My friends Mitu Hulati and Steve Choi, along with two co-authors, have published a study of the qualifications and performance of male versus women judges. They've also popularized the results in a Slate op-ed:
Justice Sonia Sotomayor's elevation to the Supreme Court brought to the surface a long-simmering controversy about the relationship between gender and judging. Are female nominees for judicial positions chosen based on affirmative action? If so, are women on the bench worse judges than men—or do they come with advantages that men lack? ...All of which prompted Usha Rodrigues to observe that:
The claim that women are worse—or better—than men at judging should be susceptible to empirical investigation. There is no obvious way, however, to measure judicial quality; lawyers dispute endlessly whether cases are rightly or wrongly decided—and, ultimately, a good judge is just a judge who decides cases correctly. Still, we have come up with some indirect measures of judicial quality. These include productivity (how many opinions judges write), influence (how frequently other judges rely on their opinions), and independence (how often judges dissent from opinions written by judges who belong to the same political party). We looked at the performance of hundreds of judges over a number of years and working in different types of courts—state supreme courts, federal trial courts, and federal appellate courts. (Our paper is here.)...
On average, female judges are less qualified, based on traditional metrics, than male judges. They have attended lower-ranked colleges and lower-ranked law schools, they are less likely to have had judicial clerkships (a prestigious job often taken by top law school graduates), and they have less experience in private practice before becoming judges. This suggests that the pool of stellar female candidates for the judiciary is smaller than the pool of stellar male candidates, which provides ammunition for the conservative argument that President Obama's choice of Sotomayor, or another female justice, involves affirmative action in favor of women. If female judges are chosen on the basis of sex rather than ability, they must be less talented than male judges, the theory goes. If they were just as good, it would not be necessary to put a thumb on the scale in their favor when evaluating judicial candidates.
Yet when it comes to performance rather than qualifications, we find no statistically significant differences between the decision-making ability of male and female judges in any of our data sets. Female judges are cited just as often as male judges; they write as many opinions; and they are just as likely to dissent, and to dissent from opinions written by judges who belong to their party.
So the authors say female judges do the same work even if they're less qualified by traditional measures, from which they conclude that 1) women are, innately or by virtue of their experience, better judgers than men, 2) that the legal hierarchy's traditional measures of success don't work, or 3) that the study's empirics are off because it's not measuring judicial quality correctly.
It's obligatory to attack the empirical methodology; I'll leave others to do that. While the first explanation has obvious personal appeal for me, it's the second that I see as potentially more unsettling. Law is a hierarchical world. From the time an aspiring law student applies to a school to the day she retires, she's awash in a sea of rankings: how good a school did you go to? What was your class rank? Did you make law review? Were you on the managing board? Did you make Order of the Coif? How good a clerkship did you get? How prestigious is the law firm? How long did it take you to make partner? How much did you make? How much did you bill? What GS level are you?
What if none of it really means anything? Where are we then?
All good questions, to be sure. Especially because the science of gender differences tells us that:
Some differences between the minds of men and women exist. But in most areas, they are small and dwarfed by the variability within each gender.
I'd like to focus on the first hypothesis anyway, however.
If women are better at the tasks required by the judicial role, why? Do they have skills hard-wired by evolution in this area? Do the ways work was divided by gender and women interacted in early hunter-gather societies (or even pre-Homo Sapiens species) still matter today?
Unfortunately, the authors fail to explore the role evolutionary psychology plays in their story.
Of course, if you believe (as I do) that what's going on here is the third hypothesis--namely, that they haven't found valid metrics--it's all much ado about naught.
