The XX Factor

The Bitch Defense

In his response to the justified hoopla over his attack on Judge Sonia Sotomayor, Jeff Rosen writes:

I was satisfied that my sources’s concerns were widely shared when I read Sotomayor’s entry in the Almanac of the Federal Judiciary, which includes the rating of judges based on the collective opinions of the lawyers who work with them. Usually lawyers provide fairly positive comments. That’s what makes the discussion of Sotomayor’s temperament so striking. Rosen quotes a bunch of negative comments from attorneys-“overly aggressive,” “abuses lawyers”-followed by a brief acknowledgment of a couple of tepidly positive ones-"good legal ability.” She sounds like a bitch. Who’d want her on the Supreme Court?

Or many other women judges for that matter. Because this is how lawyers often talk about women on the bench. It’s an old story. In 1994, in writing up the findings of the Ninth Circuit Gender Bias Task Force, Justice Sandra Day O’Connor noted that “attorney evaluations of judicial performance revealed a ‘pattern of bias;’ ‘female judges were rated lower consistently than their male counterparts on every attribute measured.’” O’Connor was quoting a 1993 study by law professor Joyce S. Sterling. Here’s another summary from a symposium by the National Association of Women Judges:

Many states conduct judicial performance evaluations, sometimes called bar polls, in which lawyers respond to a survey instrument querying their opinions about the judges in their communities. … Often these evaluations have proven to be an open invitation to biased assessments in which competent, even-tempered female and minority judges are rated as subpar and lacking in judicial temperament. When Colorado law professor Joyce Sterling analyzed the Colorado Judicial Performance Evaluation utilized for the 1992 retention election to which nearly 11,000 attorneys responded, she found “a clear pattern of bias” with women judges ranked significantly lower than male judges. Not only did male attorneys rank female judges lower than men on every attribute measured, there were five attributes on which women lawyers ranked female judges significantly lower: compassion, courtesy, satisfactory performance as a motions judge, satisfactory performances as a settlement judge, and overall rating. This list is revealing because it shows that the expectations for women judges by both men and women are that they will be warm and nurturing. A male judge who strictly controls his courtroom runs a tight ship. His female counterpart is a bitch.

The bold is mine. Because I feel like shouting. Is this really where the conversation has to go when we talk about appointing a woman to the Supreme Court?