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Hullabaloo


Thursday, June 04, 2009

 
Bias

by digby

So the problem with female judges is that their different experience in life leads them to be biased:

But the idea that women may inherently view the law differently on occasion is something that troubles even several female judges who believe it may be so.

Judge Judith S. Kaye, who was the chief judge of New York State for 16 years until her recent retirement, said she had long avoided engaging others on the question. “I struggled with it for the 25 years I served as a judge,” Judge Kaye said.

But she said she had ultimately come to terms with defending the idea that women judges will, at times, see things differently. “To defend the idea that women come out different on some cases, I just feel it,” Judge Kaye said.

“I feel it to the depths of my soul,” she added, because a woman’s experiences are “just different.”

Lawrence Robbins, a veteran litigator in Washington, disagreed, saying, “Any person in the real world should be highly reluctant to make these broad generalizations.”

While Mr. Robbins said it was indisputable that people brought different experiences to the bench, “the role of a judge requires that the person who holds that position recognizes those dispositions that come from personal experience and tries to surmount them.”

“Giving vent to the bias of one’s own experiences would lead to a wrong result, not a proper one,” Mr. Robbins said.

Again, what's interesting here is the notion that the way men see things is "normal" and that the way women see things is biased.

There's a perfect example later in the article:

Justice Steven G. Breyer was one of several on the court who suggested during oral argument that he was untroubled by the search. Justice Breyer said that when he was that age, boys stripped down to their underwear in the locker room and “people did stick things in my underwear,” a comment that produced hearty laughter from Justice Thomas. Justice Ginsburg seemed annoyed, saying that “it wasn’t just that they were stripped to their underwear,” explaining that Ms. Redding was made to stretch out her bra and underpants for two female school officials to look inside.


In terms of the commentary that came afterward, when Breyer noted that it wasn't any big deal to be strip searched because of the usual boys locker room experience, it wasn't worth noting, while Ginsberg's is seen as biased with hers. They both referenced their experiences, but Breyer's view, because he is in the majority, is the controlling view. And yet, in real life, over half of the population is actually represented by Ginsberg's view.

Now, it's true that the court has no obligation to defer to the majority. Indeed, in many cases they are compelled to vote against it becaue the constitution protects the rights of the minority --- which makes this case all the more perverse. The large majority of males on the court look to their own (minority) experience as the experience of the majority to inform them of how this government intrusion is experienced. That's because the default experience is considered to be the male experience.

This isn't new. Even medical science used to only study men to determine how diseases worked, despite the fact that women's bodies were quite obviously made differently. Greater funding was once always put into uniquely male diseases as opposed to uniquely female diseases and it took major lobbying and outside pressure to change that. Indeed, we still see this in the disparate insurance coverages for things like Viagra as opposed to female birth control. It's just that one would have thought that the courts would be a place where such biases would have been contemplated and dealt with before now.

I realize that this is obvious stuff and is old news to most of you. But the article I cited above was in the New York Times this morning. And it's entire theme is that it's a problem that many women judges might rule differently than a man. Never once is it questioned whether it might be a problem that so many male judges might rule differently than a woman --- the assumption is that the male point of view is the impartial view, while the female view is biased. Why should it not be equally true that the female point of view is impartial while the male point of view is biased?

Indeed, Sotomayor's whole point in the "wise Latina" speech may have been that the experience of a woman living in a society which presumes this male privilege by default might actually be less biased than those who never question it. And after all the commentary this past week in which this privilege and experience is completely taken for granted as the standard to which she must be compared, I think I agree with that. Clearly, most people (perhaps most women too) don't question the absurd notion that eight men on the Supreme Court ruling from their experience is a sign of their impartiality but that a woman ruling from hers isn't. If a judge has knowledge of that inherent, social bias it actually would make her see things in a fairer light than someone who doesn't.

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