Sotomayor Nomination Raises Questions About How Female Judges View Cases Differently

Main Category: Women's Health / Gynecology
Also Included In: Litigation / Medical Malpractice
Article Date: 05 Jun 2009 - 4:00 PDT

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Following President Obama's nomination of Judge Sonia Sotomayor to replace retiring Supreme Court Justice David Souter, the differences between how male and female judges see and rule on cases has come into question, the New York Times reports. Although retired Supreme Court Justice Sandra Day O'Connor, the first woman to serve on the Supreme Court, often said that a female judge would come to the same decision as a male judge, Justice Ruth Bader Ginsburg has said that her perspective on certain cases is different because of her gender.

The Times cites two examples, one involving the strip search of a 13-year-old girl -- to which Ginsburg said that her male colleagues could not understand how the girl felt. The second example involves the issue of certain abortion procedures. When deciding about the constitutionality of a federal ban on so-called "partial-birth" abortions, Ginsburg took issue with Justice Anthony Kennedy's majority opinion that women who undergo the procedure likely would experience attacks of conscience. She responded that Kennedy's views reflected "ancient notions of women's place in the family and under the Constitution -- ideas that have long since been discredited."

The issue has come up again with Sotomayor's nomination, specifically regarding her 2001 statement that she "would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." The perception that female judges inherently might view cases differently than male judges has raised some concerns even among some female judges who believe it might be true, according to the Times. Judge Judith Kaye, former chief judge of New York state, said that she avoided discussing the issue with others but then accepted the idea that female judges see things differently at times. "To defend the idea that women come out different on some cases, I just feel it," Kaye said, adding, "I feel it to the depths of my soul" because women's experiences are "just different." Attorney Lawrence Robbins, however, said, "Any person in the real world should be highly reluctant to make these broad generalizations."

The most recent study comparing male and female judges found that female judges were more likely to rule in favor of plaintiffs who claim sex discrimination at workplaces. The study also found no differences in cases involving disability law, environmental issues and capital punishment (Lewis, New York Times, 6/3).

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