process itself (e.g., Gibson and Caldeira 2009), while the lack of such a finding would provide a noteworthy exception to the large literature documenting such bias in other settings.
Drawing on data from U.S. Supreme Court confirmation hearings from 1967 to 2010, we evaluate whether female and racial minority Supreme Court nominees are treated substantively differently than white, male nominees when they appear to testify before the Senate Judiciary Committee. We find that female nominees do in fact face a different confirmation context than do male nominees. Specifically, they receive a substantially higher proportion of questions that call for them to explain their judicial philosophies, questions that, as we explain, engage the core professional competency expected of Supreme Court justices: the ability to “correctly” interpret the U.S. Constitution. This effect is particularly strong when the female nominees do not share the partisan affiliation of the questioning senator. We do not find a similar empirical result for nonwhite nominees, although the one female, racial minority nominee in our data--Sonia Sotomayor--faced a substantial amount of judicial philosophy questioning relative to earlier nominees. While limited by the small number of female and racial minorities nominated to the U.S. Supreme Court thus far, these findings provide a point of departure for future work examining the barriers faced by nontraditional legal and political officials, including lower court judges, bureaucrats, lawyers, and politicians.
[. . .]
[. . .]
The female nominees who sit before the Senate Judiciary Committee are among the most accomplished lawyers of their respective generations. Nonetheless, as our results reveal, these female nominees are often subjected to a very different confirmation process than are their male colleagues. As predicted by out-group theory and prior studies of gender bias in hiring, male senators grill female nominees on their judicial philosophies--questions representing the core professional skill expected of U.S. Supreme Court justices--more so than they press male nominees. Further, this questioning comes disproportionately from opposite party--and presumably skeptical-- senators. This effect was most acute for Sonia Sotomayor, although our statistical results do not indicate that the other minority nominees face a similarly difficult set of questions compared to white nominees. Finally, our preliminary descriptive analysis of the small number questions asked by female senators revealed that female senators, on average, tend to ask nominees, and particularly male nominees, a lower percentage of judicial philosophy questions than male senators.
The fact that female nominees are very publicly subjected to a different type of confirmation process by male senators than are male nominees serves to perpetuate negative stereotypes that male judges are more believably prepared to serve in the judiciary and, specifically, as Supreme Court justices. As more and more female and minority nominees participate in the confirmation process, this differential treatment could cast the legitimacy of the process and the Court itself into doubt, particularity if there is not a corresponding increase in female and minority senators (another high-profile and strongly white, male stereotyped profession) capable of reducing the out-group dynamics.
As the first study to rigorously explore the differential treatment of female and minority Supreme Court nominees at the hearings, this paper opens the door to a wide array of future research. Perhaps most obviously, it will be important to apply the theory and methods advanced here to the selection of other judicial and political actors. Future study of judicial nominees to the federal district courts and courts of appeals and executive branch nominees within the Department of Justice (such as U.S. Attorneys), for example, offers great potential to examine a larger number of female and racial minority nominees who testify before the Senate Judiciary Committee (e.g., Dancey et al. 2011; Dancey et al. 2013; Martinek et al. 2002; Scherer 2005; Steigerwalt 2010). Nominees to these institutions undergo somewhat similar scrutiny from the Judiciary Committee and tend to be more diverse in terms of their race and gender. They may also allow for a closer investigation into whether female, racial minority nominees face particularly intense scrutiny from the Judiciary Committee. We note, however, that this future area for research does not come without its own difficulties. Nominees to the lower federal courts and Department of Justice posts generally face a shorter and less salient confirmation process than Supreme Court justices. For example, lower federal court nominees' hearings typically last just a few minutes (O'Brien 2002), with the average federal district court nominee receiving only 6.9 questions from the Senate Judiciary Committee (Dancey et al. 2013: 799). By comparison, Supreme Court nominees frequently testify for days with each nominee receiving an average of 717 questions (using the data in Figure 1 from 1967 to 2010).
It also will be useful to explore whether social role stereotypes (Eagly et al. 2000) lead female and minority nominees to receive heightened questioning from senators beyond those questions involving their judicial philosophies. For example, black politicians are stereotyped as being empathetic and disproportionately good at handling issues of concern to the black community like civil rights and affirmative action while, at the same time, being perceived to be less strong than other politicians on issues related to the economy, military and national security, and taxes (Schneider and Bos 2011: 224, 229). Whether these stereotypes hold for an individual or not, the theory in this area expects that out-group members are judged consistently with the stereotypical, homogeneous group expectation (Biernat and Kobrynowicz 1997). It is therefore plausible that senators might use questions about crime and criminal justice as a proxy for matters relating to racial issues, pressing minority nominees on this issue (e.g., Ringhand Collins Jr. 2011).
As our study indicates, the examination of the role of race and gender in the selection of legal and political actors continues to be relevant and important. We hope that our design and findings help to foster a robust line of inquiry into this topic across institutions, jurisdictions, decision-making stages, and time.
Christina L. Boyd is an Associate Professor of Political Science at the University of Georgia.
Paul M Collins, Jr. is Professor and Director of Legal Studies in the Department of Political Science at the University of Massachusetts Amherst.
Lori A. Ringhand is the J. Alton Hosch Professor of Law at the University of Georgia, School of Law.