Thursday, October 8, 2009
The gender of judging implicates constitutional as well as "rule of law" concerns. A new article, Judging Women, posted on ssrn has been garnering attention. The study comparing male and female judges provides an empirical perspective:
"Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the U.S. Court of Appeals and the federal district courts."
Yet judicial "output" and quantitative measure aren't the only approach. There is also so-called anecdotal evidence of differences between male and female judges. This snippet, reported yesterday, from an en banc oral argument in the Eleventh Circuit on the issue of whether the frequent but non-severe harassment was sufficiently pervasive to survive summary judgment in a sexual harassment case, is illustrative:
When Judge Edward E. Carnes asked a lawyer about a hypothetical workplace where derogatory, sex-specific terms for men were used in equal measure with derogatory terms for women, Judge Rosemary Barkett raised a problem.
"I can't think of many words that are derogatory toward men," she said. Barkett suggested "bastard" and "prick," saying, "that's the only two I can come up with."
The en banc court is reviewing the panel opinion, Reeves v. C.H. Robinson Worldwide, Inc. 525 F.3d 1139 (11th Cir. 2008), in which the court found that the evidence was sufficient to survive a summary judgment motion in a Title VII claim.
Rosemary Barkett (pictured right) is one of the two women judges of the eleven active judges on the Eleventh Circuit. According to a National Women's Law Center report earlier this year,
Forty-seven of the 164 active judges currently sitting on the thirteen federal courts of appeal are female (almost 29%). When broken down by circuit, women’s representation on several of these individual courts is significantly lower than on the courts of appeals overall:
The Eighth Circuit has only one female judge among its eleven members, who is the only woman ever to have been appointed to that court. Women are also vastly underrepresented on the Tenth Circuit (where they make up about 17 percent of judges), First Circuit (20 percent), and the Federal Circuit (25 percent).
Around 25 percent of United States district (or trial) court judges were women in 2008.
Given that the federal courts decide the vast majority of constitutional law cases (with the United States Supreme Court's certiorari rate at 4% for both federal and state courts in 2008), it does seem that there might be gender imbalance in constitutional law adjudication.