Research Reveals: The Process of Becoming a Judge is Different for Women

by Angela N. Johnson

Margaret Williams surveyed Texas judges and lawyers and found significant differences between men and women, both for those in the judiciary and those who could be members of the judiciary.  Moreover, informal requirements for attaining a seat on the bench could be a factor keeping qualified candidates from seeking a judgeship (M. S. Williams, In a Different Path: The Process of Becoming a Judge for Women and Men 2006, 104). Williams looks beyond the selection system to gain an understanding of how the process of becoming a judge is different within the groups running under that selection system, which provides a more individual-level explanation. Moreover, Williams argues that studies on selection “conclude that while the number of women in the eligible pool of judges and the size of court affect women’s representation, selection systems do not” Id. at 105-106 citing Elliot Slotnick Judicial Selection Systems and Nomination Outcomes: Does the Process Make a Difference? (1984).

Williams lays out three potential influences (based on literature on representation). First, representation can be explained by prior political experience of the individual.  Second, ambition is critical to this prior political experience.  Third, either prior experience running for office or prior experience holding office can make a potential candidate more likely to hold another office (candidates both know the process better and are often viewed as more viable by those selecting nominees for office) Id. at 106. Moreover, Williams notes two theoretical expectations: First, that attorneys who work in specific areas of law may be more likely to become judges when that seat deals with the area in which they hold expertise. For example, an attorney with family law experience may feel more comfortable seeking a family court position. Second, ties to the community affect representation. According to Williams, because state-level judicial elections tend to be low information in nature and the cost of judicial races in Texas has increased over 450 percent in the last 25 years, the “greater support base a person has prior to deciding to run for office the more likely they are to win.  Having ties to the community can help establish the necessary support base” Id. at 106. Additionally, having ties to the community allows candidates to have greater name recognition and show concern for the issues most important to the community.  Candidates with ties to the community are also more likely to be “active in party organization and are inherently more likely to be tapped when an office opens, or they may have greater access if they decide to run on their own” Id. at 106.

According to Williams, demographic characteristics affect representation and gender is particularly important.  While many studies (of legislative elections) conclude that women win as often as men (after controlling for incumbency), a test of this assumption has not been made for judicial office” Id. at 160 citing Barbara Burrell’s A Woman’s Place is in the House (1994).

I found the results of Williams’ survey extremely insightful.  For example, all respondents were asked “Who has a more difficult time becoming a judge?” 27% of women and just 17% of men said that women have more difficulty.  When asked, “Who faces more barriers in a legal carrier?” 70% of women and 40% of men said women face more barriers. I also found it interesting that female judges averaged 22.6 years since graduating law school and the male judges averaged 29.66 years.  The average age of the female judges was 50.37 and the average age of the male judges was 55.73.  A similar age gap was found in the non-judge attorney group.  According to Williams, these gaps are not unnatural because they reflect the fact women are “typically newer to the legal profession” Id. at 112.  Of those judges who worked in private practice, 26% of women worked in a firm of 9 or less attorneys whereas 43% of male judges worked in similar settings.  17% of both the male and female judges worked in government prior to their current position.  Interestingly, of the group of non-judge attorneys, the female attorneys were more likely than the male attorneys to work in government. Women averaged 13.42 hours per week in court and men averaged 12.03 hours. According to the results, “A greater proportion of the female judges serve on appellate courts.  Of those, a greater proportion were elected to the bench, while men were more often appointed.  Of those with experience serving on a lower court, women were more often initially appointed, while men were more often elected.  Women judges with prior experience not on a general trial or appellate court were again ore often appointed to that position, while men were more likely elected.  Thus, it appears that female judges initially join public life by being appointed, while men are initially elected.  However, once participating in public life, women advance to more prestigious positions by elections, while men advance by appointment” Id. at 110-111.  Williams acknowledges a potential problem in her sample: that just fifteen female appellate judges were included.

In terms of political affiliation, Williams found that more male judicial respondents were active in state and local parties than the female judicial respondents. A greater number of the female judicial respondents graduated from a Texas high school, which Williams counts toward having a grater ties to the community. The female judicial respondents were more often married and more often from racial minorities.  Whereas of the non-judge attorney group, more female attorneys were single or divorced than the male attorneys.  Similar to studies of legislative elections, the male attorney respondents were more often encouraged to run for judge than the females.

So what makes the currently serving judges different than the non-judge attorney group?  According to Williams, “those who serve on the judiciary have different careers than those who do not.  Judges appear to be more ambitious to hold public office than the average attorney.  Not only do those on the judiciary have prior experience running for office, they are also more likely to have experience holding another political office.  Part of the reason those who serve on the judiciary may be more likely to hold office is that they are more often encouraged to run than other attorneys” Id. at 112. It is important to note, however, that Williams’ two groups (the currently serving judges and non-judge attorneys) reflect the easiest composition of the two groups – but a more ideal study (if data were available) would be of one group of currently serving judges and another group of non-judge attorneys who have indicated they have the desire to seek a judgeship (and/or have already actively sought a judgeship).  It is possible that some of the non-judge attorneys surveyed have not sought many of the opportunities or “paths” as the currently serving judges due to their lack of desire to travel the apparent “judge-path.” Williams also found that the judges were more likely to be active in the major parties at the state and local levels, so it is possible their affiliation helped their attainment of a judicial seat.  The judges were also more likely to have attended a Texas law school and high school – giving them more opportunities to tap into any judicial pipeline that may exist within the state all the while giving voters a perception of being tied to the state. Judges also tended to be much older than the average attorney respondent. Familial influences (new marriage, children) may play a role in this.  Not surprisingly, judges were more likely to identify with the major political parties.  Yet despite their strong political affiliation, judges are more moderate in their ideology than the average attorney Id. at 113. Of course this more likely comes into play in jurisdictions of partisan elections where parties endorse judicial candidates.  (Williams does not mention executorial merit appointment systems and whether party affiliation matters in those instances).

Source Citation: Williams, Margaret S. “In a Different Path: The Process of Becoming a Judge for Women and Men.” Judicature 90, no. 3 (November-December 2006): 104-113.

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