The findings of a new study released this week have captured headlines.
According to two political scientists, having daughters has a profound influence on the attitudes of male judges, most notably those appointed by Republican presidents. In analyzing 2,500 votes by 224 federal judges, the study found that having at least one daughter increased the likelihood that judges would be moved to vote in a more “feminist direction.”
The study is being hailed as incredibly significant because it confirms what many of us have long believed, though it had never been definitively proved: Judges often consider much more than the law and the facts when making rulings. Like everyone else, judges harbor bias. But unlike the rest of us, their biases can have lifelong consequences—including, literally, matters of life and death.
So now that we know that male judges’ rulings are affected by the women in their lives, isn’t it time we started asking judges about the racial makeup of the people in their lives, too?
Since our country’s inception, there has been well-documented racial, gender and class bias in our judicial system. But a disturbing study released in 2012, the year that our nation’s first black president was re-elected, proved that significant racial bias remains prevalent in our judiciary. Specifically, the study proved heavy racial bias in sentencing.
To put in perspective just how severe the bias is, consider this: Researchers found that among the fairest judges, a black defendant being sentenced for the exact same crime as a white defendant was still 30 percent more likely to be sent to prison. Let me reiterate: This was the outcome when dealing with those deemed the fairest judges. I shudder to think what the outcomes are like when dealing with those determined to be the least fair.
Which raises the question: Why aren’t racial attitudes treated as a key component for determining whether or not someone is qualified to serve on the bench? While I certainly want to know if someone is a capable legal scholar before he is confirmed to serve as a judge, I would also like to know whether or not this person harbors ill will toward particular groups of people that may inhibit his ability to do the job fairly and effectively. In fact, if I had a choice between someone who graduated 10th in his law-school class but is fair and lacking in significant bias and someone who graduated first but harbors significant bias, I would far prefer the first candidate. Which makes our current judicial confirmation process disconcerting.
For the most part, statements and writings about particular legal cases and occasionally politics are used to try to decipher a potential jurist’s biases. But as the study on the impact of having daughters proves, what someone writes about the law doesn’t tell you everything about what is shaping his or her interpretation of the law. So instead of trying to decode what someone meant when she made a comment about a particular civil rights case, perhaps we should ask more pointed questions, like, “How many people of color do you know and know well; how do you know them; and, perhaps most important, are your opinions of them generally positive or negative?”
I’m not arguing that every person who has not had much interaction with minorities should automatically be prohibited from serving on the bench. I am saying, however, that a contingency for being confirmed for one of our nation’s most important jobs should be proving that one can execute that job fairly. And for many judges, that clearly means being educated on bias before they accept a job in the judiciary so that hopefully they can perform that job as fairly as possible once they get there.
Keli Goff is The Root’s special correspondent. Follow her on Twitter.