Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts
Peresie, Jennifer L., The Yale Law Journal
CONTENTS INTRODUCTION I. PAST EMPIRICAL FINDINGS A. Direct Effect of Gender on Judging B. Indirect Effect of Gender on Judging II. DATA A. Overview of the Data Set B. Dependent and Independent Variables C. Control Variables III. REGRESSION RESULTS A. Gender Differences in Voting Behavior B. Impact of Female Judges IV. POSSIBLE EXPLANATIONS FOR THE EFFECT OF GENDER ON PANEL DECISIONMAKING A. Deliberation B. Deference C. Logrolling D. Moderation CONCLUSION APPENDIX A wise old man and a wise old woman reach the same conclusion.... (1) [Female judges] bring an individual and collective perspective to [their] work that cannot be achieved in a system which reflects the experience of only a part of the people whose lives it [a]ffects. (2)
This Note provides data to illuminate whether and how the presence of female judges on three-judge federal appellate panels affects collegial decisionmaking in a subset of gender-coded cases--those involving claimants alleging sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. (3) An empirical analysis of 556 federal appellate cases decided in 1999, 2000, and 2001 reveals that judges' gender mattered to case outcomes. Though plaintiffs lost in the vast majority of cases, they were twice as likely to prevail when a female judge was on the bench.
This Note has three goals. First, it contributes to the literature on the role of gender in individual judicial decisionmaking. I show that for at least two types of cases--Title VII sex discrimination and sexual harassment--a significant correlation existed between gender and individual federal appellate judges' decisions. In my data set, female judges were significantly more likely than male judges to find for plaintiffs. Second, the Note begins to illuminate the impact of gender on panel decisionmaking, by showing that the presence of a female judge significantly increased the probability that a male judge supported the plaintiff in the cases analyzed. This analysis reaffirms the importance of collegiality in appellate courts, (4) thus distinguishing the Note from past literature, which focused almost exclusively on male/female differences. Third, the Note proposes several possible explanations for how the presence of a female judge might increase the likelihood that a male judge will support the plaintiff in gender-coded cases.
Part I reviews past empirical findings on the direct and indirect effects of gender on judging. Part II describes my data, and Part III reports the findings of regression analyses. Part IV proposes four possible mechanisms for the indirect effect of gender on collegial decisionmaking that I observed: deliberation; male judges' deference to female judges; logrolling, or strategic bargaining; and moderation of male judges' anti-plaintiff preferences. The Conclusion argues that the effects I observed should inform future debates about gender diversification of the federal appellate bench.
I. PAST EMPIRICAL FINDINGS
Some scholars expect that increasing the number of female judges will make courts more receptive to the arguments of claimants in gender-coded cases like the Title VII cases analyzed in this Note. (5) One form of this argument goes so far as to expect female judges to "seize decision-making opportunities to liberate other women" in deciding cases. (6) Thus far, the validity of arguments that gender affects case outcomes is uncertain because the literature has produced inconsistent empirical findings. In this Part, I detail past research on the direct and indirect effects of gender on judicial decisionmaking.
A. Direct Effect of Gender on Judging
Previous empirical studies examining whether male and female judges decide cases differently have produced conflicting results. …