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As the number of nontraditional judges on the bench has increased, political scientists have studied their voting behaviors and presence on circuit court panels to determine if their presence made a difference in case outcomes. The results of these studies suggested there was no difference in case outcomes or inconsistent differences found across studies. While race and sex of the judge did not have an impact on voting behavior, the political party of the appointing president sometimes did. One area of the law stood out as the exception in these studies: employment discrimination cases.
This article engages several threads of research involving diversity in the federal courts, voting behaviors of judges, and employment discrimination law. First, it discusses the importance of diversity and recent demographic changes that are increasing diversity on the federal bench. Second, it recounts studies related to decision-making by nontraditional judges in employment discrimination cases and the impact of these judges on their white male counterparts on United States courts of appeals. Third, it describes the legal standards in these cases that make it possible for judges to have some latitude in decision-making; studies suggest that this has resulted in an anti-plaintiff bias among a significant number of federal judges with respect to employment discrimination cases. Finally, it links these lines of research to the current increased diversification of the federal bench, suggesting what it might mean for the outcomes of employment discrimination cases
going forward.
Theresa M. Beiner *
* Former Dean & Professor in Constitutional Law, University of Arkansas at Little Rock, William H. Bowen School of Law. Thank you to my co-panelists, Laura Moyer and Lisa Holmes, and discussant and panel chair Christine Harrington, at the 2022 annual conference of the Law & Society Association for helpful comments on an earlier draft of this article. Finally, I am grateful for the thoughtful comments of Sally Kenney and my colleague Terrence Cain.