Difference in Judicial Discourse; Value in Exploring Role of Law Clerks

by Angela N. Johnson

Maveety’s article reviews the Sonia Sotomayor confirmation hearings and the infamous “wise Latina” exchanges that prompted concern over the possibility that judges render decisions based on their gender or world view (Maveety 2010, 453).  Moreover, this article examines differing sentiments on whether women judges view cases differently.  For example, Justice O’Connor has often said “a wise old man and wise old woman will reach the same conclusion in deciding cases” Id. at 453.  The problem, as noted by Maveety, is that there is no universal definition of “wise” and that by nature, a judges’ decision-making will necessarily be influenced by past experiences.  When Justice Sotomayor later recounted her “wise Latina” statement, she explained that “by ignoring our differences as women or men of color we do a disservice both to the law and society” Id. at 454. Justice O’Connor also changed her previous “same conclusion” statement by admitting it is “helpful to the Court to have nine members of different backgrounds and experiences and, yes, even gender.  We bring different life experiences to the task, and that’s a good thing” Id. at 455-456.  Moreover, upon her retirement, Justice O’Connor expressed disappointed that her replacement was not a female, which left Justice Ginsburg the lone woman on the bench.  While Maveety does not address the Justice O’Connor’s apparent change of heart, I have to wonder about the context of these statements.  Perhaps the previous statement made by Justice O’Connor was made during the years when it was best to defend women’s inclusion on the bench by refuting any differences in the token-number appointments.  If this is so, then it would follow that in more recent years Justice O’Connor can now embrace the benefits that women bring to the bench without facing ridicule or setting-back women’s progress.

Maveety next addresses the balancing act between a diverse court that is more likely to render split-decisions and a court that is more ideological homogenous that is more likely to render strong majority opinions.  She cites Staudt, Friedman, and Epstein’s 2008 article On the Role of Ideological Homogeneity in Generating Consequential Constitutional Decisions published in the Journal of Constitutional Law as evidence to support the notion that unified ideological rulings produce more significant rulings with greater legal policy impact rather than “muddied” or “fragmented” decisions.

A third interesting topic Maveety addresses in her article is that of the mentoring relationship between women clerks and women judges.  Though Maveety acknowledges that there is a lack of scholarship in this special mentoring relationship, she points to Judge Burnita Matthews’ habit of appointing only women law clerks. Justice O’Connor appointed a high percentage of female law clerks in comparison to her male colleagues, with the exception of Justice Harry Blackmun Id. at 459 citing Mark Brown’s Gender Discrimination in the Supreme Court’s Clerkship Selection Process. I was surprised to learn through this article that Justice Ginsburg did not select a high number of women law clerks until “somewhat later in her term of service” Id. at 459 citing Ward and Weiden’s 2006 article, Sorcerers’ Apprentices: 100 Years of Law Clerks at the U.S. Supreme Court.  Nevertheless, Justice Ginsburg has been outspoken about the need for more women on the bench, most notably when reflecting on the Safford School v. Redding 2009 U.S. Supreme Court Case which dealt with strip searches of public school students.

Studies of women law faculty have shown a link to women’s experiences in law school and the importance in mentoring for women law students, women lawyers early in the career, and for women seeking new positions within the legal field (judges, elected government positions, etc.)  In light of what we already know about the benefits of mentoring women, Maveety’s argument that women law clerks receive mentorship and encouragement by women judges makes sound sense. Women law clerks may potentially view themselves as future peers of male judges for whom they work.  Moreover, Maveety believes that examining the judge-clerk work relationship would shed light on the legal and nonlegal factors that influence a judge’s approach to decision making.  One study that focuses on the career choices of women clerks was that of Karen O’Connor and John Hermann in their 1995 article, The Clerk Connection: Appearances Before the Supreme Court by Former Law Clerks, which found that women clerks were more likely to enter academia than other high-status legal career options such as elite law firms.  Maveety also suggests that future research could show how women judges use their women clerks and if women clerks influence their judges on women’s issues.

In sum, Maveety’s review of existing literature on women’s view of whether their own decision making is different than their male colleagues, the concern of divisive opinions, and the relationship between judges and women clerks is insightful.  Her suggestions for future research into women clerks is inspiring and much needed.

As a side from this article, I think it is important to include that according to data collected by Ms. JD in the 2010 “Women in Law Review, a Gender Diversity Report,” women comprise 53.3% of all law clerks (46.9% of federal clerks and 56.1% of state clerks).

Source Citation: Maveety, Nancy. “Difference in Judicial Discourse.” Politics & Gender 6, no. 3 (2010): 452-465.

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