Is It Possible To “Judge Like A Woman”?

Just how much does gender influence the way a judge makes decisions?

The New York Times tried to tackle this behemoth question—as it pertains to Sonia Sotomayor, President Obama’s nominee for the Supreme Court—in one tight little article this weekend. And while we hate to nitpick, the title alone kinda pissed us off: “Debate On Whether Female Judges Decide Differently Arises Anew.”

Of course men and women are different. We have different life experiences, different hormones coursing through our bodies, and different ideas of what constitutes a clean bathtub. But our problem when talking about differences is more of a semantic one: why is being a male considered “normal,” but being a female is considered “different”? We don’t like the implication of phrases like “will Sotomayor decide differently” or “does Ginsberg decide differently?”, as if decisions made by males are status quo and what should be normal. How did being of the less-represented gender equal some kind of bias? The Times mentioned that at their confirmation hearings, Chief Justice John Roberts and Justice Clarence Thomas both said “judges should be like neutral baseball umpires.”

Well, of course all judges should be neutral. But we don’t think it’s fair to presume that Roberts and Thomas are already neutral (and male) and therefore, because Sotomayor is female, she’ll automatically be “different” and not neutral.

Really, why are we pretending that any person—man or woman, black, white or Latino—is completely unbiased or unaffected by their upbringing? Why should we believe Roberts doesn’t decide “differently” as a white man and Thomas doesn’t decide “differently” as a black man, if Sotomayor may decide “differently” as a woman? Logically, if Sotomayor is influenced by her gender, doesn’t it follow that the majority of eight men already sitting on the Supreme Court have been influenced by their gender?

Hmm, maybe a more fair question to ask during the confirmation hearings, we think, would have been to say to Roberts and Thomas:

Sir, if you get confirmed to the Supreme Court, do you think you’ll be making biased decisions—as a man?