In lieu of an abstract, here is a brief excerpt of the content:

3 INTERSECTIONALITY AND JUDGING Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage. —Justice Sonia Sotomayor 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 looking at these factors separately (Hancock 2007). Kimberle Crenshaw was an early leading figure in highlighting the legal dilemmas faced by women of color because of their position at the intersection of race and gender. In a seminal article (Crenshaw 1998), she described how the context of employment 56 DIVERSITY MATTERS discrimination uniquely affected black women. Crenshaw offers examples of several discrimination lawsuits in which judges fail to acknowledge black women’s claims because their experience was not representative for all women (that is, white women were not affected) or all blacks (that is, black men were not affected). She further argues that antidiscrimination doctrine, as it currently exists , “creates a dilemma for Black women. It forces them to choose between specifically articulating the intersectional aspects of their subordination, thereby risking their ability to represent Black men, or ignoring intersectionality in order to state a claim that would not lead to the exclusion of Black men” (Crenshaw 1998 [2005], 93). Another critical race theorist has argued that rape has been another area in which black women’s experiences differ substantially from those of white women: “The paradigm experience of rape for black women has historically involved the white employer in the kitchen or bedroom as much as the strange black man in the bushes. . . . [And] for black people, male and female, ‘rape’ signified the terrorism of black men by white men, aided and abetted, passively (by silence) or actively (by ‘crying rape’) by white women” (Harris 1990, 598–99). More recently, political scientists have focused on the ways that political institutions can be “race-gendered.” Hawkesworth (2003, 531) describes race-gendering as “the production of difference, political asymmetries, and social hierarchies that simultaneously create the dominant and the subordinate.” While this framework offers some leverage for understanding the experiences of minority women inside political institutions (Hawkesworth 2003), it has also been used to investigate how the intersection of race and gender affects political candidates who are not minority women (Hancock 2007). In the following section, we discuss the major findings of empirical research using the frames of intersectionality and race gendering and what these insights may mean for the appellate court context. We then examine patterns in presidential appointments to see whether there are “race-gendered” paths to the bench that point to the existence of different evaluative criteria for minority women compared to white women, minority men, and white men. Building on this discussion, a series of analyses investigates the extent to which minority women judges are marginalized or included in the INTERSECTIONALITY AND JUDGING 57 work of the panel, as it relates to opinion assignment. We conclude by testing whether minority female judges are more likely to engage in substantive representation for gender and race, as previous research on legislators has found. Studying Intersectionality From an empirical perspective, there is general agreement that studying intersectionality requires researchers to consider race and gender interactively (Hancock 2007; Simien 2007), as opposed to studying race and gender by themselves or in an additive way. While some feminist scholars have rejected the use of all categories in favor of individualized case-study analyses (see McCall 2009, 52–55), this approach is obviously less useful for large-N research. Other researchers (Reingold and Smith 2012; Best et al. 2011; Collins and Moyer 2008; Orey et al. 2006; Bratton, Haynie, and Reingold 2006) continue to use the categories of race and gender, but do so in a way that attempts to “document relationships of...


Additional Information

Related ISBN
MARC Record
Launched on MUSE
Open Access
Back To Top

This website uses cookies to ensure you get the best experience on our website. Without cookies your experience may not be seamless.