A Reappraisal of Diversification in the Federal Courts: Gender Effects in the Courts of Appeals

Abstract

Prior scholarship on the effect of the increasing number of female judges leads to three contrasting sets of expectations. Early writings and views of affirmative-action activists suggested that female judges would be more liberal than male judges. On the other hand, a series of empirical studies suggest that we should expect no gender differences. In contrast to both of these perspectives, several feminist scholars suggest that women will be more liberal only when that position expresses support for full participation in the community. These contrasting expectations were tested by analyzing the votes of appeals court decisions in three issue areas. No differences were discovered between male and female judges in obscenity or criminal search and seizure cases. However, in employment discrimination cases, female judges were significantly more liberal than their male colleagues.

Judging the Judiciary by the Numbers: Empirical Research on Judges

“…Songer et al (1994), for example, found that the gender of federal appellate judges did not influence decisions in obscenity or search-and-seizure cases, but female judges favored plaintiffs in employment discrimination cases relative to their male counterparts. Differences are also more likely to be found in cases involving so-called women's issues or in which gender is salient---mostly workplace discrimination and harassment cases (Allen & Wall 1987, Boyd 2013, Boyd et al 2010, Farhang & Wawro 2004.…”

Different voices : measuring female judges' influence on women's rights issues in the U.S. Courts of Appeal.

“…This leads to a liberal outcome (Boyd, Epstein, and Martin 2010;Songer, Davis, and Haire 1994). This also lends support to the informational account (Boyd, Epstein, and Martin 2010) and feminist legal theory (Songer, Davis, and Haire 1994) in helping explain female voting and influence on sex discrimination cases.…”

“…In other contexts, influence can be the power of persuasion. This can be seen at the panel level when one or two judges change their vote after listening to another panel member (Boyd, Epstein, and Martin 2010;Songer, Davis, and Haire 1994;Moyer and Tankersley 2012;Moyer and Haire 2015). Finally, persuasion can be seen in an overridden judgement because the judge that overrode the previous decision gave thought to the rationale behind the decision and was not persuaded by his argument, choosing to write their opinion based on a different argument.…”

“…Many also conclude that females are able to persuade their male colleagues to also cast a vote in favor of the plaintiff (Songer, Davis, and Haire 1994;Boyd, Epstein, and Martin 2010;Moyer and Tankersley 2012;Moyer and Haire 2015). Furthermore, minority female judges have the highest rate of liberal votes in criminal cases (Collins and Moyer 2008).…”

“…The feminist legal theory (which will be discussed in this paper) states that there will be differences between male and female judges that are not simply liberal or conservative but rather that females will only be more liberal in areas of discrimination that prevented those who claimed discrimination from full participation in the community. Their research showed that women are only likely to be more liberal than men when deciding employment discrimination cases (Songer, Davis, and Haire 1994).…”