After Kavanaugh: Gender Bias on the Bench, and a Call to Diversify the Judiciary

In the months since Justice Brett Kavanaugh joined the Supreme Court of the United States, popular, legal, and political discourse has continued to explore the now-Justice and his conduct[1] within the context of the current #MeToo era. Some observers have argued that the fact that Dr. Christine Blasey Ford’s allegations against him were treated as at least potentially credible and shown deference[2]—rather than dismissed outright—marked a victory for the #MeToo movement and demonstrate that societal attitudes toward gendered violence have evolved.[3] Others, however, have been more cautious,[4] arguing that the spectacle of the hearing and Kavanaugh’s ultimate confirmation show that little has changed since Professor Anita Hill testified in 1991.[5] They believe that the reception of Ford’s allegations, especially when contrasted with the support expressed for Kavanaugh,[6] demonstrate how pervasive myths about sexual violence remain.[7]

There is strong empirical support for the contentions of those who argue that prejudicial and false beliefs about sexual violence remain widely held. Research does indicate that these beliefs, described in the literature[8] as “rape myths,”[9] are commonly held among the public.[10] This is perhaps unsurprising as from newspapers and television[11] to Playboy Magazine[12] and comic books,[13] the American media commonly endorses rape myths in its coverage of high-profile allegations[14] of sexual violence[15] and often erases women’s agency and resistance to sexual assault.[16]

In light of the allegations aired during the Kavanaugh hearing, it should be asked: Are similar gendered biases, including a belief in rape myths, present in the judiciary? Research indicates they are. Reflecting how enduring this problem has been, the National Judicial Education Program to Promote Equality for Women and Men in the Courts[17] was established in 1980 aiming to eliminate gender bias in judicial decision-making. On the issue of rape myths specifically, the results of my own doctoral work revealed that rape myths are still frequently used by the American judiciary, but variably, depending on the myth in question.[18] For instance, while I found few instances of judges excusing the behavior of convicted rapists as unintended (such as arguing that the perpetrator “didn’t mean to” do it), judges in state appellate courts frequently described sexual violence as “intercourse.”[19] This mischaracterizes and normalizes non-consensual contact as mutual. Rather, as Professor Linda Coates and her co-authors explained in their article “Anomalous language in sexual assault trial judgements,” “[c]alling rape ‘intercourse’ is like describing someone’s punching another as ‘mutual touching’ or ‘caressing.’”[20]

What can be done to reduce these biases on the bench? To improve jurisprudence on gendered violence, one obvious approach would be to renew the now-expired Violence Against Women Act (VAWA). VAWA provided critical funds for judicial (as well as prosecutorial and police) training about how to handle cases involving gendered violence,[21] but these programs cannot continue without funding.[22]

A complementary approach would be a push to diversify the judiciary. The use of rape myths is not distributed evenly among all judges. Thus, diversification would be useful because where a critical mass of women can be found, rape myth usage among men and women on the bench is lowered, while challenges to rape myths increase.[23]

While some commentators have noted that a more diverse judiciary is desirable because it is less likely to bring with it similar allegations as arose during the Kavanaugh hearing—for instance, Jennifer Weiner pointedly observed that “[n]either [Elena Kagan nor Sonia Sotomayor’s] high school yearbook featured jokes about drinking and mockery of the opposite sex”[24]—the conversation focused on the importance of an intersectionally diverse judiciary has remained secondary to other debates that emerged in the wake of Kavanaugh’s confirmation. This is unfortunate, as a wealth of research indicates that this would be a productive avenue to pursue, not necessarily to avoid confirmation hearings like Kavanaugh’s, but to neutralize rape myth use and other gendered biases within the judiciary.

Although researchers have found few consistent differences between male and female judges, when it comes to decisions in gender-coded cases like sex discrimination and sexual harassment, clear differences between male and female judges do emerge. For instance, women judges are more likely to empathize with plaintiffs in sex discrimination cases than their male colleagues,[25] and this leads them to vote differently.[26] Moreover, women on the bench have a measurable influence on their male colleagues: when there’s a female judge on a three-judge federal appellate panel, plaintiffs alleging sexual harassment or sex discrimination are twice as likely to prevail as when there are no women on the panel.[27]

Similar intersectional analyses have found judicial behavior is not just raced or gendered, rather it is both raced and gendered. There are significant differences in the voting behavior of minority female judges compared to minority males, Caucasian females, and Caucasian males, with minority females being most likely to support criminal defendants’ claims.[28] It is yet to be determined if similar patterns exist in the area of sexual violence, or in relation to other aspects of identity, such as sexuality, gender identity, or disability, but there is reason to think it would be likely, particularly in the case of minority women. As Angela Harris observed,[29] “[t]he paradigm experience of rape for black women has historically involved the white employer in the kitchen or bedroom as much as the strange black man in the bushes. . . . [And] for black people, male and female, ‘rape’ signified the terrorism of black men by white men, aided and abetted, passively (by silence) or actively (by ‘crying rape’) by white women.”[30] Ultimately, a diverse judiciary is essential to producing fair outcomes, especially on gender-coded issues.[31] As Jennifer L. Peresie argues, “[j]udges’ gender matters both to what the bench looks like and to what it decides.”[32]

This highlights an enduring representational problem: comprising half of the general population but less than a third of state judges, women remain underrepresented on the bench,[33] and this disparity exists among prosecutors,[34] law professors,[35] and equity partners[36] as well. For minority women, the numbers are even more stark, as they remain dramatically underrepresented in all of these areas,[37] compared to both minority men and white women.

The importance of an intersectionally diverse judiciary extends far beyond the overlapping issues of an informed judiciary and fairness on the issues of sexual violence and harassment. A diverse, representative judiciary also increases public confidence in judicial rulings.[38] While highlighting the importance of having openly gay and lesbian judges on Oregon’s bench, the Honorable Virginia L. Linder—the 99th Associate Justice of the Oregon Supreme Court—underscored this point, noting that a diverse bench, where “decisions are aided by shared insights and perspectives of judges with a broad-cross section of life experiences . . . legitimizes the courts in the eyes of those our courts serve.”[39]

But how can this be achieved? Three high-profile initiatives geared at increasing judicial diversity include the National Association of Women Judges’ (NAWJ) “From the Bar to the Bench” program,[40] which encourages women lawyers to consider judicial careers and seeks to lower the barriers to pursuing this choice; their “Color of Justice” program,[41] which encourages minority girls to consider judicial careers; and the American Bar Association’s (ABA) “Women of Color Research Initiative,”[42] which broadly supports women attorneys, particularly women of color, in their legal careers. Programs such as these are critical to keep women in the profession, and to counter harassment and discrimination which can systematically push them out.[43] Law schools can also play an instrumental role in increasing diversity by being intentional in ensuring that their students are educated about career opportunities in the judiciary and that everyone is encouraged to pursue these opportunities,[44] and by modeling equality through diversifying their faculty.

While these programs have provided members with useful support and there have been recent victories in increasing diversity on the bench,[45] women—particularly women of color—remain dramatically underrepresented. In the #MeToo and Kavanaugh hearing era, this underrepresentation is particularly problematic for jurisprudence about gendered violence and for the representativeness and legitimacy of the American judiciary, and ultimately, more attention and resources dedicated to recruiting, supporting, and retaining intersectionally diverse judges are needed to remedy this situation.

Holly Jeanine Boux is a first year student at Harvard Law School. She earned her Ph.D. in American Government from Georgetown University, where her doctoral studies focused upon American judicial politics and gender-based violence. She would like to thank Professor Douglas Reed for his support and encouragement of this article, as well as the online editors of Harvard Journal of Law and Gender for their work on this piece.