Skip to main content

Gender Bias in Supreme Court Confirmation Hearings

By Christina L. Boyd Department of Political Science, University of Georgia
Paul M. Collins, Jr. Legal Studies Program and Department of Political Science, University of Massachusetts Amherst, and
LoriA. Ringhand School of Law, University of Georgia

Biased and discriminatory behavior toward gender, racial, and ethnic minorities continues to affect many sectors of American society. The 2016 U.S. presidential election provides just the most recent high profile example of this phenomenon. Vigorous debate erupted throughout the campaign about the ways in which gender shaped public perceptions of both candidates, and the extent to which Hilary Clinton was harmed or helped by being the first woman nominated for president by a major political party.

Underlying this public debate is a rich academic literature exploring how gender and race affect the way we select and assess our leaders, including politicians, judges, and lawyers. In “The Role of Nominee Gender and Race at U.S. Supreme Court Confirmation Hearings,” we use the U.S. Supreme Court Confirmation Hearing Database to study this phenomenon at the Supreme Court confirmation hearings held before the Senate Judiciary Committee, asking whether and how the gender or race of the nominee changes the nature of the confirmation process.

We argue that white and male senators will be more skeptical of the professional competence of minority and female nominees than they are of white and male nominees. We measure this by examining the prevalence of “judicial philosophy” questions directed toward female and minority nominees relative to their male and white counterparts. We use this measure because questions about judicial philosophy are the device used by senators to explore how a future justice will go about the core duty of Supreme Court justices: interpreting the U.S. Constitution. Nominees who use the “wrong” method of interpretation will - in the eyes of the questioning senator - fail at this essential task. Consequently, senators’ implicit biases and lack of relative confidence in female and minority nominees’ professional competence to serve on the Court may result in more aggressive questioning on these nominees’ judicial philosophies.

Figure 1. The Percentage of Judicial Philosophy Questions Nominees Received from Opposite and Same Party Senators, 1967-2010

As shown in Figure 1, this is exactly what happens at the hearings, at least in regard to female nominees. Female nominees being questioned by opposite party senators are asked 10 percent more questions about judicial philosophy than are their male counterparts (after controlling for other factors). And while we found no overall effect on this measure for minority nominees, it is notable that the strongest effect among the female nominees was in the questioning of Justice Sonia Sotomayor – the only nominee in our data to be both a woman and a member of a racial minority group.

Our results reveal that even being among the most accomplished lawyers of their generations does not immunize female Supreme Court nominees from gender bias in the workplace. Whether because the questioning senators are more skeptical of the ability of female nominees to competently perform the core judicial task of constitutional adjudication, or because the senators see it as a winning strategy to cast doubt on their ability to do so, female nominees at their Supreme Court confirmation hearings face a confirmation process that is quite different than that of their male counterparts.

Popular posts from this blog

Europeanization or National Specificity? Legal Approaches to Sexual Harassment in France, 2002–2012

By Abigail Saguy, UCLA

Sexual harassment represents a massive problem for working women worldwide. A recent social media campaign has brought increased awareness to this fact. In late 2017—after three-dozen women accused Hollywood producer Harvey Weinstein of sexual harassment, assault, or rape—millions of women posted “Me Too” on Twitter, Snapchat, Facebook, and other social media platforms. Taking inspiration from African American activist Tarana Burke—who, in 2007, started an offline “Me Too” campaign to let sex abuse survivors know that they were not alone—actress Alyssa Milano launched this online Me Too campaign to shift the focus from Weinstein to victims. She hoped this would “give people a sense of the magnitude of the problem.”[1] While some posted simply, “Me Too,” others provided wrenching detail about abuse they had sometimes never before shared publicly. In France, a similar social media campaign flourished, under the hashtag “balance ton porc,” loosely translated as “sq…

Comment: Making valid claims in social science research: A comment on Jenness and Calavita

By Tom Tyler, Yale Law School

I am writing to comment on several methodological issues raised by the article by Valerie Jenness and Kitty Calavita, entitled “It depends on the outcome”: Prisoners, grievances, and perceptions of justice”. I am pleased that the methodology blog for Law and Society Review has been created and provides a forum to discuss research design issues. I will address three aspects of the study: operationalization of the variables; statistical analysis; and inclusiveness of the literature review.

The Jenness/Calavita paper studies California prisons using data collected through interviews with prisoners. The paper says that it tests the perceptual procedural justice model, in particular there are frequent references to the Tyler model, in a prison setting. The study concludes that “prisoners privilege the actual outcome of disputes as their barometer of justice” showing “the dominance of substantive outcomes” (from the abstract)”.

I agree with Jenness and Cala…

The Roots of Life Without Parole Sentencing

By Christopher Seeds, New York University

Since the early 1970s, life imprisonment without the possibility of parole (LWOP)—an extreme prison sentence offering no reasonable possibility of release—has emerged as a routine legal sanction and penal practice in the United States. A century, even several decades ago, this would have been unexpected. Yet today, with more than 50,000 prisoners so sentenced and hundreds of laws authorizing it, LWOP is firmly entrenched in American penal policy, in judicial and prosecutorial decisionmaking, and in public discourse. Two general theses—one depicting LWOP as a replacement penalty for capital crimes; another linking LWOP with tough-on-crime sentencing policy of the mass incarceration era—have served as working explanations for this phenomenon. In the absence of in-depth studies, however, there has been little evidence with which to carefully evaluate these narratives.

My article, “Disaggregating LWOP: Life Without Parole, Capital Punishment, and …