Msnowe's Blog

He Said, She Said.

Posted in Uncategorized by m.snowe on October 7, 2009
"Off with Her Head!" (Don't worry, she's just PMS-ing)

"Off with Her Head!" (Don't worry, she's just PMS-ing)

m.snowe just came across an interesting article on Slate that discusses the quantity and quality of female judges relative to male ones.

The article seems to be tackling two main questions:

1. Are female nominees for judicial positions chosen based on affirmative action?

2. Are female judges “better” or “worse” than their male counterparts?

The writers then go on to explain the findings of their study–that women perform just as well (if not better, at least by the factors studied) as men in terms of their output of dissent, opinions, and being cited by other lawyers/judges. Of course, how does one actually quantify what it means to be a good judge? Though the professors who conducted this study tried to, m.snowe is still skeptical. m.snowe is also skeptical of any study that pits a group of male and females against each other, because despite the good intentions of the study’s authors, it  reinforces the notion of difference between “genders” instead of among them (i.e. there is more variation within a group of males or a group of females than there is when you compare the two groups against each other).

But there are some specifics we need to totally shoot down, right now. Here’s a quote:

They [women] have attended lower-ranked colleges and lower-ranked law schools, they are less likely to have had judicial clerkships (a prestigious job often taken by top law school graduates), and they have less experience in private practice before becoming judges. This suggests that the pool of stellar female candidates for the judiciary is smaller than the pool of stellar male candidates, which provides ammunition for the conservative argument that President Obama’s choice of Sotomayor, or another female justice, involves affirmative action in favor of women.

Okay. The study they are using involves a “dataset of all the state high court judges in 1998-2000”–so it is reasonable to assume these judges were at the very least in their late 30s, early 40s at the time they were serving as state high court judges. That would put them in law school probably about 20 to 30-plus years before the 1998-2000 sample years (somewhere between the late 1950’s  up through the 1970’s). At this point, m.snowe refers to her old stand-by of unfair treatment of women in law school and afterwards: Sandra Day O’Connor. O’Connor was third in her graduating class at Standford Law (by any estimation in today’s and yesterday’s law world, that’s kind of a big deal). This was the mid-1950’s. No law firms were interested in hiring O’Connor, and she was only offered a position as a legal secretary. So she pretty much flipped ’em the bird and decided to go into public service. From there, she worked her way up to the Supreme Court–no easy task for a male or a female.

So conservatives or whoever call foul when women are added to the court instead of equally experienced or perhaps “more experienced” male judges, because they perceive a smaller pool of “qualified” female judges verses men–and yes, the numbers are tipped towards more men in higher-up, prestigious, money-making positions. They shout “affirmative action! No fair!” (And this is a wider issue, that spans sex, age, race, orientation, etc.). You can shout ’til your un-discriminated-against lungs can’t take it anymore, but once you claim unfairness, once you introduce that onto the evidence pile, you must be ready for the defense’s counter-claims. Yes, maybe there are more men who have the qualified pedigree you’re looking for that they earned back in the day when Old Boys Clubs existed freely and without question (as opposed to now, when they’re merely implied and secretly enforced). But some of those “qualified” men took spots from women (in law school and directly upon graduation) that they had an equal (or more than equal) right to years ago, but were denied merely on the basis of their sex. And that set into motion the situation and skewed averages we have today. If men and women were judged absolutely equally (blindly) 20-40 years ago, in terms of school admissions and then job placement, there would be less of a disparity between the sexes in this study. Yes, m.snowe realizes that society dictated in that era that less women would persue law school. However, even the smartest, most determined female students were met with offers of secretarial positions. And now conservatives have the cojones to get upset that Obama might appoint women to the court because of affirmative action? And how can you possibly suggest that women with a less prestigious pedigree are less talented, when women were actively discriminated against, and still performed (and in some cases, out-performed men) and still rose to the highest ranks?