As Andy Borowitz might write, this just in from “Duh Magazine:” two new studies prove that the race or gender of a judge is strongly correlated with the outcome of cases involving race and gender discrimination.
One study found that in sexual harassment cases, plaintiffs were twice as likely to win if the judge was female. The other study focused on judges of different races, and learned that plaintiffs lost just over half the time if the judge was African-American, but lost 81% of their cases heard before a white judge.
The ABA discussed the studies in a program called about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?” Although Justice Sotomayor took heat for her comment, it rang true for many. These studies concluded that the judges applied the law correctly. The facts, though, are viewed differently depending on whose glasses are used. We have all seen this phenomenon at work; a remark that seems innocuous to one person is perceived as a grievous insult by another. A series of job assignments looks neutral to the white male, while the women easily interpret the pattern of discrimination.
We all bring the experiences of ourselves and our friends to the task of judging what happened in a stranger’s case, and was it motivated by discrimination. Employment discrimination plaintiffs often choose to have juries decide their cases, since the accumulation of experience helps cut through bogus defenses. Also, since many judges have excelled their entire lives, they have never felt held back by discrimination. I believe some have grown to believe that discrimination does not truly exist, unless it is so blatant that there can be no alternative interpretation. (And those cases settle.)
The problem arises with these blinders because federal courts decide so many cases on summary judgment. The judges look at the facts as presented by the lawyers, affidavits, and depositions, and frequently decide that there are not enough facts to warrant a trial. And this is where the accumulation of experience, the perspective of the gatekeeper, does not let in the possibility that subtle actions whisper discrimination.