Tuesday, February 23, 2010

Identity Matters

As every litigator knows, the first question upon receiving a new case is: who will be the judge? This question is crucial because, as every litigator also knows, every judge judges differently. Now, two new studies confirm once again what many folks and folks of color in the US already know: not only do different judges arrive at different decisions and conclusions, but they do so specifically on the basis of race and gender. In other words, difference is not merely idiosyncratic, not merely a matter of individuation.

These new studies, originally reported at abajournal.com, were recently examined at the ABA Mid-Year Meeting in Orlando by the ABA Judicial Division. In one study, focusing on federal racial harassment cases, the plaintiffs lost 54% of cases when the judge was African-American. However, when the judge was white, 79% of plaintiffs lost their cases. But the picture is even more complex: when the judge was Hispanic, plaintiffs lost 81% of the time. When the judge was Asian-American, plaintiffs lost 67% of their cases. The second study looked at over 500 federal appellate cases involving sexual harassment or sex discrimination and found that plaintiffs were at least twice as likely to win in cases where the appellate panel included at least one non-male judge. What do these findings tell us about the role of race, ethnicity, gender or other categories of identity in the formal administration of law?

As the ABA program noted, the comment by US Supreme Court Justice Sonia Sotomayor about “a wise Latina woman” as a judge, and the difference of perspective based on race and gender conveyed by that comment, appear to be amply supported by the results of the two latest studies. I wonder what all those senators who made such a hullabaloo about such a bedrock fact would have to say now? Probably, as usual, not much at all.



By Frank Valdes

1 comment:

  1. Very interesting blog. I would definitely put you on my favorites list.


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