Mitu Gulati

Judging Women: Judging Women

Justice Sonia Sotomayors assertion that female judges might be better than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Using a data set 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. For many of our tests, we fail to find significant gender effects on judicial performance. Where we do find significant gender effects for our state high court judges, female judges perform better than male judges. An analysis of data from the U.S. Court of Appeals and the federal district courts produces roughly similar findings.

The Role of Competence in Promotions from the Lower Federal Courts

The judicial behavior literature typically assumes that politicians nominate judges on the basis of their ideology. That assumption helps explain studies that show a statistical correlation between the party of the nominating president and the ideological direction of the votes of judges. However, the assumption is too simple. Casual empiricism suggests that politicians, interest groups, and the public care not only about the ideology of judges. They may also care about their competence and political loyalty and about ensuring that the judicial system is diverse. We focus on the role of competence in judicial promotions. We find, however, that presidents do not take much account of competence when promoting judges—despite the fact that there is some, albeit mixed, evidence that the most competent appellate judges were highly competent district judges.

THE INTERSECTIONAL FIFTH BLACK WOMAN

In 1989, Kimberle Crenshaw published Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics , an article that drew explicitly on Black feminist criticism, and challenged three prevailing frameworks: 1) the male-centered nature of antiracist politics, which privileged the experiences of heterosexual Black men; 2) the White-centered nature of feminist theorizing, which privileged the experiences of heterosexual White women; and 3) the “single-axis”/sex or race-centered nature of antidiscrimination regimes, which privileged the experiences of heterosexual White women and Black men. Crenshaw demonstrated how people within the same social group (e.g., African Americans) are differentially vulnerable to discrimination as a result of other intersecting axes of disadvantage, such as gender, class, or sexual orientation. This essay builds on that insight by articulating a performative conceptualization of race. It assumes that a judge is sympathetic to intersectionality and thus recognizes that Black women are often disadvantaged based on the intersection of their race and sex, among other social factors. This essay asks: How is that judge likely to respond to a case in which a firm promotes four Black women but not the fifth? The judge could conclude that there is no discrimination because the firm promoted four people (Black women) with the same intersectional identity as the fifth (a Black woman). We argue that this evidentiary backdrop should not preclude a finding of discrimination. It is plausible that our hypothetical firm utilized racially associated ways of being—performative criteria (self presentation, accent, demeanor, conformity, dress, and hair style)—to differentiate among and between the Black women. The firm might have drawn an intra-group, or intra-intersectional, line between the fifth Black women and the other four based on the view that the fifth Black woman is “too Black.” We describe the ease with which institutions can draw such lines and explain why doing so might constitute impermissible discrimination. Our aim is to broaden the conceptual terms upon which we frame both social categories and discrimination.