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Was Sonia Sotomayor right about female judges?

Friday, December 16, 2011
posted by Douglas Keene

One of our early posts on this blog was a response to the furor over the nomination of Sonia Sotomayor to the Supreme Court. Essentially, Sotomayor said that our decisions are a complex product of information and our life experiences.

We believe this too and were taken aback that so much negative press resulted from her fairly common-sense statements. It’s been a few years, so here is a reminder of what she said:

“I would hope that a wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn’t lived that life.”

So it’s a few years later. Was she right? According to some researchers looking at male and female judges–it would appear she was.  Whether you think of it as ‘wisdom’ or not, our very human judiciary evaluates issues based on the world as they understand it, not just on the law as they know it. Researchers first reviewed the literature on gender differences among judges and most prominently found that female judges tend to favor plaintiffs in sex discrimination cases. The research did not indicate whether they should have favored the plaintiff or not (i.e., if the decisions were sound ones), it simply reported who was more likely to support the plaintiff. The current researchers wanted to look at the relationship between judges’ gender and judicial quality.

They chose objective measures to assess judicial quality: opinion publication, citations by other judges and disagreements with co-partisans [i.e., members of their own political party] as metrics of judicial performance. They compared judges from three different data sets: justices on the highest courts of the 50 states from 1998 to 2000; federal appellate judges from 1998 to 2000; and federal district judges from 2001 to 2002. For the most part, gender differences were not significant. But there were a few areas where they were. All were in the state judges data set.

Female judges have weaker credentials [specifically, they attended law schools of lower rank] and less experience, but they perform about the same as male judges.

Women judges included in this research were less likely to be married than the men, and more likely to be divorced. Male judges have more children than do female judges.

Women are older than men when they graduate from law school. However, women rise more quickly to judgeship than men so they are younger than men when they first become judges.

Women show more independence than men in that they disagree with their co-partisans more often. [A copartisan is a member of the same political party.]

The researchers suggest that women serving on state supreme courts “are either able to overcome their lack of training, or that the job of being a state high court judge simply does not require skills learned in higher-ranked law schools and private practice”. They also indicate that “it is possible, as Judge Sotomayor suggested before backtracking, that women are naturally more gifted judges. The various psychological differences between men and women might favor women, so that even if women have less training and experience, they end up being superior judges. It might also be the case that women’s experiences in a gender-biased world would give female judges a distinctive perspective that enhances their judicial talents.”

We say the jury is still out. As is often the case, there is more difference between men and women in our stereotypical beliefs and assumptions than there is when we look closely at the actual data. What is positive though, is that someone used the Sotomayor controversy to examine the actual data to see that despite their often attending less prestigious law schools, women judges perform at least as well as men by most measures. Our hope is that one day soon, women will not have to have masculine sounding names (like “Jim”) to have a better chance of becoming a judge.

Choi, S., Gulati, M., Holman, M., & Posner, E. (2011). Judging women. Journal of Empirical Legal Studies,, 8 (3)


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