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2 GENDER AND JUDGING Do women on the bench really make any difference in the development of the law? The maxim that a wise man and a wise woman come to the same conclusions is endlessly repeated, but I think only simplistic. . . . Nearer the truth, I think, is that being a woman and being treated by society as a woman can be a vital element of a judge’s experience. That experi­ ence in turn can subtly affect the lens through which she views issues and solutions. —Judge Patricia Wald 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 associated with their paths to the bench, we consider how female judges may be expected to bring a “different voice” to their decision making. From this perspective, the votes of women judges will vary from the decisions of their male colleagues; how- GENDER AND JUDGING 35 ever, these differences are more likely to emerge in issue areas where gender is salient. Our framework tests this expectation and updates prior research by utilizing the dataset described in earlier chapters that includes votes by judges on the bench through 2008. Using interviews from oral histories, we explore the contention that the personal experiences of this cohort of women judges are relevant to understanding gender-related differences in voting behavior in sex discrimination cases. In the remainder of the chapter, we consider how a feminine approach to judging would manifest itself in procedural dimensions of decision making and test whether women judges, as opinion authors, are more likely to emphasize consensus building and compromise when compared to their male colleagues. Women Judges: Navigating the Gendered Path to the Bench As the first woman to serve on an Article III federal appeals court, Florence Allen had a great deal of experience breaking down gender barriers. She was the only woman in her class at the University of Chicago School of law in 1909, and she graduated second among males, who complimented her for her ability to think like a man (Ginsburg and Brill 1995). After the ratification of the Nineteenth Amendment, Allen, a former prosecutor, became the first woman in the nation elected to sit on a court of general jurisdiction. In 1922, she was elected to the Ohio Supreme Court and became the first woman to serve on any state’s highest court. Over a decade later, FDR appointed Allen to the U.S. Court of Appeals for the Sixth Circuit, where her colleagues routinely dined without her at their all-male club (Ginsburg and Brill 1995). Judge Allen would retire from the bench before another female, Shirley Hufstedler, was named to the Ninth Circuit by LBJ in 1968. Hufstedler had been a California state trial court judge for five years and then sat on the California Court of Appeals for two years before her nomination to the Ninth Circuit. Eleven years after her appointment to the federal appeals court, Hufstedler left to serve as the first secretary of the Department of Education under President Carter.1 Although Florence Allen served well before Shirley Hufstedler, both represented a generation of women “pioneers” who overcame obstacles to pursue professions that were dominated by men. Although the ratio of women to men in law schools is currently close 36 DIVERSITY MATTERS to parity, in 1947, 3.3 percent of enrolled law students were women.2 By 1970, 8.6 percent of enrolled J.D.’s were women. Over the next decade, the number of women in law schools increased substantially so that by 1980, a little over one-third of enrolled students were women. Admission to law school would be only the first obstacle faced by those who wished to practice law in the 1950s and 1960s. In 1970, women made up less than 3 percent of the bar. When asked about what it was like to be one of two women in her class at Stanford Law School, Shirley Hufstedler responded, “It never occurred...


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