A new article in the American Journal of Political Science makes an interesting contribution to our understanding of federal appellate judging. The pith of the research is this: “Employing a new data set on federal judges’ families in tandem with a new data set on nearly 1,000 gender-related cases, we show that judges with at least one daughter vote in a more liberal fashion on gender issues than judges with sons, conditional on the number of children. The effect is robust and appears driven largely by Republican male appointees.”
The study confines its finding to civil cases (e.g., sexual harassment, employment discrimination) — the authors could find no similar effect in criminal cases involving gender (such as sexual assault and rape). While not necessarily puzzled by the latter, the authors contend that this allows them to rule out what sociologists call the “protectionist” theory — that judges are not necessarily primarily concerned with protecting or shielding their daughters from gender-related crime. In other words, the authors are quick to conclude that if the protectionist theory was implicated, it should show up in their data with federal appellate judges voting in a more conservative direction in sexual assault or rape cases (i.e., voting to uphold a conviction).
But the authors overlook a cleaner explanation for this non-finding: the daughters of federal appellate judges, drawn from the generally wealthy(ier) background, are simply more likely to have faced issues in the workplace as opposed to horrific sex crimes. Women who come from lower income households are more likely to be raped. These are not the households of the daughters of the legal elites.
The article also suffers in its empathy metaphor — Obama’s well-publicized empathy statement regarding SCOTUS nominees does not, contra the authors, directly implicate the personal relationships of appellate judges — and in its history: the article contends that Obama was the first president to invoke “empathy” in regard to the characteristics he would look for in a justice. This overlooks President Clinton’s remarks when he nominated Justice Ginsburg to the bench: “Throughout her life, she has repeatedly stood for the individual, the person less well-off, the outsider in society, and has given those people greater hope by telling them they have a place in our legal system.” This differs only in semantics, not substance, from Obama’s remarks.
These quibbles aside, this study marks an important contribution to the literature and shows the poverty of relying simply on the attitudinal model. Read it!