An argument frequently advanced by advocates for an inclusive judiciary is that the representation of women and minorities ensures that the federal courts fairly reflect the experiences of a diverse population. According to this view, a diverse judiciary allows historically excluded groups an opportunity to advance perspectives, issues, and interests that had been previously ignored (Kenney 2013). Underlying this normative argument is a series of empirical questions: Do women judges bring a “different voice” to the bench? Are minority judges responsive to the concerns of minority groups? Does the presence of minorities and women on a collegial court affect the...

In the introduction, we highlighted the varying efforts of Democratic and Republican administration officials to identify qualified minority nominees to fill vacancies on the federal appellate bench. Although presidents garner electoral support among African Americans and Latinos when selecting judges of color (see Scherer 2005b), officials also advance policy arguments for increasing the presence of minorities in the judiciary. One rationale underlying the push for descriptive representation in the judiciary is a substantive one: minority judges bring important and traditionally excluded perspectives to the bench (Ifill 2000). As noted by Judge A. Leon Higginbotham, “having minorities on the court …...

In this chapter, we explore potential differences in the approaches to judging taken by women and men on the appellate bench. Earlier, we focused on the role of social identity theory and the relevance of group closeness in understanding how race and ethnicity affect judicial decision making. Here, our theoretical framework centers on research by social psychologists and sociologists that emphasizes lifelong processes of socialization and allocation associated with gender roles that contribute to differences in attitudes and behavior.

After examining the personal backgrounds and legal careers of the first cohort of women appeals court judges and the socializing processes...

As we saw in chapters 1 and 2, characteristics like race and gender can be an important influence on judicial policy making under certain conditions. The evidence from these chapters suggests that personal experiences with differential treatment may lead female and African American judges to engage in substantive representation for women and minorities, respectively. However, there is another valuable perspective on studying diversity: thinking about race and gender not in isolation from one another but as intersecting dimensions. This perspective, known as intersectionality, argues that the interplay of social forces can shape individual identity and experiences in ways not captured...

By having three judges decide an appeal together, different perspectives will be brought to bear on the panel as it examines claims of legal error and establishes binding precedent for the circuit. Because federal appellate judges must sit with one another repeatedly over the course of their time on a circuit, judges have pointed to the importance of collegial norms, which help “to create the conditions for principled agreement by allowing all points of view to be aired and considered” (Edwards 2003, 1645).

How might gender and racial diversity on an appellate panel affect these processes and their outputs? In...

As the federal judiciary began to experience changes in the kind of individuals appointed to the appellate bench, this transformation was felt differently in each circuit. Some courts, like the Ninth Circuit, saw a relatively rapid influx of nontraditional judges, as presidents appointed women and minority judges to new or vacant seats in quick succession. In other circuits, change was slower or limited to either (white) women or minority (male) judges, but not both. From the previous chapters, we have seen that the level of diversity on a panel can have important effects on the behavior of judges individually and...

Significant changes in the composition of the federal appellate judiciary have occurred since the beginning of President Carter’s administration. Prior to 1977, the courts of appeals were composed entirely of white males, with only six exceptions (two white women and four African American men) in the entire history of the federal judiciary. In contrast, by the end of the George W. Bush administration, over a quarter of the sitting circuit judges were women, and 15 percent were African American or Hispanic.

But have these changes actually affected judicial policy making in these courts? In a word: yes. According to the...