A judge's race or gender makes for a dramatic difference in the outcome of cases they hear—at least for cases in which race and gender allegedly play a role in the conduct of the parties, according to two recent studies.Thanks to Shaker juicepockets for sending that along.
The results were the focus of a program about "Diversity on the Bench: Is the 'Wise Latina' a Myth?," sponsored by the ABA Judicial Division at the ABA Midyear Meeting in Orlando on Saturday afternoon.
In federal racial harassment cases, one study (PDF) found that plaintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.
...A second study (PDF), looked at 556 federal appellate cases involving allegations of sexual harassment or sex discrimination in violation of Title VII of the Civil Rights Act of 1964. The finding: plaintiffs were at least twice as likely to win if a female judge was on the appellate panel.
University of Pittsburgh School of Law Professor Pat K. Chew, who co-authored the racial harassment study, said she found "the rule of law is intact" in the cases she reviewed. Judges—no matter which side they ruled for—took the same procedural steps to reach their decisions, she said.
But judges of different races took different approaches "on how to interpret the facts of the cases," she said.
...The program took its title from a much-debated comment made years ago by U.S. Supreme Court Justice Sonia Sotomayor: "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 participants never answered the question of whether a Latina judge reaches better conclusions, but at least in some cases, it appears likely that she would reach a different conclusion from a white male jurist hearing the same evidence.
It shouldn't matter, in terms of having each person's judicial needs and issues fairly addressed (and addressed using nonmarginalizing language), what the percentage of women and/or people of color and/or LGBTQIs and/or people with disabilities in judicial positions is, but it does. Just like it makes a difference whether male legislators have daughters. It always matters, because, unfortunately, we live in a very lopsided and still largely segregated culture, where a white person, for example, can go their entire lives never having to know a person of color on a personal level. That situation inevitably begets ignorance, which can manifest in overtly malicious expressions of bigtory or unintentional (but not innocuous) offense.
Diversity benefits not just the marginalized, but also people of privilege, by providing them with opportunities to expand their understanding of others. When considering legislation to fund women-centered medical research, a Congressman who sits beside a colleague who is a breast cancer survivor every day, and has heard her firsthand accounts of her treatment options (and, perhaps, lack of options), is more likely to have a personal investment in pushing through the bill than a Congressman who only regards breast cancer as "bad" in an abstract way. An appellate court judge whose colleague is openly gay is more likely to reject gay panic defenses. That's just the way humans work.
There is an understandable knee-jerk negative reaction among some straight, cis, able-bodied white men to the complaint about any group being primarily straight, cis, able-bodied, white, and male. I've known men who were bitter about what they perceived as the "guilt" they were expected to feel, or were angry that such complaints (or celebrations of increased participation of female people, trans people, able-bodied people, people of color, and/or gay people, which are, of course, not mutually exclusive groups) somehow assailed their intrinsic characteristics. And I get that—I really do.
But that's not the point.
There's nothing intrinsically wrong with being white, or cis, or able-bodied, or straight, or male. What's wrong is the cultural preference that has conferred privilege upon those characteristics—a privilege from which anyone who falls into any of those categories benefits.
When having been charged with hiring employees at previous jobs, I never discriminated on the basis of race (or anything else), but when I have applied for jobs, and been hired, I might have benefited, even unbeknownst to me, from being white. That's what privilege is really about—not just what you choose to do with it, but what others choose to do with it, and how their decisions might work in your favor.
And against other, non-privileged people's interests.
It's not enough to just "not be [racist]" oneself, because one may still benefit from the [racism] of others so long as it's endemic to our society. So, the argument for the breaking of a straight, cis, able-bodied white male tradition in any venue is not born of hostility to straight people, or cis people, or able-bodied people, or whites, or males, nor of "self-loathing" or "liberal guilt" or "political correctness run amok," but of hostility toward undeserved privilege and of the knowledge that people are naturally self-interested, and likely to remain so unless they are forcibly exposed to people who are different than they are.
Finding a problem with disproportionately white male representation doesn't make women man-haters or men self-loathing; it doesn't make people of color racists or whites self-loathing; it's simply a recognition that most white men, because of our culture, aren't compelled to familiarize themselves with many of the issues that women and/or people of color face. Privilege is, in its rawest form, the ability to live one's life without ever having to interact in a myriad of meaningful ways with The Other.
The flipside of that imbalance is that, just by virtue of its dominance, the issues and experiences and language and culture of any privileged group are well-known to the non-privileged, because that culture is inescapable. We live in it, too—we just experience it from a place of denial rather than access.
Charges of political correctness are little more than an attempt to mask precisely this reality: If women move in a male-dominated world, and people of color move in a white dominated world, and queers move in a straight, binary-sexed, cisgender world, and disabled people move in an able-bodied world, and straight, cis, able-bodied white men move in that world, too, and rarely venture into the sub-cultures or explore the intersectionalities of the marginalized without external pressure or guidance, how can it possibly be that straight, cis, able-bodied white men are de facto the best prepared to represent us all?
The one thing privilege doesn't freely give a person is insight.