‘Judging the Judges’ tilts against women

The results of the Review-Journal’s most recent “Judging the Judges” surveys are in. For women, they are not good.

The Judging the Judges survey is one of the main sources of information that Clark County’s voters have when they head to the polls to choose judges. Our nonpartisan judicial races are mostly low-key affairs that focus on generalities like integrity, experience and fairness. This provides very little useful information to voters.

Judicial performance evaluations such as the “Judging the Judges” survey were developed in part to provide voters with reliable, unbiased information about the quality of their judges. Similar evaluations are currently implemented by 22 states, as well as a large number of local bar associations and media outlets. These evaluations focus on things such as legal ability, communication skills and integrity. They are intended to capture specific information about the actions of the judges to keep them from being evaluated based on inappropriate criteria, including their wealth, political connections or immutable traits such as gender and race.

Unfortunately, it’s not clear that these well-intentioned performance evaluation instruments provide this kind of unbiased information. This year, as in the past, female judges did not fare well in the Review-Journal’s survey. The average retention score for women was 67 out of 100, which is significantly lower than the average score of 75 for men. Only one woman scored in the 90s, compared with seven men, despite the fact that there are nearly equal numbers of male and female judges.

Even when we take into consideration a number of other factors, women tend to do quite poorly in relation to their male counterparts. When we hold constant the quality of legal education, years of judicial experience, disciplinary action and even negative newspaper coverage, women still score about 10 points lower than their male counterparts. This fits with a longstanding pattern in “Judging the Judges” survey results. If we include all of the survey results since 1998, we find a similar disadvantage (of about 12 points) for women judges.

Of course, this is not conclusive proof that “Judging the Judges” is biased against women. However, there is reason to be concerned. The response rates are small. The lawyers who take the time to answer the questions are not likely to be representative of Clark County attorneys as a whole. The survey asks lawyers to summarize their impressions of the judges. They ask a dozen or so vague questions about each judge’s knowledge, integrity, politeness and the like. It is unlikely that the lawyers will be able to recall all of the relevant interactions they had with the judge over the two-year time horizon. Instead, they have to think back to those incidents that stick out in their mind, months or years later.

Social science research has shown time and time again that this can lead to implicit stereotype bias. This kind of bias happens when the brain categorizes information for storage in long-term memory. In judicial performance evaluations, women can be significantly disadvantaged by this cognitive process. Judging is a male-stereotyped job, meaning that our ideal judge’s characteristics are largely seen as masculine traits. This can be problematic for female judges.

For example, one of the important factors is the ability of the judge to manage her courtroom. But the behaviors associated with keeping a courtroom under control are male-stereotyped. A male judge who manages his courtroom well might be described as firm, no-nonsense and decisive. But female judges fall into a trap here. The same behaviors that earn a male judge these adjectives may give a female judge the reputation for being bossy, bitchy or shrill. A male judge who allows lawyers a bit more leeway might well be described as patient, compassionate or flexible. A female judge exhibiting these same behaviors might be called passive, overwhelmed or a pushover.

All of this puts us in a tough spot. “Judging the Judges” is one of the very few sources of information Nevada voters have about their judicial candidates. Without this survey, most voters would be left to make decisions based upon far worse criteria, such as gender, last name or campaign signs.

“Judging the Judges” is the best we’ve got, and the Review-Journal should be commended for providing it. However, voters should recognize the value judgments and cognitive biases that can impact the results of such surveys, and should keep this in mind before casting their ballots.

Rebecca Gill is an assistant professor of political science at the University of Nevada, Las Vegas. For more of her analysis of the Review-Journal’s Judging the Judges survey, go to http://bit.ly/JOGAu5