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5 DIVERSITY WITHIN THE CIRCUITS It was a very exciting time for the federal judiciary. . . . It shocked a lot of people when we had our first ceremonial sitting of the Ninth Circuit. There was a Hispanic judge with a beard and a black robe sitting right in the middle of the first row. —Judge Mary Schroeder 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 collectively on the panel. But were judges similarly affected by factors like the overall percentage of nontraditional judges in the circuit, or the presence of a female or minority chief judge? Below, we begin by describing major theoretical perspectives about diversity within organizations and discuss their applicability to the court environment. We then test several expectations suggested by these perspectives about the impact of courtwide diversity on legal outputs. In particular, we build on the findings from 100 DIVERSITY MATTERS chapter 2 that point to differences between men and women judges in promoting consensus, and findings from chapters 1 and 2 that identify issue areas where women and racial minorities vote in distinctive ways. Theoretical Perspectives on Diversity within Organizations Critical Mass Probably the most commonly used framework for analyzing the impact of diversity at the organizational level is the concept of “critical mass.” A foundational study for research in this area is Rosabeth Moss Kanter’s 1977 book, Men andWomen of the Corporation. In this book, Kanter argues that when those from minority groups reach a certain proportion, they become individuals who are distinguished from one another and can form coalitions that affect the organization ’s culture (1977, 209). The flip side of this assertion is that when the levels of women or minorities in an organization fall below this point, individuals may try to downplay their differences, or they may simply have less success in accomplishing their goals because of their small numbers (e.g., Saint-Germain 1989; Thomas 1991, 1994; Grey 2002; but see Bratton 2005; Wolbrecht 2000). Tokens within an organization can experience heightened performance pressures, isolation, or role entrapment into particular stereotypes for their group (Childs and Krook 2006). In 1988, Dahlerup adapted Kanter’s framework to the legislative context in her study of women’s representation in Scandinavian countries. Dahlerup identified a range of possible effects that could result from changing the proportion of female legislators: changes in the reaction to women politicians, changes in the performance and efficiency of women politicians, changes in political culture and discourse, policy changes, and the empowerment of women (2006, 513). It should be noted that while the term “critical mass” has become fairly widespread both in academic and policy circles (see Dahlreup 2006 for an overview), the term is sometimes construed to mean that policy change occurs at a specific critical mass point (for example, 15 or 30 percent) and in other places used to emphasize behavioral differences that occur at multiple levels of proportionality (Beckwith 2007). Most empirical applications of the critical mass perspective fo- DIVERSITY wITHIN THE CIRCUITS 101 cus on the representation of women in corporations, bureaucratic agencies, and legislative institutions, rather than courts. Indeed, the limited amount of scholarship about critical mass within judicial institutions draws largely from theories articulated in the legislative literature (Moyer 2013; Collins, Manning, and Carp 2010; McCall 2008). For this reason, we begin by drawing from research examining nonjudicial organizations and then discuss the insights most relevant for the federal courts of appeals. Critical mass studies of legislative institutions raise important questions for thinking about diversity in the federal appellate court context. For example, is a certain level of women or minorities necessary for changes in institutional outputs to be observed? Answers to this question in the legislative context have been largely dependent on measurement, with the most common threshold used for critical mass being 15 percent.1 However, some scholars have found evidence that a critical mass may occur at points both higher and lower than 15 percent. Bratton (2005) shows...


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