The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings

By Boyd, Christina L.; Collins, Paul M., Jr. et al. | Law & Society Review, January 1, 2018 | Go to article overview

The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings


Boyd, Christina L., Collins, Paul M., Jr., Ringhand, Lori A., Law & Society Review


Biased and discriminatory behavior toward gender, racial, and ethnic minorities continues to affect many sectors of American society today. The 2016 U.S. presidential election provides the most recent high profile example of this phenomenon. Vigorous debate erupted throughout the campaign about the ways in which gender shaped public perceptions of both candidates, and the extent to which Hillary Clinton was harmed or helped by being the first woman nominated for president by a major political party. Underlying this public debate is a rich academic literature, exploring how race and gender affect the way we select and assess public and private leaders, including politicians, judges, lawyers, business leaders, university deans and professors, and many others (e.g., Boddery et al. 2016; Christensen et al. 2012; Collins et al. 2017; Haynie 2002; Lennon 2013).

Despite the abundance of work in this area, very little of it considers the role of race and gender bias concerning the selection and evaluation of U.S. Supreme Court nominees. Nonetheless, we have good reason to expect that even for the highest court in the United States, female and racial minority nominees will face similar challenges as females and minorities in other professions. As revealed in many other settings, implicit and explicit biases among interviewers impose obstacles for female and minority candidates that do not exist for their similarly situated white, male counterparts (e.g., Biernat and Kobrynowicz 1997; Eagly and Karau 2002). While the female or minority candidate may ultimately get the job or promotion she seeks, she often must first overcome a "presumption of incompetence" that frequently follows female and minority candidates, including those that are objectively as or more qualified than their white, male competitors.

The U.S. Supreme Court's selection process provides an ideal arena for further assessing and documenting the obstacles that even highly successful female and minority candidates may face. Selection as a modern U.S. Supreme Court justice requires navigating the Supreme Court confirmation hearings held before the Senate Judiciary Committee. The questions asked and answers given (or not given) at the hearings can affect the fate of the nominee in the full Senate (Collins Jr. and Ringhand 2013a; Farganis and Wedeking 2014), shape the ideological orientation of the Supreme Court (Epstein and Segal 2007), and contribute to our understanding of what is and is not "settled" as a matter of contemporary constitutional law (Collins Jr. and Ringhand 2013a).

The Supreme Court confirmation hearings also have symbolic value. The U.S. Supreme Court is one of the least public political institutions in the United States and much of its work occurs far outside of the public's eye. The confirmation hearings provide a unique and very public view into this otherwise illusive entity. Indeed, these hearings are a national event, attracting substantial media attention, reporting, and gavel-to-gavel television coverage (Bybee 2011; Collins Jr. and Ringhand 2013a; Farganis and Wedeking 2014; Vining Jr. 2011). As such, they provide a salient and unique opportunity for Americans to directly observe nominees and, in many cases, develop opinions about the nominees and the Court (Gimpel and Wolpert 1996). Simultaneously, the hearings allow average citizens to see and learn from how the nominees are treated and assessed by other high-profile elites-in this case, the senators serving on the Senate's Judiciary Committee.

The implications of a disparate and biased Supreme Court confirmation process are vast. Public displays of bias against women and people of color in positions of power may discourage ambition among young lawyers who perceive bias-based barriers to success (Williams 2008) or aggravate a sense among women and people of color that our governing institutions do not represent them or understand their concerns (Campbell and Wolbrecht 2006). …

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