Folks are watching the Obama administration avidly for lots of reasons – the economy, responding to terror, the good-looking first couple, North Korea, the “first-mother-in-law” – and now there’s an additional reason for lawyers and legal devotees: President Obama’s first opportunity to appoint a justice to the U.S. Supreme Court.
Much has been written about this momentous decision, including whether it’s momentous, given that Justice Souter is a member of the “liberal” wing of the Court, and that the President is considered a pragmatist who might not be interested in appointing someone who could be called ‘liberal’ or even, heaven forefend, ‘radical’. The prevailing assumption in all this analysis is that he will appoint a woman, or possibly a man of color.
Which leads to the question: how much difference do sex and race make in judicial decision-making? The argument can be made both ways (see Thomas, Justice Clarence for evidence supporting one view), but there is some research to inform us. Scholars at Washington University in St. Louis and Northwestern School of Law have published a paper analyzing whether women judges rule differently from men judges, and whether the presence of women judges on appellate panels causes men judges to vote differently. The answer? In 12 of 13 areas of law, it does not. But in the area of sex discrimination, there is a measurable difference in both aspects.
Now, I can just hear it from the social and legal conservatives: “See, that proves it! Women judges rule from their personal perspectives, and hand down one-sided decisions.” At least two responses leap to the mind. (“So what?” would make three, but seems . . . injudicious.) First is the oft-repeated canard about ‘activist judges’ – baloney. The second relates to deep-seated problems in our legal system and our society: embedded sexism and denial about the extent to which everyone’s experiences affect their decision-making, judicial or otherwise.
Of course women’s experiences play into how they view the facts in a given case. Strangely enough, so do men’s. So do those of lawyers who primarily represented corporations, or criminal defendants, or hospitals. Ditto those who grew up poor, or in rural areas, or in Manhattan. Why is that bad? Wouldn’t we rather have a judge who had deep experience in some area, who knew the nuances and ramifications of that legal issue or that life experience? We just don’t call it out when it’s a white male who came from a position of power and privilege. It’s the “other” – the woman, the person with a disability, the person of color – whose life experience is somehow tainting her legal analysis. But it’s not. It’s just informing her perspective and giving her (or him) insight. If she’s a good judge (and most judges work very hard to remain neutral and open-minded) we and our system of justice can only benefit from that perspective and insight.
So --- go for it, Mr. President. Think hard and long about what perspective needs to be added to our highest court. And if you get stumped, you know where to reach me.