Sunday, August 01, 2021


Article Index

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.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law