DIVERSITY MATTERS: JUDICIAL POLICY MAKING IN THE U.S. COURTS OF APPEALS

Vol. 26 No. 6 (October 106) pp. 106-107

DIVERSITY MATTERS: JUDICIAL POLICY MAKING IN THE U.S. COURTS OF APPEALS, by Susan B. Haire and Laura P. Moyer. Charlottesville and London: University of Virginia Press, 2015. 216 pp. Cloth $45.00. ISBN 978-0-8139-3718-2.

Reviewed by Erin B. Kaheny, Department of Political Science, University of Wisconsin-Milwaukee. E-mail: ekaheny@uwm.edu.

Professors Susan Haire and Laura Moyer address a variety of issues pertaining to the influence of both gender and race diversity in the context of the U.S. Courts of Appeals. As they put it, their book investigates “how diversity has affected the behavior of judges as individuals and as groups, and whether it has had a measurable impact on legal outputs and the content of law” (p. 6).

There is not one overarching theoretical structure that pieces together the various chapters and the many analyses found therein. Rather, Haire and Moyer introduce theories within each chapter that suggest testable hypotheses with respect to the trait/s and context being assessed. Analyses are informed by “social identity theory” (p. 14) and understandings of “socialization” (p. 34), “implicit biases” (p. 43-44), “intersectionality” (p. 55), “marginalization” (p. 67-68), “performance expectations” (p. 67 and p. 84) or “expectation states” (pp. 83-84),“superadditivity” (p. 84-85), “critical mass” (p. 100) and “critical actors” (p. 106-107). In addition, while the authors make excellent use of an updated dataset in several statistical studies, insight into the significance of judge race and/or gender is also developed through the assessment of historical background material, including the judges’ oral histories.

The first chapter, for example, begins with a review of the appointment of minority judges. Haire and Moyer also explore differences in the voting behavior among African American, Latino, and white judges in both bivariate and multivariate settings. Multivariate models are further run across a few broad issue categories. “African American judges,” they reveal, “were substantially more likely … to support the position of a plaintiff” in the “race discrimination” category (p. 32). “In distributive politics cases,” they report, “Latino judges are slightly more likely to support the economically disadvantaged litigant” (p. 31).

The study’s second chapter on judge gender is structured in a comparable fashion. Material on women appointed to the courts is provided, and bivariate and multivariate analyses of the voting behavior of male and female judges are conducted. As with the chapter on race, the multivariate model is run across select issue categories. Only in the realm of “sex discrimination cases” do their findings suggest an increased tendency for female judges to vote in the liberal direction relative to male judges (p. 48). Included in this assessment of the vote, moreover, is a brief but rather interesting follow-up analysis including a birth cohort variable as well. In addition, readers will likely appreciate the authors’ examination as to whether female judges tend to form “‘middle-ground’ opinions” (p. 52). There is evidence in the affirmative direction in a model whereby “middle-ground” suggests “a mixed policy position and … mixed outcome for the litigants” (p. 52). Finally, the authors describe the relationship between a majority opinion author’s gender and the length of the court’s opinion, concluding that female judges do tend to author lengthier majority opinions (p. 53).
Judge gender and race are viewed “as intersecting dimensions” (p. 55) in Chapter 3. Included in this section are details of minority women selected for the circuit bench. In addition, Haire and Moyer compare the votes of minority women to those of minority men and non-minority men and women and ask if minority women have a lower likelihood of receiving majority opinion assignments. Finally, they ask “whether minority women are more or [*107] less likely to self-assign opinions when they are the presiding judge” (p. 70).

Considering the role of the three-judge panel in circuit court decision making, it is helpful that Haire and Moyer devote their fourth chapter to exploring race and gender effects in this particular context. Specifically, they determine whether judges are more likely to author a separate opinion if the majority opinion was assigned to “a nontraditional (that is, minority and/or female) judge” (p. 86), and they explore whether “heterogeneous panels” produce less unanimity (pp. 87-88). While neither of these analyses suggested significant results, the authors did find increases in the error variance of the votes of white male judges “when there were no other white males on the panel” (p. 97). In addition, they assess whether “the number of points of law in the majority opinion” is influenced by the race/gender of panel members (p. 89).

The last empirical chapter of the book includes analyses that pertain largely to the circuit. In particular, Haire and Moyer assess whether “circuit diversification” influences dissent patterns (p. 115) and the voting behavior of women and minorities. Readers, however, will also likely appreciate the authors’ examination of “critical actors” (p. 120) in the circuit. Here, Haire and Moyer consider whether the gender or race of the circuit’s chief judge affects the voting behavior of other judges on the circuit. The study yields “support…for the proposition that the presence of nontraditional chief judges, by itself, is associated with support for plaintiffs in discrimination cases” (p. 121) and further suggests “that diversity in circuit leadership can greatly affect substantive representation by African American judges and women in cases related to sex and race discrimination” (p. 122).

This book has a number of important strengths. As the authors themselves point out, their study includes data for recent women and minorities selected “from both political parties” (p. 6). This, they maintain, permits “stronger, more generalizable claims about race and gender than previous research that only examined Democratic appointees” (p. 6), an important point indeed. Moreover, when reading this book, one will likely be struck by the concise writing style of the authors. This yields critical benefits in a work that covers an extensive amount of empirical ground while integrating multiple lines of theory. In addition, essential modeling choices and key findings are carefully described in the text. The tight and exceptionally clear discussion of quantitative findings is further complemented by historical assessments and comments from the judges within the chapters.

While the concise nature of the authors’ writing style is a definite strength, some readers may have preferred further content exploring at least some of the theories employed in the book. This will be especially true for those who have not encountered these theories in other works. In addition, while the connections between the theories employed and associated empirical tests were reasonable, further elaboration as to why selected analyses were particularly good tests of those theories would have been helpful as well.
That said, Haire and Moyer’s book on the topic of race and gender on the U.S. Courts of Appeals accomplishes a lot in relatively few pages. Through its various chapters, it provides a nice synthesis of previous work to date on the topic, updates examinations of the effects of gender and race on judicial behavior and, importantly, offers novel analyses rooted in a number of theories. While the authors do address a host of important questions, the book will undoubtedly motivate subsequent analyses for years to come.

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© Copyright 2016 by author, Erin B. Kaheny