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What to make of the "temperament" issue

By Jack M. Balkin

Scott Moss at Politico has a very helpful piece "The case against the case against Sonia Sotomayor." In particular, Moss provides a useful way of thinking about one expected line of challenge to Judge Sonia Sotomayor's nomination, raised by Jeffrey Rosen in his rather unfortunate "The case against Sonia Sotomayor." Both Rosen's article and evaluations by lawyers in the Almanac of the Federal Judiciary are based on anonymous sources. What should we make of them?

Here's Moss's take:

Like many lawyers, I do read the AFJ when I need background information on a judge, but its anonymous quotations have to be taken with a few grains of salt. I do not believe the AFJ ever has claimed that the comments they publish are a random sampling of the great many comments they receive, as opposed to a sampling of the most notable comments. More importantly, some of the complaints struck me as suspiciously common attacks on outspoken, high-powered women. How many men are criticized for being ?very outspoken?? Do Sotomayor?s critics see it as a bad thing that Scalia frequently is ?overly aggressive? on the bench and in his notoriously entertaining public speeches?

Some quick numbers bear out the suspicion of gender bias in the anonymous criticisms of Judge Sotomayor. Fewer than 20 percent of federal appellate judges are female, but of the appellate judges called a ?bully? or accused of similar words in the AFJ (outburst, intemperate, temperamental, discourteous, or unpleasant), 40 percent (4 of 10) were women. In sum, female judges are twice as likely as male judges to draw criticism for outspokenness and aggression. (It is theoretically possible, of course, that twice as many female judges as male judges actually are outspoken and aggressive, but there is little reason to think that, and my anecdotal experience is to the contrary ? that male judges are more likely to be aggressive, whether in proper or improper ways.

Moss notes that his"small-number statistics don?t qualify as an official empirical study." Nevertheless, "anyone with experience in supervisor evaluations of employees, student evaluations of professors, workplace promotion decisions, etc., knows that assertive women are more likely to be criticized as ?excitable,? ?overly aggressive,? etc. Any fair reading of evaluations, especially anonymous ones, takes into account this well-known gender bias, to avoid penalizing women for Type A traits that draw far less criticism, and even draw praise, in men."

Hear, hear.

What's more, "The attacks on Sotomayor?s aggressiveness miss the mark for a more fundamental reason." They miss the different approach needed in managing the human drama of a trial court, and what goes on in an appellate court. Supreme Court advocates, he suggests, can handle a justice who challenges them. We should hope so.

Hat tip: Feminist Law Professors.

Full post as published by Balkinization on May 27, 2009 (boomark / email).