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?
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.