February 2010

Saturday, February 6, 2010 to Saturday, February 6, 2010

The recent Supreme Court confirmation hearing of Justice Sonia Sotomayor was dominated by 32 words excerpted from one of her many speeches: "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The notion that judges' decisionmaking might be affected by their gender and race or ethnicity is repugnant to those who view "judging" as the sterile, bloodless, objective disposition of cases, without regard to judges personal backgrounds, biases, attitudes, and ideologies. But a growing number of studies are now demonstrating the dramatic impact that judges' gender and race/ethnicity may have, at least in certain types of cases. What does this fascinating and provocative research mean for the justice system? First and foremost, the studies underscore the importance of diversity on the bench generally, and on appellate panels in particular. Indeed, diversity may in fact be outcome-determinative. But what about trial judges, who hear cases alone? Can judges really check their individual identities at the courthouse door? Should appellate courts closely scrutinize trial judges' decisions in cases where the new studies suggest that a judge’s gender and/or race/ethnicity might well make a difference? Are there systemic changes that should be made? Given the disparities in case outcomes documented in this extraordinary body of research, what can be done to promote accuracy, fairness, consistency, and predictability in judicial decisionmaking, to ensure that "the rule of law" prevails?