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A friend of mine sent me this article which purports to mathematically study whether female judges are ‘better’ at judging than male judges.

It’s an interesting read, but somewhat long so here is the summary:

  • They “have come up with some indirect measures of judicial quality. These include productivity (how many opinions judges write), influence (how frequently other judges rely on their opinions), and independence (how often judges dissent from opinions written by judges who belong to the same political party).”
  • Results:
    • On average, female judges are less qualified, based on traditional metrics, than male judges.
      • They attended less highly ranked law schools and they got less judicial clerkships
      • The obvious interpretation I draw from this is that this is a relic of past discrimination rather than inability on the part of women.
    • On judging, they are about evenly matched on every criteria bar one: They are more likely to dissent from the opinions of other JJ appointed by the same side than male judges of equal experience (remember this is America, so Democrat judges rule one way and Republicans rule another).
      • The authors drew two implications:
      • 1) Women are possibly better judges, so that’s why less ‘qualified’ women judges perform just as well as men. (Again, I state this is bullocks, their apparent lower qualifications are a result of prejudice, rather than actual inability). This also means they are more likely to be ‘independent’ than male judges because they approach issues from a different angle than men.
      • 2) Politicians, when choosing judges, select on the basis of factors other than traditional indicators of judicial quality like what law school you attended (since they’re pretty poor indicators), so gender might be one basis.

So what do I think? Well, I think as an Australian I need to step back and realise how vastly different the US legal way of thinking is from countries which respect the rule of law and precedent. Secondly, before I wade in and point out how stupid using statistics to measure judicial quality is, I should firstly point out that Americans love to do this. Wikipedia lists the dissent rate of every single justice of the US SC, not merely (as it does for the HCA, Justice Kirby and Callinan’s dissent rates).

I’m somewhat at a loss with what to do with these results. If this were in Australia, I’d just tell you how stupid it is to say that ‘independence’ is a value one should value in a superior court justice. One should think adherence to precedent is far more important. Blaming statistics is not good enough – a far better marker of quality is not how widely cited you are, but how widely followed you are. I know there’s a study out there that says that the California SC is the most widely followed of all the state SCs. But this is America, and we should notice that the marker is not independence from other JJ on the same bench, but other JJ on the same bench appointed by the same side of politics! Which means they could actually be more ‘independent’ in the true sense of the word… following the law and laying it down as it should be. Or, it could mean that they completely ignore what the law says and that it is the male JJ who actually follow the law. The maths does not help us at all…

But then again, what else should I expect from Eric Posner (the fourth author on the list), whose father is Judge Posner of the Chicago Circuit Court of Appeals. Posner J of course is famous for overturning precedent where it does not conform with his mathematically elegant economic theories.

PS: I should add. I neither think women are better nor worse judges than men, though I of course have no evidence to back up this claim. I merely object to giving consideration only to women when appointing someone to a position. If there are roughly even numbers of male and female judges, all of roughly equal quality, then how come the entire shortlist of some 10-15 judges were all women?


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