News flash: Harvard and Rochester Professors Discover How to Make Republican Judges More Liberal!

Remember when our President said he wanted “empathy” on the bench? He said: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”  I muttered to myself that I would be happy if he avoided anyone with a fetish about the meaning of the Constitution, the meaning of life or the meaning of meat loaf. (I really hate meat loaf).

In any event, two very smart and thoughtful professors at Harvard and Rochester decided to test whether “empathy” makes a difference.  So, they did a lot of hard work, and good statistical analysis, regarding the voting patterns of federal appellate judge who had children. It turns out, that judges appointed by Republican Presidents are more likely to vote in a liberal direction on feminist issues if that judge had female children. You can access a PDF of the study here. daughters**

In short, here is what the abstract recounts:

In this paper, we ask whether personal relationships can affect the way that judges decide cases. To do so, we leverage the natural experiment of a child’s gender to identify the effect of having daughters on the votes of judges. Using new data on the family lives of U.S. Courts of Appeals judges, we find that, conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion on gender issues than judges who have only sons. This result survives a number of robustness tests and appears to be driven primarily by Republican judges. More broadly, this result demonstrates that personal experiences influence how judges make decisions, and it is the first paper to show that empathy may indeed be a component in how judges decide cases.*

I am fascinated with this study.  In fact, it might one day be possible through psychological testing to predict voting patterns of judges and thereby use those predictions for judicial selection purposes. When I was Chief Judge, and with the help of a highly trained PhD in management supplied by the Federal Judicial Center, I held a two-day meeting with our judges where I insisted that each judge take the Meyers-Briggs.**  In brief, here is theory behind it:

The purpose of the Myers-Briggs Type Indicator® (MBTI®) personality inventory is to make the theory of psychological types described by C. G. Jung understandable and useful in people’s lives. The essence of the theory is that much seemingly random variation in the behavior is actually quite orderly and consistent, being due to basic differences in the ways individuals prefer to use their perception and judgment.

After serving five years as Chief Judge, I found that the results from the Meyers-Briggs testing were highly predictive of how our judges might vote on internal policy matters.  For example, if I wanted to move toward a more “consistent” policy, laid out in writing (“rules”), I could predict with near certainty who would be with me and who would go the other way–the fascinating thing is that the substance of the “rule” didn’t matter.

So, let’s return to the “daughters” paper.  Do you think it holds water?  I can tell you in advance that I do. If the study holds water, what does it say about how President’s should pick judges? Should we continue to pick judges by using rough proxies (empathy, race, ethnicity, socio-economic background, religion, and the like) for attributes we are seeking when, in the future, there may be far more accurate measures available like personality type?

RGK

PS. Special thanks to Matthew Bogin, a practicing lawyer on the East Coast, for tipping me off about the study. I really appreciate it!

*The authors are:

(1) Adam Glynn, Associate Professor, Department of Government and Institute for Quantitative Social Science, Harvard
University, 1737 Cambridge Street, Cambridge, MA 02138 (http://scholar.harvard.edu/aglynn).

(2) Maya Sen, Assistant Professor, Department of Political Science, University of Rochester, Harkness Hall 322,
Rochester, NY 14627 (http://mayasen.org).

**Please don’t tell me that the MBTI is crap. I know all about the academic and professional criticism, and this post is not about that test. (Jung was creepy to begin with.) To be clear, I am sure as hell not suggesting that it be used to pick judges. 

 

20 responses

  1. Dear Judge,

    I can’t tell whether you’re concerned or delighted by these findings. If the former, I suppose your suggestion to future presidents would be to choose robots, or else for the Senate Judiciary Committee to pry into the family lives of appointees. Or maybe an inquiry into the procreation plans of single or otherwise childless married candidates would be a solution.

    Obviously I jest. But I think you get where I’m going.

  2. Since I don’t have a background in science, I am not sure whether the study holds up in a scientific sense. But I have thought for a long time that the likely explanation for the Eighth Circuit’s contradictory rulings on sexual harassment cases was that sometimes a case has judges with daughters old enough to be in the workforce and sometimes a case does not.

    As for picking judges, it seems to me that on there already is a more accurate measure than empathy, race, ethnicity, etc. Membership in the Federalist Society seems to be a very accurate way of determining whether a judge will decide cases where outcomes might be called conservative or liberal. I doubt it is an accident that the divide on the Supreme Court that you posted about recently occurred after the Federalist Society came into being.

  3. Judge Kopf—

    It seems to me that there’s a difference between recognizing that life experience might inform our views and decisions and probing into personality types with examinations like the MBTI. The former is unsurprising. Anyone who has read “The Brethren” will recall that Justice Blackmun was to some degree influenced in the Roe case because he had daughters. If anyone were to appoint me to the bench (and I’m confident that’s not in the offing), they could expect that I would have an interest in cases involving children with disabilities because I have a son with autism. (Mind you, I don’t think I’d be biased in favor of either side in such cases, but I’d surely have a greater ability to understand the issues than would a judge without that family history.) I think the perhaps more concerning question is whether potential nominees should ever be subject to personality inventories in order to try to predict how they would perform on the bench. While, for reasons I cannot fully articulate, that seems to me to be inappropriate, I can imagine an argument that it is the logical extension of all of the other vetting done by senators and the White House.

    DRF

  4. There are about 179 appeals court judges so the sample size is very small. The number with daughters is small and the number with daughters that were appointed by a Republican is even smaller. Robust? I don’t think so.

  5. Judge:
    In theory, being a public servant–either as a judge or someone in the other two branches of the government–is about making decisions irrespective of one’s own circumstances or experiences. After all, those who make public policy for the benefit of us all ought to do so without regard to their own life experiences, good or bad, while judges likewise need to decide cases solely on the merits or the lack thereof. Yet, as human beings, public servants can, knowingly or unknowingly, be influenced in their decision making by non-relevant factors such as those suggested in the study, i.e., Republican-appointed judges with daughters being swayed by that fact to decide cases in a more “liberal” fashion than would otherwise be the case. I am skeptical of the study’s results (see Mr. Neff’s comment, above) and yet recognize that we can likely never “weed out” the human element in public service which, at its best, prevents us from being automatons but, at its worst, invites the possibility of fallibility in our official acts.
    Robert

  6. John,

    I agree that the sample size is small, but remember that the “universe” is small too. I agree that there are a number of problems with the study, but it was a really good effort with the data they had.

    I wish they would have used federal district judges.

    First, there are lot more of them. The professors could get the data but it would have been much, much harder. Second, and more importantly, appellate judges sit in panels. I am not at all sure that the instant study properly accounted for the impact or input that other judges have on panel opinions. Let me give you one example out of a number I could provide.

    Say, you have a “Republican” judge who is the senior active Circuit judge on the panel and he has five girls. As the senior active Circuit judge, that judge is the presiding judge. An abortion case comes to the panel where the trial judge blew up a restrictive state abortion statute. The other two Circuit judges are females appointed by a Democrat and they vote to affirm. They would do so broadly. The Republican judge, who would have been likely to overturn the favorable abortion decision below had he had the votes, assigns the case to himself, and he then writes the narrowest opinion possible.

    All the best.

    RGK

  7. Adam,

    Regarding the Federalist Society (or the ACS), the problem for a President with using membership as a reliable proxy is that the President can’t really tell the exact “stripe” from membership alone. Take Federalist Society membership: “Libertarians” are one stripe, for example, and they are likely to act quite differently than other “stripes” like, say, “original meaning” folks.

    All the best.

    RGK

  8. “It turns out, that judges appointed by Republican Presidents are more likely to vote in a liberal direction on feminist issues if that judge had female children.”

    Stop the Presses! Judges are affected by personal experience. Who woulda thunk?

    We should be concerned that so many appointments, even under a Democratic President, come from former federal prosecutors and denizens of large firms oriented toward the defense of civil cases. Those backgrounds come out in their work on the bench, and helps to explain why we have a system that is so weighted toward the prosecution that few criminal defendants risk trial, and why such a high proportion of civil cases are disposed of by dismissals and summary judgments. We need more diversity on the bench, in sex, race/national origin, and background.

    Now I recognize that I paint with a broad brush. There are some former plaintiffs’ lawyers on the federal bench (Mark Bennett, in Iowa, is a notable example, and Indira Talwani, who just joined the bench here in Massachusetts was a plaintiffs’ and union-side labor and employment lawyer until her ascension). And past experience is not always a good predictor of a judge’s decision. A friend who became a Supreme Court judge in New York (where the Supreme Court is the trial court) had been a terrific criminal defense attorney. On the bench, he became very “tough on crime.” I never asked him about it, but I have a feeling that he saw defendants from the bench, thought of them as the same kind of scum he had defended, and regularly threw the book at them. But that kind of behavior is not the norm. Most judges–who, after all, are mature when appointed–take with them their life experiences, and those experiences have powerful, if sometimes subtle, effects on their judicial work.

  9. Dear Defender,

    In addition to being a “dirty old man,” I am also a voyeur. Yes, I know where you are going.

    Now, I will be serious. As for the study, I am both concerned and delighted by the findings.

    I am “concerned” because I think the Professors have just touched the top layer of a crucial area of scientific inquiry about human behavior in the judicial setting. I am not at all sure they understand how far they have to go to really address the personality dimensions of judicial decision making. I am concerned that they won’t push deeper.

    I am “delighted,” however, that they have begun to seriously probe. Up to now, and with exceptions I have probably missed, Posner, and the University of Chicago folks, have been the only game in town from an empirical perspective. The Chicago “labor model”–like reputation seeking, like aversion to work or like affinity for leisure–is far too restrictive for my tastes when you are attempting to explain why judges make decisions. That is, I think it too superficial. The study mentioned in the post has the potential for greater depth, richer detail, about judicial decision making.

    All the best.

    RGK

  10. Judge, a bit off topic, but have you seen the order Judge Gleeson, EDNY just entered in a case that deals with “the trial tax”? My blogging colleague, David O Markus, who runs the Southern District Of Florida Blog (if you google it you will get to it) covers the case and the remarkable order. It might be a good topic for you to address.

  11. It’s a good device for a start point, but there are additional questions that want answering before it can be taken very seriously.

    1) There’s a matter of terms of reference, vis., …judges with daughters consistently vote in a more feminist fashion on gender issues…. Based on what definition of “feminis[m]”–the feminism of the movement’s nascence in the ’60s and ’70s (which I assert is the more authentic feminism), or the feminism of today? The authors bandy the term about without clarification that I saw.

    2) The effects on judges’ opinion-making of having boy children. They approach this only peripherally, in footnote 3 and in their discussion of fertility stopping rules. This isn’t inappropriate; a good study needs to stay focused, but the question remains.

    3) The effects of having a mix of boy and girl children.

    4) The effect of the boy(s) being the oldest of that mix vs the girl(s) being the oldest.

    And so on.

    Of course the whole thing elides the question of what is the proper criterion for nominating man to the bench, and of what are the proper criteria for accepting or rejecting the nomination.

    Oh, and the MTBI sucks. You think I’m going to obey a couple of asterisks?

    Eric Hines

  12. Eric,

    I knew I would hear from you on the MBTI. I also knew you would not obey.

    Your other points are good, but for a first cut at this question, I think the Professors tried hard to tangle with the difficult method problems.

    And, finally, you are quite correct to say “the whole thing elides the question of what is the proper criterion for nominating man [woman] to the bench, and of what are the proper criteria for accepting or rejecting the nomination.” That said, in deciding what criteria to use, it is helpful to know what the data shows as you consider the various criteria, at least if you are a President confronted with that difficult choice. In that, the study is a helpful beginning.

    All the best.

    RGK

  13. Horace Rumpole,

    I will check it out. By the way, Judge Gleason is an interesting example of a former prosecutor not playing to type as a judge (although he clerked for Judge Martin on the Sixth Circuit).

    Thank you very much!

    All the best.

    RGK

  14. Horace Rumpole,

    I just looked. Very interesting. I left a brief comment on David’s blog and mentioned you. Perhaps more later.

    All the best.

    RGK

  15. Jon,

    You are right, at least to some degree, about your first point. The Captain Obvious commercials come to mind.

    But, when it comes to diversity do you really want “diversity” (the precise thing: that is, black, white, labor law, malpractice defense, prosecution, etc.,) or do you want a particular type of person. If it is the second option, I think diversity is a poor proxy. That said, it may be the only one we have for a long time.

    All the best.

    RGK

  16. David,

    You make a critical point. The deeper you probe into the question of what the potential judge is likely to do, the deeper the intrusion becomes and that intrusive but informative probe may well become very uncomfortable for all concerned.

    When we hire spies, I am told that we use all sorts of different scientific and psychiatric and psychological methods to assess the personality of the potential spy. We do this because we really want to know what type of person we are hiring to do a very difficult and emotionally challenging job. You see where I am going with this, don’t you?

    All the best.

    RGK

  17. Robert,

    As I just noted in response to David Fine, you (both) have hit the nail on the head. How much do we really want to know about judges (or others) we appoint to important positions? The answer is not nearly as easy as one might have imagined.

    All the best.

    RGK

  18. “Diversity” is a slippery stick, I admit. Last night, at our modified New England Town Meeting (the town is so big that town meeting members are elected) we debated a change to the by-law that creates a Human Relations Commission; the change included provision for a “Chief Diversity Officer.” Clang! Diversity by the numbers–or diversity for the sake of being diverse–doesn’t cut it. At the same time the continuing disproportion among some groups vis a vis others (with, let’s face it, black or African-Americans almost always coming out with disproportionately low participation in advantaged places) shows that we need to take positive (i.e. affirmative) steps to change things. And not just for members of those groups, but for all of us. But while I appreciate your point that a certain type of person makes a good judge, I disagree with the implication that a person of a particular personality who worked for a huge firm with offices in six or a dozen cities will be the same on the bench as someone who represented plaintiffs in civil rights cases, or a lawyer who did all kinds of work in a small town, or a former AUSA. And I think we many different viewpoints on the bench, not only to inform the courts, the legal profession and the bar through their decisions, but also to talk to each other.

  19. Jon,

    You write:

    “But while I appreciate your point that a certain type of person makes a good judge, I disagree with the implication that a person of a particular personality who worked for a huge firm with offices in six or a dozen cities will be the same on the bench as someone who represented plaintiffs in civil rights cases, or a lawyer who did all kinds of work in a small town, or a former AUSA. And I think we many different viewpoints on the bench, not only to inform the courts, the legal profession and the bar through their decisions, but also to talk to each other.”

    To be clear, I agree entirely with you and if I implied something else I apologize for being unclear. Let me give an example. That is me. Joan says it is always about me.

    I practiced law in a county where there were far more cattle than people. I was a general practitioner in the true sense of those words. I have an entirely different take on things compared to my colleagues because of wonderful and no so wonderful experiences while practicing law for 13 years near where central time fades into mountain time. (I never wore cowboy boots though–and that’s for damn sure.)

    All the best.

    RGK

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