Judges’ race and gender has become a hot topic in the U.S., especially since President Obama’s Supreme Court nomination of Sonya Sotomayor and her famous quote: “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 nomination and appointment of Elena Kagan promise to keep the topic on the public’s radar screen.
A panel of judges, social scientists, and I explored the topic “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?” at the 2010 ABA midyear meeting. The program was hosted by the ABA Judicial Division and over 40 other ABA-affiliated cosponsors. I asked the audience, including many judges, a variation of these questions based on my empirical research on judges’ race. What would your answers be?
The ongoing national discussion on whether ethnicity and gender affect judicial decisions sparked extensive media coverage of my ABA midyear presentation and the study on which it was based. Reported in popular media like the Huffington Post, the work was also featured in legal periodicals and news sources including the ABA Journal, the American Judicature Society, Law 360, Minority Corporate Counsel Association, Human Research Specialist, and the Feminist Law Professors.
In fact, my research collaborator, Robert Kelley (a Carnegie Mellon University business school professor) and I launched our multi-year research agenda long before Justice Sotomayor’s nomination. This research and the resulting law review articles, such as “Myth of the Color-Blind Judge: Empirical Analysis of Racial Harassment Cases,” in the Washington University Law Review, led us to become expert on racial harassment law; to better understand how judges’ characteristics, including their race and gender, make a difference in their decision-making; and to use empirical and interdisciplinary methods to learn about these subjects.
The federal law on racial harassment in the workplace intrigued us for a number of reasons. It’s an active area of employment discrimination law, as indicated by the over 7,000 racial harassment in the workplace complaints filed with the Equal Employment Opportunity Commission in 2007 alone. Our study of 428 published opinions in the federal courts over a 20-year time period indicated that these cases involve an interesting racial triad: the alleged harasser is usually white; the plaintiff employee is usually African-American; and the judge is usually white.
The key legal inquiries in these cases also focus on racial dynamics in the workplace. For instance, common questions are whether supervisors’ or coworkers’ harassment was because of the plaintiffs’ race (or in the alternative, some non-race-related reason) or if the harassment was really “severe” or “pervasive” enough to have meaningfully altered the plaintiffs’ workplace so that it was “racially hostile.” Among other findings, we discovered that most of the opinions are on employers’ motions for summary judgment, and that plaintiff employees are often unsuccessful in defeating these motions (losing in about 80 percent of the cases).
The value of empirical methods to study the law is increasingly recognized. Empirical research of legal cases provides a perspective different from traditional doctrinal analysis.
You consider a data set of representative cases, rather than selecting certain ones to advance a particular advocacyposition. This requires that you study the universe of cases or that you randomly sample cases. You also need a large enough number of cases, so you can reasonably generalize results from your study to cases as a whole.
Finally, you use established statistical methods to determine whether your results are significant, rather than outcomes that are just happening by chance.
In our empirical study of judges’ race, we answered questions like those above, based on our study of federal racial harassment cases in the federal courts. Our research indicates that judges’ race makes a significant difference in racial harassment cases. While white judges hold for the plaintiffs in about one of five cases (21 percent, total n = 350), African-American judges do so in almost half the cases before them (46 percent, total n = 24). In contrast, Hispanic judges have decision-making patterns more similar to white judges (19 percent, total n = 21). (See table below.)
What else did we learn? We found that judges’ political affiliation (whether they were nominated by a Republican or a Democratic president) also makes a difference in case outcomes. Plaintiffs were successful 17 percent of the time before Republican-nominated judges and 29 percent of the time before Democrat-nominated judges. On the other hand, the judges’ race was significant even when you took into account their political affiliation.
We also found that judges of all races pay attention to the specific characteristics of each case. When plaintiffs argued their supervisors and coworkers were particularly egregious, for instance by using racial slurs or by “ganging up” on the plaintiff, both white and African-American judges were more likely to hold for the plaintiff.
While an empirical study purposefully gathers and analyzes data as objectively as possible, the interpretation and implications of the findings are up to the individual reader. Some read the results as the basis for alarm and concerns about judicial bias; others read the results as evidence of the importance of a more diverse judiciary. The research results confirm that judges of different races have different perspectives, at least on legal disputes dealing with race. I believe those varied perspectives enrich the legal analysis and move us toward a fairer justice system.
Professor Pat Chew has written and lectured widely on employment law, dispute resolution processes, corporate law, and culture and conflict. Most recently, she has presented on judicial decision-making in racial harassment cases, subtly sexist language in the legal profession and law schools, empirical research in civil rights laws, and key employment laws for multi-national corporate managers. She was recently named a Law School Distinguished Faculty Scholar. In addition to teaching at Pitt, she has taught at the University of Texas, the University of Augsburg, and the University of California (Hastings).