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June 4, 2009
Debate on Whether Female Judges Decide Differently Arises Anew
By NEIL A. LEWIS
WASHINGTON — Sandra Day O’Connor, the first woman to serve on the Supreme Court, is often quoted as saying that a wise female judge will come to the same conclusion as a wise male judge.
But the opposing argument was bolstered forcefully in April by Justice Ruth Bader Ginsburg, currently the court’s only woman, in a case involving Savana Redding, a 13-year-old girl who had been strip-searched at school by the authorities on suspicion of hiding some ibuprofen pills that may be bought over-the-counter.
“They have never been a 13-year-old girl,” Justice Ginsburg said of her eight male colleagues, several of whom had suggested during oral argument that they were not troubled by the search.
“It’s a very sensitive age for a girl,” Justice Ginsburg went on to say in an interview with USA Today. “I didn’t think that my colleagues, some of them, quite understood.”
Now that President Obama has nominated Judge Sonia Sotomayor to become the third woman in the court’s history, the question of how female judges may see and decide some cases differently is again being weighed.
Judge Sotomayor herself raised the issue of personal experience in judging and engendered mixed reviews recently for a speech she gave in 2001 in which she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
But the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so.
Judge Judith S. Kaye, who was the chief judge of New York State for 16 years until her recent retirement, said she had long avoided engaging others on the question. “I struggled with it for the 25 years I served as a judge,” Judge Kaye said.
But she said she had ultimately come to terms with defending the idea that women judges will, at times, see things differently. “To defend the idea that women come out different on some cases, I just feel it,” Judge Kaye said.
“I feel it to the depths of my soul,” she added, because a woman’s experiences are “just different.”
Lawrence Robbins, a veteran litigator in Washington, disagreed, saying, “Any person in the real world should be highly reluctant to make these broad generalizations.”
While Mr. Robbins said it was indisputable that people brought different experiences to the bench, “the role of a judge requires that the person who holds that position recognizes those dispositions that come from personal experience and tries to surmount them.”
“Giving vent to the bias of one’s own experiences would lead to a wrong result, not a proper one,” Mr. Robbins said.
That notion echoes comments by Chief Justice John G. Roberts Jr. and Justice Clarence Thomas at their confirmation hearings that judges should be like neutral baseball umpires.
Miriam Nemetz, a Washington lawyer who has also litigated cases before both men and women at all levels, said that when considering the issue, it was important to note that the question must be narrowed to whether women might see and decide differently in some cases or situations, not everything that came before the courts.
Ms. Nemetz said she was recently involved in a Supreme Court case involving the Constitution’s commerce clause and the disposal of trash. “No one would contend that case could have anything to do with whether the judges were male or female,” she said. On the other hand, she noted, the recent strip-search case directly raised the issue of how offensive or intrusive the school’s actions were, and that judgment is surely subject to the justices’ own views.
Justice Steven G. Breyer was one of several on the court who suggested during oral argument that he was untroubled by the search. Justice Breyer said that when he was that age, boys stripped down to their underwear in the locker room and “people did stick things in my underwear,” a comment that produced hearty laughter from Justice Thomas.
Justice Ginsburg seemed annoyed, saying that “it wasn’t just that they were stripped to their underwear,” explaining that Ms. Redding was made to stretch out her bra and underpants for two female school officials to look inside.
If there was any doubt that she was seething over the matter, Justice Ginsburg took the extraordinary step two weeks later of discussing the case with a reporter even though the case was still pending.
In the interview with Joan Biskupic of USA Today, Justice Ginsburg also said that as a woman she had sometimes found her comments ignored in the justices’ private conferences until someone else made the same point. She said the experience recalled her early years as a female lawyer whose comments in group discussions were not properly valued.
Justice Ginsburg also dissented in a 2007 case in which the court ruled that Lily Ledbetter, who had worked at a Goodyear tire factory, could not sue over unequal pay because she failed to file her complaint in a timely manner.
And joining another dissent that year, she reacted harshly to Justice Anthony M. Kennedy’s majority opinion upholding a federal ban on a procedure that abortion opponents call “partial-birth” abortion. Justice Kennedy said women who undergo the procedure were liable to attacks of conscience. Justice Ginsburg responded that those views reflected “ancient notions of women’s place in the family and under the Constitution — ideas that have long since been discredited.”
The most prominent and recent academic study comparing male and female judges found that female judges were more likely than males to decide in favor of plaintiffs who alleged sex discrimination at the workplace. But the study, an unpublished paper by Christina L. Boyd, Lee Epstein and Andrew D. Martin, found no difference in cases involving disability law, environmental issues and capital punishment.
In addition, the study said female judges might exert their influence in cases that were decided by multijudge federal appeals panels.
“Likewise, when a woman serves on a panel with men, the men are significantly more likely to rule in favor of the rights litigant,” it said.