The Impact of Diversity

February 10, 2010 1:01 PM

"Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find," is the headline of a February 6 ABA Journal article. The article refers to two studies reported in law reviews, linked here in pdf format, on the effect of gender and race on decisionmaking in harassment and discrimination cases.
posted by bearwife (31 comments total)

Is anyone surprised?
posted by delmoi at 1:10 PM on February 10, 2010 [1 favorite]

Based on the Bush v. Gore definition of equal protection I assume this means that we have to remove all judges who aren't male and white to ensure that all judicial decisions are normalized.
posted by Babblesort at 1:15 PM on February 10, 2010

The interesting part of the YLJ study, which is five years old, is that not only do female judges rule differently from male judges (even controlling for political affiliation), but male judges on mixed-gender panels rule differently than they do on all-male panels.
posted by amber_dale at 1:20 PM on February 10, 2010 [1 favorite]

IMO the post buries the lede:

University of Pittsburgh School of Law Professor Pat K. Chew, who co-authored the racial harassment study, said she found “the rule of law is intact” in the cases she reviewed. Judges—no matter which side they ruled for—took the same procedural steps to reach their decisions, she said.
posted by Inspector.Gadget at 1:37 PM on February 10, 2010 [3 favorites]

So help me christ if one of you "Film at Eleven"'s this...

Or any of the other usual "jaded" crap.

This is important, let's try to treat it with some respect please?
posted by Senor Cardgage at 1:38 PM on February 10, 2010 [2 favorites]

(and I don't think the following paragraph backs off from that point, but reconciles it with the "duh" reaction seen above)
posted by Inspector.Gadget at 1:38 PM on February 10, 2010

Based on the Bush v. Gore definition of equal protection I assume this means that we have to remove all judges who aren't male and white to ensure that all judicial decisions are normalized.

No, just assign all cases to same-race judges. The immediate repercussion will be that whites get their cases tried the next day, and blacks will be on bail for thirty years. Having your case in limbo sucks, but the extra years of freedom would go a long way to redress the imbalance in conviction rates and sentences.

^{Notice here I'm saying that separate = equal. Didja catch that?}
posted by clarknova at 1:53 PM on February 10, 2010 [2 favorites]

This study was exactly what Justice Sotomayor was referring to when she said that her being a Latina judge was important.
posted by hydropsyche at 2:42 PM on February 10, 2010 [1 favorite]

Suddenly I have hope for the Prop 8 case.
posted by waraw at 3:01 PM on February 10, 2010

While the results are not surprising, here's the elephant in the room with this sort of study: if these sorts of study are taken as legitimate, what is the applicability? Can we argue from this that a greater percentage of women and minorities need to be on the bench, not just out of a need for fair judicial representation, but also for a full representation of judicial ideologies? And if so, wouldn't it be just as legitimate for someone to argue against women and minorites on the bench, not because of simple racisim or sexism, but because of an interest in keeping the law consistent and predictable?

This is a double-edged sword, I guess is what I'm saying.
posted by Navelgazer at 3:55 PM on February 10, 2010

To stave off possible misunderstanding... My quip about Bush v. Gore was trying to point out what Navelgazer spelled out nicely here.

It was a fully HAMBURGERED reductio ad absurdum suggestion that the findings naturally lead to the latter proposition Navelgazer described. The proposition I do NOT advocate.
posted by Babblesort at 4:34 PM on February 10, 2010

And if so, wouldn't it be just as legitimate for someone to argue against women and minorites on the bench, not because of simple racisim or sexism, but because of an interest in keeping the law consistent and predictable?

Why must the consistent, predictable law be that of white men only on the bench? Perhaps we should argue against having white men as judges.
posted by jeather at 4:47 PM on February 10, 2010

The differences outlined in the studies bother me, which is why I put up the post. I don't have a hard time with the idea that women judges might "get" gender based claims or that African American judges might "get" race based claims. I do feel very disturbed that, per the studies, judges who are Hispanic, Asian, white and/or male apparently don't, or don't as much as they should.
posted by bearwife at 5:05 PM on February 10, 2010

This study was exactly what Justice Sotomayor was referring to when she said that her being a Latina judge was important.

And exactly why all the white Republican gentlemen in the Senate got the vapors when she said it.
posted by one_bean at 5:09 PM on February 10, 2010 [1 favorite]

I do feel very disturbed that, per the studies, judges who are Hispanic, Asian, white and/or male apparently don't, or don't as much as they should.

The study didn't purport to measure how often a party "should" be winning, and I don't even know how you'd measure that.
posted by planet at 5:43 PM on February 10, 2010

(From the article) In federal racial harassment cases, one study (PDF) found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.

(From bearwife) I do feel very disturbed that, per the studies, judges who are Hispanic, Asian, white and/or male apparently don't, or don't as much as they should.

Well, who do we think is right? Are the African-American judges biased in favor of finding harassment, finding it where it didn't legally take place? Or are the white judges biased against it, making procedural and evidence rulings that undermine the legal identification of harassment? Or, does some other effect explain the differences?

Second, are any among these groups more often reversed on appeal than others? That would be an interesting point toward discovering the "accuracy" of a given ruling, and considering whether it reflected bias. Granted, reversals are only stringently handed out, but its a discussion point.

I don't take credit for either of those questions, both were raised in the comments on the ABA article. But as discussion points I thought I'd bring them over here.
posted by bunnycup at 5:45 PM on February 10, 2010

Perhaps we should argue against having white men as judges.

Which makes exactly as much sense if not more than the alternative. I'm not trying to promote this sort of argument, but rather just mention that it can be dangerous when legitimized by either side. It muddies up the waters in a bad way.
posted by Navelgazer at 5:47 PM on February 10, 2010

I didn't think you were promoting the argument, Navelgazer. And I don't think many people are actually suggesting that white (straight) men be barred from the judiciary. But it's telling that *their* biases are considered normal, usual, unbiased, objective, while it's those pesky women/Hispanics/Blacks/etc who are all biased. (I am not referring to this thread in particular, but discussions I have heard in general.)

The argument is a poor argument no matter what single group you want to be the judges, but it's only one group that is ever seriously suggested as the single group that is chosen.
posted by jeather at 5:56 PM on February 10, 2010

Second, are any among these groups more often reversed on appeal than others? That would be an interesting point toward discovering the "accuracy" of a given ruling, and considering whether it reflected bias. Granted, reversals are only stringently handed out, but its a discussion point.

It would be interesting to check the racial/gender makeup of the reversing judges in such cases and the similarity/difference to the race and gender of original trial judges. My gut hunch, with no support whatsoever, is that appeals judges who are appointed rather than elected will be more conservative in the true meaning of the term (not politically Republican), but whether that would play out as refusal to overturn or adjudicating "more like white men" isn't as obvious to my gut.
posted by immlass at 5:59 PM on February 10, 2010

This study was exactly what Justice Sotomayor was referring to when she said that her being a Latina judge was important.

She didn't just say it was important -- I think that would have been relatively uncontroversial. She actually said her race and gender made her better than other judges. That was the eye-popping part. Can you imagine if I said I hoped that, having had the experiences of a white male, I would, more often than not, write better code than a programmer who didn't have those experiences?
posted by Xezlec at 6:23 PM on February 10, 2010

I do feel very disturbed that, per the studies, judges who are Hispanic, Asian, white and/or male apparently don't, or don't as much as they should

But we don't know the optimum outcome in any case (and consequently generating a prediction about the overall optimal level of avoiding over/underdeterrence is impossible), so we don't know who "gets" what. If the outcome is consistently wrong (from the perspective of a legislatively adequate consensus) then it is time to rewrite the law, not time to micromanage judges or blindly impugn motives or internal decisions unknowable except in the most abstract, vague way. I say all this as someone who believes in the probability of arriving at the objectively right answer in many cases, FWIW.

Second, are any among these groups more often reversed on appeal than others? That would be an interesting point toward discovering the "accuracy" of a given ruling, and considering whether it reflected bias.

This standard only works if you believe that the SCOTUS is always right on the law (as a matter of interpretation or other modes of decision). It's an extension of the 9th Circuit problem.
posted by Inspector.Gadget at 6:43 PM on February 10, 2010

Here is the full paragraph from Justice Sotomayor's talk that contains that line. The controversial line is a direct response to a statement made famous by Justice O'Connor. She was referring specifically to making decisions related to racial and gender disparities. In its context, her words are a lot less loaded.

In our private conversations, Judge Cedarbaum has pointed out to me that seminal decisions in race and sex discrimination cases have come from Supreme Courts composed exclusively of white males. I agree that this is significant but I also choose to emphasize that the people who argued those cases before the Supreme Court which changed the legal landscape ultimately were largely people of color and women. I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, 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.

What she said boiled down to: I would hope that a wise person who has direct experience of a situation can make better decisions about that situation than one who has only indirect experience of the situation.
posted by Babblesort at 7:28 PM on February 10, 2010 [2 favorites]

Can you imagine if I said I hoped that, having had the experiences of a white male, I would, more often than not, write better code than a programmer who didn't have those experiences?

well, if the context of being a white male meant "more likely to get better math and science teachers/classes earlier and more frequently than anyone else," I'd be disappointed if you didn't.

I'm not saying that statement is true universally, but look around your computer room and tell me who all's in it?
posted by toodleydoodley at 8:10 PM on February 10, 2010

Can you imagine if I said I hoped that, having had the experiences of a white male, I would, more often than not, write better code than a programmer who didn't have those experiences?

If white men were an historically discriminated against group and if computer programming required subjective ethical judgment which directly affected the lives of other people and was strongly affected by ones own life experience, your comparison would be at least a little bit valid.
posted by hydropsyche at 8:30 PM on February 10, 2010 [1 favorite]

Navelgazer: wouldn't it be just as legitimate for someone to argue against women and minorites on the bench, not because of simple racisim or sexism, but because of an interest in keeping the law consistent and predictable?

IIRC from reading Fred Strebeigh's Equal: Women Reshape American Law (here's an interview with him), white male judges have used that argument in landmark cases about sexual harassment, pregnancy discrimination, violence against women, etc, that threatened the status quo. "Acknowledging the merits of this plaintiff's argument would have far-reaching consequences that would undermine the foundations of our legal system, and that's unacceptable" kind of thing. Not usually as directly as that, but sometimes.

It's "not because of simple racism or sexism, but because of an interest in keeping the law consistent and predictable," in the same way that the Civil War was precipitated not by slavery, but rather by states' rights, as if slavery had nothing, nothing at all, to do with any of those rights.
posted by cybercoitus interruptus at 11:15 PM on February 10, 2010 [3 favorites]

well, if the context of being a white male meant "more likely to get better math and science teachers/classes earlier and more frequently than anyone else," I'd be disappointed if you didn't.

I'm not saying that statement is true universally, but look around your computer room and tell me who all's in it?

My workplace is a special case due to special requirements, but in school, the overwhelming majority of my classmates were from Taiwan, South Korea, or India. Occasionally, as the token white guy, I was even asked questions along the lines of "why are there so few of you guys in your own schools?"

If white men were an historically discriminated against group and if computer programming required subjective ethical judgment which directly affected the lives of other people and was strongly affected by ones own life experience, your comparison would be at least a little bit valid.

Wait, so you actually think that being from a "historically discriminated against" group makes a person better at being impartial? Why?
posted by Xezlec at 8:59 PM on February 11, 2010

Wait, so you actually think that being from a "historically discriminated against" group makes a person better at being impartial? Why?

Impartiality is often striven for, rarely defined in context, and even more rarely achieved.

A judiciary that has only one point of view in its collective mind isn't very impartial. The more different points of view applied to the law (with the caveat of legal education, obviously), the more likely you are to get a collectively objective judiciary. To the extent that people judge subconsciously on race, gender, SES, etc.--and they do--broadening the pool of people who makes those judgements helps broaden the collective judiciary's mind.

"We have both kinds of music, country and western" isn't impartial.
posted by immlass at 8:57 AM on February 12, 2010

Wait, so you actually think that being from a "historically discriminated against" group makes a person better at being impartial? Why?

It doesn't make them any worse at being impartial than being from groups that aren't historically disciminated against.
posted by jeather at 9:31 AM on February 12, 2010

A judiciary that has only one point of view in its collective mind isn't very impartial. The more different points of view applied to the law (with the caveat of legal education, obviously), the more likely you are to get a collectively objective judiciary.

"Collectively objective"? I guess that sort of works for the Supreme Court, but other courts don't have a panel of judges. And even then, her statement was about her personally making better judgments, not her being part of a group that would make better judgments because she was a part of it.

It doesn't make them any worse at being impartial than being from groups that aren't historically disciminated against.

I never implied that it did. Her claim was that it made her a better judge. My claim is that it has no effect, at best.
posted by Xezlec at 8:05 PM on February 12, 2010

"Collectively objective"? I guess that sort of works for the Supreme Court, but other courts don't have a panel of judges.

Some circuits/districts have panels of judges--for instance, the federal circuits--and almost all courts have chains of appeal. It's not that unusual for more than one judge to hear parts of the same case.

I'd say in Sontomayor's case her life experience, primarily her sex, race, and SES during her formative years, gives her a different perspective on approaches to legal issues. It's a better perspective because to the extent that the perspective of the federal bench is generally limited in terms of race, sex, and class/SES, broadening the life experience of the team on the bench is a good thing. To the extent that, to slice characteristics a little differently, we now have 2/3 of the Supreme Court making decisions informed by either cultural or religious Roman Catholicism, that's not so great (any more than it would be if six Justices were all of any other single religious/religio-cultural heritage).
posted by immlass at 9:35 PM on February 12, 2010

Well, fair enough.
posted by Xezlec at 7:05 AM on February 13, 2010