Academic journal article The Journal of Gender, Race and Justice

Judges' Gender and Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions

Academic journal article The Journal of Gender, Race and Justice

Judges' Gender and Employment Discrimination Cases: Emerging Evidence-Based Empirical Conclusions

Article excerpt

I. INTRODUCTION

Both the legal community and society have become particularly intrigued with the topic of women judges. In part, increasing visibility and number of women judges,2 jump-started by numerous judicial appointments of women in the Carter, G.H. Bush, and Clinton Administrations, explain this interest.3 Recent high-profile events brought attention to women in political life generally. The presidential campaigns of both Hillary Clinton and Sarah Palin highlighted their remarkable, but still novel, roles as female candidates for national office. And certainly Justice Sonia Sotomayer's confirmation hearings and the uproar surrounding her "wise Latina" comment confirmed that both the gender and ethnicity of judges remain hotbutton issues.4

The increase of women on the bench has intrigued legal and social science researchers. It has prompted theoretical and empirical explorations of the importance and consequences of the increasing presence of women on the bench.5 Some have considered the symbolic value of more gender diversity in the judiciary,6 while others have noted the substantive value of women judges.7 While the symbolic value of a more diverse judiciary can be very meaningful, it is distinguishable from the substantive effect women judges may have through different interpretations of legal principles, resulting in different case outcomes.

Researchers utilizing different models of judicial decision making put forth different predictions about whether the gender of judges will make a substantive difference in case outcomes. In particular, the legalistic and professional-socialization models contrast with the realistic and personalattribution models. Those who subscribe to the legalistic model8 think that judicial decision making is largely a mechanical and essentially formulaic process, and would likely predict that judges' gender or other personal attributes are unlikely to make a difference. The professional socialization model9 further complements this legalistic model. It argues that judges, through their legal and judicial training, are repeatedly socialized to the profession's norms and that this socialization prevails over any personal attributes or experiences. Thus, a judge's gender would not likely affect the decision-making process.

In contrast, those who believe that the judicial decision-making process involves some personal discretion (realistic model)10 are more likely to predict some relationship between judges' gender and case outcomes. The personal attribution model" similarly complements this realistic model. It argues that judges do not leave their humanness at the courtroom door.12 Judges' lives, including personal attributes and experiences, consciously or unconsciously influence how they interpret case facts and legal principles.'3

This Article furthers our understanding of the substantive value of women judges by analyzing a subset of the research on this topic. It offers a macro-level review of the empirical research done on judges' gender in U.S. federal courts and how a judge's gender affects the outcomes in employment discrimination cases, a research area that has attracted considerable empirical analysis. Employment discrimination is also a major subject area of litigation in the federal courts,14 highlighting its importance and also providing ample databases of cases to study. Thus, this comparatively rich source of research makes it possible to draw conclusions with a clarity that would not be possible if we were comparing judicial decision making in diverse court venues or legal subjects.

To lay the groundwork for the macro review, this Article briefly identifies factors to consider when studying empirical research. A macro review of the empirical research on the relationship between judges' gender and the outcome in employment discrimination cases follows. This macro review is based on fourteen research studies, a surprisingly large number given the relatively short period in which researchers have actively engaged in this particular inquiry. …

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