Critical Perspectives on Gender and Judging

by Angela N. Johnson

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.



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