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4 DIVERSITY ON THE PANEL We are there to engage in a discussion; to explain why an argument is being rejected or a position is being espoused as logically preferable or at least, viable. That’s the point of having three people on a panel . . . the idea is to subject an argument to multiple views. Each judge should engage in testing his or her position against the logic being advanced by another. —Judge Rosemary Barkett 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 the preceding chapters, we have identified a variety of conditions under which these demographic characteristics shape the individual behavior of judges, both in terms of their voting behavior and the opinions they write. But what, if anything, changes in the small group dynamic when there is diversity among the judges on the panel? DIVERSITY ON THE PANEL 81 In this chapter, we test several perspectives advanced by social psychologists to explain these dynamics. One perspective suggests that stereotypes affect group members’ expectations of each other and shape their interactions and evaluations of individual performance (see Correll and Ridgeway 2006). The resulting status hierarchies within a small group may undermine the ability of women and minorities to participate and diminish their influence as equals on the panel. A second perspective suggests that demographically mixed panels result in a broader range of viewpoints being aired. With more robust deliberative processes, panels should produce more thorough opinions due to more information processing among judges and the consideration of tradeoffs among alternatives (Suedfeld and Tetlock 1977; Gruenfeld 1995; Gruenfeld, Thomas-Hunt, and Kim 1998). Are these accounts mutually exclusive? Scholarship suggests that they are not; attribution processes and decision-making rules may condition the information exchanges in a small group. For instance, in groups where nontraditional judges make up a majority, deliberative norms can be more inclusive and facilitate information processing (Sommers 2006; Karpowitz, Mendelberg, and Shaker 2012). The next section begins by explaining why appellate panels are appropriately conceptualized as small groups. Then, building on these insights, we investigate how well the theoretical perspectives on small group diversity mentioned above explain three kinds of legal outputs: separate opinions, the content of the majority opinion, and variability in judicial voting. Small Group Decision Making on the U.S. Courts of Appeals Though there are a number of variations in how each circuit court manages caseloads, the process by which a case comes before a panel is relatively similar, starting with the random assignment of three judges to the panel. Exceptions are made to this general practice, particularly when cases are related to each other in terms of issues, litigants, or facts (Cohen 2002). For cases that are orally argued, interchamber communication over a case typically does not take place prior to that point.1 Judges may pose questions to attorneys during argument that convey their own ideas about the legal issues (Wasby 1977). Following oral argument, the judges meet in conference for a face-to-face discussion of the case. After conference, the 82 DIVERSITY MATTERS presiding judge typically drafts a memo that outlines the positions of the members of the panel with an indication of their collective judgment (Cohen 2002). The presiding judge next assigns the opinion to a member of the panel. Once the majority opinion has been drafted, it is circulated to members of the panel, who then respond to the draft (Cohen 2002). D.C. Circuit Judge Edwards observed that “coming to a multi-judge agreement is not a straightforward matter of voting for one side or another. Rather, it is a complex interplay of reasoning that may be overlapping, continuous, related, or opposed, and which must, if we do our job well, ultimately distill to a clear holding that tells the parties and future litigants what the law is” (2003, 1662). In a thoughtful essay on the utility of conceptualizing appellate panels as small groups, Martinek (2010) lays the foundation for adopting this approach...


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