Democrats tend to be less skeptical of female and minority judges than they are white male judges, suggests a new paper published in the American Journal of Political Science. Republicans, on the other hand, often doubt the impartiality of judges who aren’t white men.
The findings, based on two survey experiments involving a combined 6,000 U.S. voters, have direct implications for the selection of judges at a time when law school enrollment has grown increasingly female and Hispanic and as Congress prepares for confirmation hearings for U.S. Supreme Court nominee Ketanji Brown Jackson, who would be the first Black woman to serve on the country’s highest court.
Researchers sought to gauge whether Americans consider judges’ gender, race and ethnicity when making predictions about whether they will exhibit bias in their rulings. Survey questions focused on federal and state judges, the vast majority of whom are white men.
About one-third of active federal court judges are women, federal data show. As of April 2021, 39% of state court justices were female and 17% were racial or ethnic minorities, according to the Brennan Center for Justice at New York University’s School of Law.
One of the study authors, Michael A. Zilis, an associate professor of political science at the University of Kentucky, says the findings are significant considering Americans’ perceptions of judges can bolster or erode public support for the U.S. legal system. When citizens perceive certain judges as improperly biased, he says, they question courts’ procedural fairness — the foundation for effective rule of law.
Zilis warns journalists that the way they cover the upcoming Senate confirmation hearings could have unintended consequences. For instance, if they focus too heavily on any gender- or race-related questions senators might ask, that could influence how people see Jackson and other female and minority judges, he says.
“If they are questions about personal background, experiences or the groundbreaking nature of the appointment, I can understand the need for coverage,” Zilis wrote by email. “However, if there are questions about how race or gender relate to judicial decision-making or whether the judge can rule fairly, covering these questions becomes more problematic, since our research suggests that Americans become more likely to perceive ‘bias’ the more explicitly race or gender becomes linked with judicial decision-making.”
Prior research finds the confirmation process for female U.S. Supreme Court nominees tends to be “very different” than for male nominees. Most Senate Judiciary Committee members have been white men, who “grill female nominees on their judicial philosophies — questions representing the core professional skill expected of U.S. Supreme Court justices — more so than they press male nominees,” according to a study published in 2018 in the Law & Society Review.
Zilis and coauthor Yoshikuni Ono, a political science professor at Waseda University in Tokyo, also find that politicians’ race- and gender-based attacks on judges may exacerbate perceptions of impropriety under certain conditions.
The study was prompted by remarks former President Donald Trump made repeatedly during his campaign in 2016 questioning federal court judge Gonzalo Curiel’s ability to rule fairly in a lawsuit against Trump University. Trump, who pushed for taller walls along the U.S.-Mexico border to keep out unauthorized immigrants, called Curiel, whose parents are from Mexico, a “hater of Donald Trump, a hater. He’s a hater. His name is Gonzalo Curiel.”
Polarized views of Hispanic and female judges
In both experiments, researchers asked participants to read a news vignette about a court case and then answer questions. The study focuses on judges’ handling of two specific legal issues — abortion rights and immigration — but Zilis says the findings likely apply to any court case involving issues directly related to gender, race or ethnicity.
Both experiments show that Republicans and Democrats polarize in their perceptions of judicial impropriety among women and Hispanics, according to the analysis, “Ascriptive Characteristics and Perceptions of Impropriety in the Rule of Law: Race, Gender, and Public Assessments of Whether Judges Can Be Impartial.”
While study participants did not rate Black judges overseeing abortion rights or immigration cases much differently than they did white judges, Zilis says Republicans and Democrats still might differ in their views of how Black judges oversee cases involving Black Americans.
Ono noted that having a Black female Supreme Court justice could help dispel myths and challenge stereotypes about women and minorities serving on the bench in state and federal courts.
“Of course, diversifying the bench is important, and I think this nomination is a great step in that direction,” Ono wrote in an email. “As the judges become more diverse, the biases of the voters may also change.”
The first experiment
For the first part of the study, the researchers asked a nationally representative sample of 3,117 U.S. voters, recruited by the firm Survey Sampling International in the summer of 2018, to read vignettes based on actual news coverage of federal court cases tied to abortion or immigration. The vignettes mention the judges’ names and refer to them using gendered pronouns, but otherwise do not explicitly point out the judges’ gender, race or ethnicity.
For the purposes of the study, the researchers gave the judges names that prior research has shown Americans associate with people of different demographic groups. The names of the judges mentioned in the vignettes are Brad Sullivan, Anne Sullivan, Diego Hernandez, Ariana Hernandez, Darnell Washington and Tamika Washington.
After reading the vignettes, study participants were asked to rate individual judges based on whether they thought the judge would “display improper bias when ruling” or “should be required to recuse [himself/herself] from the case.” Participants also rated judges based on the perceived likelihood the judge’s “values and political views will influence” their rulings.
The results indicate Democrats and Republicans generally see judges differently based on the judge’s demographic traits.
“As we move from liberal Democrats to conservative Republicans, the perception of judicial impropriety increases when a judge is a woman or Hispanic (in comparison to their white/male counterparts),” Zilis and Ono write in their paper. “Not only do respondents stereotype judges on the basis of ascriptive traits, but they specifically view certain judges as more biased.”
When randomly assigned to read a vignette featuring a woman judge, Democrats tended to believe the judge would be unlikely to exhibit impropriety. Liberal Democrats rated male judges as being about 20 percentage points more biased than female judges.
While Democrats, as a whole, indicated they perceive Hispanic judges as unlikely to be biased, Republicans gave Hispanic judges less favorable ratings than white, non-Hispanic judges.
“If a judge is Hispanic, our model estimates that this increases the likelihood, by about 11 percentage points, that Republicans see the judge as exhibiting improper behavior,” the authors write. “This also implies that Republicans see white judges as marginally more fair than Hispanics, while Democrats rate them as less fair.”
The second experiment
The second experiment builds on the first by asking a different group of participants to assess judicial bias based on a range of personal characteristics. Unlike people who took part in the first experiment, who were given clues about judges’ race, ethnicity and gender, participants in the second experiment were provided direct information about judges’ gender, race and ethnicity as well their age, marital status, number of children, party affiliation, legal experience and law school ranking.
The researchers recruited 2,950 U.S. adults for the second experiment using the online crowdsourcing marketplace Amazon Mechanical Turk. Participants were randomly assigned to read a description of a pending court case involving an immigration or abortion rights issue. Although fabricated, the descriptions were adapted from real news coverage.
Zilis points out that the vignettes in the second experiment don’t explicitly state which courts the judges serve but they apply to judges at both the state and federal levels.
After participants read the case description, the researchers asked them to evaluate 10 pairs of judges and decide who was “more likely to display improper bias when ruling on the case” and who was “more likely to have their values and political views influence how they decide.”
The results of this experiment also show the political left and right differ in their assessments of judges.
“Specifically, Republicans are approximately 5 percentage points more likely to rate female (as opposed to male) judges as biased when they have been assigned to resolve an abortion controversy, an effect that we suggest has been brought about by the fact that Republicans expect women to unfairly favor a ‘liberal’ position,” Zilis and Ono explain in their paper. “Unlike Republicans, Democrats perceive female judges as particularly unbiased in abortion cases — about 8 percentage points less likely to display bias.”
The researchers find that Democrats and Republicans differ by about 6 percentage points in their gender-based assessments. They differ by about 20 percentage points when evaluating judicial bias based on ethnicity.
Republicans rated Hispanic judges overseeing immigration cases as being about 17 percentage points more biased than white, non-Hispanic judges.
The paper builds on earlier studies that look at public perception of female and minority political candidates, legislators and chief executives. The research to date demonstrates that women and racial and ethnic minorities continue to face hurdles in winning elections and securing top jobs. Experimental studies involving hypothetical elections, for example, have found evidence of gender stereotypes in vote choices.
Research also suggests that female plaintiffs, in certain circumstances, benefit from having female judges. A paper published in 2018 in the Journal of Labor Economics finds that women who file workplace sex discrimination claims with the Equal Employment Opportunity Commission are more likely to settle and win compensation when the judge assigned to the case is a woman.
A different study by Zilis and Ono, published last year in the journal Politics, Groups, and Identities, reveals differences in perceived judicial bias among adults from different demographic groups. The findings outlined in that paper, “Do Americans Perceive Diverse Judges as Inherently Biased?” are based on responses collected from a nationally representative sample of 3,117 U.S. voters.
Here are some of the key takeaways:
- About 42% of male study participants and 30% of female participants agreed that some Hispanic judges might give biased rulings.
- Black study participants were particularly distrustful of Hispanic judges — 53% agreed with the statement about bias among Hispanic judges.
- About 38% of Republicans, 30% of Democrats and 58% of Independents questioned Hispanic judges’ impartiality.
- Hispanic study participants were especially distrustful of female judges, with 53% indicating they believe some female judges might make biased decisions.
- People with higher levels of education were more likely to doubt female judges’ ability to rule fairly when compared with people with lower levels of education. About 44% of voters with bachelor’s degrees indicated they doubt the capability of women judges as did 37% of voters who don’t have bachelor’s degrees.
“On the whole, a significant number of Americans question the impartiality of female and minority judges,” Zilis and Ono write in their paper. “In fact, the proportions are so large — in many cases between 30% and 50% of citizens — that they strongly contradict the idea that Americans are opposed to attacks on a judge based on her ethnicity or gender.”
3 tips for journalists
Judges generally are either appointed or elected to serve on the bench. Local judges often are chosen through competitive, nonpartisan elections. Zilis and Ono offered several pieces of advice for journalists who cover judicial elections.
1. Focus on judicial candidates’ experience and qualities directly related to the seat they seek — not whether they’re women or minorities.
Zilis points out that many people, including journalists, incorrectly associate certain policy positions with certain demographic groups.
“I think it’s really important in coverage to make sure we’re not falling into the trap by assigning policy preferences on the basis on demographic traits,” he explained in a phone interview. “We should not suggest individuals support certain policy outcomes based on gender or race. Look at [candidates’] history.”
2. Be aware of how your own biases might influence your coverage.
“The influence of a candidate’s gender and race/ethnicity on a reporter’s perception often happens unconsciously (in fact, the results of our experiment are probably the result of unconscious judgments by most people),” Ono wrote by email. “When journalists report on a story, it is a good idea to make sure that it is not filtered by gender, race, or ethnicity, and that the story would be the same even if the gender, race, or ethnicity of the candidate changed.”
3. Don’t make assumptions about how voters will respond to political candidates who verbally attack female judges or judges who are racial or ethnic minorities.
Zilis notes that journalists made that mistake when Trump openly and repeatedly bashed federal judge Curiel.
“A lot of the media at the time dismissed that [attack] because they thought voters would reject it,” Zilis says. “I think it’s really important to not assume voters are going to reject a nakedly racist attack on its face. The effects of race and gender and ethnicity are complex.”