Critical Perspectives on Gender and Judging

I couldn’t agree more with Kenney’s introduction to the section of “Critical Perspectives on Gender and Judging” in the 2010 (Volume 6) edition of Politics and Gender when she stated that there is an “absence of a gender analaysis of our third branch of government.  Despite the fact that most states elect their judges, most political scientists ignore judicial races, just as most feminist groups that seek to expand women’s political power (such as Emily’s List) do not endorse women for judicial races” (Kenney 2010).  In seeking research materials on this topic, I feel I can attest that Kenney’s assertions about the lack of attention paid to this topic are spot-on.  While there seems to be plenty of scholarship devoted to women’s candidacy for legislative races and efforts to increase the number of women in Congress, little is available on women as judicial candidates or the impact women have on the judiciary. This is surprising because other political scientists have shown that state judicial races share many of the common (downfalls) characteristics of other legislative races.

Within the small amount of scholarship devoted to female judges’ decision-making, results have been conflicted.  While some studies show that gender makes a difference in sex discrimination and divorce cases, other studies suggest gender has no effect Id. at 436.  Interestingly, “Justices O’Connor and Ginsburg reject the “different voice” argument but remain adamant that gender matters and we need more women on the bench” Id. at 437.

In declaring a need for continued (and increased) scholarship, Kenney writes, “Those of us who understand law, courts, judging, and judicial selection have a special obligation to speak to the issues of the day.  Who is sounding the alarm that only 22% of President George W. Bush’s appointments to the federal bench were women compared to 28% of President Bill Clinton’s?” Id at 438 citing Diascro, Segal, and Spill Solberg, 2009). “Who’s is protesting that Idaho and Indiana’s supreme courts no longer have even one woman justice?” Id. at 438.  Kenney argues that the groups of women lawyers, women judges, nor groups aiming to recruit women to public office are trumpeting the importance of increasing the number of women in the judiciary.  Additionally, more support must be given to women judges, who “suffer from a double standard of judicial behavior.  Women earn disapproval for behaviors (even if much less severe) that pass unnoticed in men” Id. at 439.  Kenney points to Justice Sotomayor’s critics charging her with being a “mean interrupting bully – yet analysis showed her to interrupt no more than her current colleagues, and though she asked sharp questions in oral arguments, her tone was much more respectful and less sarcastic than that of Justices John Roberts and Antonin Scalia” Id. at 439.

Source Citation: Kenney, Sally J. “Critical Perspectives on Gender and Judging.” Politics & Gender 6 (2010): 433-441.

 

Women in the Federal Judiciary: Still a Long Way to Go

According to the National Women’s Law Center, though the proportion of female law students is increasing, “the number of women in the federal judiciary has stagnated” (National Women’s Law Center 2011).  This is concerning because when women are “fairly represented on our federal courts, those courts are more reflective of the diverse population of this nation” Id. (Note, that this article is aimed at the federal court, but it is as equally important that women are represented in state courts, too!) Studies have shown that women judges “can bring an understandig of the imipact of the law on the lives of women and girls to the bench, and enrich courts’ understanding of how best to realize the intended purpose and effect of the law that he courts are charged with applying.  For example, one recent study demonstrtaed that male federal appellate court judges are less likely to rule against plaintiffs bringing claims of sex discrimination, if a female judge is on the bench” Id., citing Christina L. Boyd, Lee Epstein, and Andrew D. Martin’s Untangling the Causal Effect sof Sex on Judgeing, 54 AM. J. Pol. Sci. 389 (2010), available at http://epstein.law.northwestern.edu/research/genderjudging.pdf.  Also see Jennifer Peresie’s Female Judges Matter, which studies Title VII sex discrimination cases on three-judge appellate panels.

Current Statistics on the Federal Judiciary:

1. Though the current makeup of the United States Supreme Court contains the highest proportion of women in history (3 of the 9 justices are women), only four of the 112 justices ever to serve on the highest court in the land have been women.
2. Forty-nine of the 162 (30.2%) active judges currently sitting on the thirteen federal courts of appeal are female. But when broken down by circuit, a disparity becomes clear:
   1. The 8^th Circuit has only one female judge among its eleven members, who is the only woman ever to have been appointed to that court.
   2. Women comprise just 10% of the judges serving on the 10^th Circuit.
   3. Approximately 28% of the active United States district (or trial) court judges are women.
   4. The numbers are even smaller for women of color; there are 58 women of color serving as active federal judges across the country: 32 African American women, 20 Hispanic women, and six Asian-American women.  There are no Native American women among the over 750 active federal judges across the country.  There are just 9 women of color on the U.S. courts of Appeals – four of whom sit on the 9^th Circuit, two on the DC Circuit, and one on each of the 1^st, 4^th, and 7^th Circuits.  This means there are eight federal courts of appeals without a single active minority woman judge.
   5. Of President Obama’s 117 judicial nominees to date (including his nominees to the Supreme Court), 53 are women. 49% of his confirmed nominees have been women.

Source Citation: National Women’s Law Center. “Women in the Federal Judiciary: Still a Long Way to Go.” http://www.nwlc.org. March 8, 2011. http://www.nwlc.org/resource/women-federal-judiciary-still-long-way-go1 (accessed March 21, 2011).

Surprising Research on Women Lawyers’ Likeability v. Competence

The authors open their article arguing that although women in politics “seem to face a choice of being seen as likeable or as competent, but not as both . . . [women] lawyers do not seem plagued by this same double bind . . . there is no difference between how female and male lawyers are perceived” (Schneider, et al. 2010).  The authors reflect on the 2008 “Palin v. Clinton” “Likeable v. Competent” model as an example of the struggles women politicians have in balancing competent but “hard” and unlikeable with not competent, but good looking and likeable (they can’t have it both ways, the authors argue).  Part of the problem stems from socially constructed (and maintained) steretypes of what is feminine.  According to the authors, this handicaps women who engage in assertive behaviors.  This continues despite women comprising 49.8% of the U.S. Workforce  (Schneider, et al. 2010, 367).  According to the National Association for Legal Career Professionals (NALP), the 2008 statistics show that while women make up 45.3% of associates, they only make up 18.7% of partners Id. at 368.