The National Journal, in an article by Neil Munro (not available online), examines the evidence on whether gender matters when it comes to judging appeals. Munro relies mainly on a peer-reviewed study by Christina Boyd, a Ph.D. candidate at Washington University in St. Louis who was recently hired by the political science department at SUNY Buffalo.
Boyd examined a database of 1,275 appeals court cases decided between 1985 and 2002. She compared decisions made between 1985 and 2002 by male and female judges “sharing comparable ideologies and histories.”
Boyd found that only in sex discrimination cases did a judge’s gender make a difference. In these cases, the probability of a judge deciding in favor of the person alleging discrimination decreases by about 10 percentage points if the judge is a male.
As I understand it, because Boyd’s study compares judges of different genders but the same ideology, it might still be the case that female judges tend to be more liberal than male judges. So gender may be important, but the study suggests that, for the most part, ideology trumps it. I suspect this remains true if ethnicity is added to the equaltion.
Munro concludes that, in light of the social science research, lefty academics are moving away from the argument in favor of a diverse bench that Sotomayor endorsed in her speeches — that a diverse bench will produce better decisions. Instead they are now arguing that a diverse bench produces more “political legitimacy” because it persuades people that the courts aren’t just the province of particular race or gender.
Sotomayor, then, appears to have bought into a wave of feminist theory that is no longer in vogue. A wiser Latina would have been more wary of that theory from the start.
UPDATE: The old wave having crashed, or at least become politically untenable, Sotomayor jumps aboard the new one — the need to convince the public that we’re “fair and inclusive.”