Matt Stiles

Reporter and data journalist @gridnews

Mar 21, 2022
Published on: Grid News
2 min read
How race and gender influence Supreme Court confirmation hearings, according to social science

Sandra Day O’Connor had been a judge for six years when she was nominated to serve on the Supreme Court in 1981. But during her confirmation hearing, some senators did not address her as “Judge O’Connor”— they called her “Mrs. O’Connor” instead.

As the first woman nominated to the Supreme Court, O’Connor’s gender loomed over the process. More than 13 percent of questions senators asked her focused on abortion, for example, according to an analysis of Supreme Court transcripts. Yet abortion accounted for less than 2 percent of the questions asked to the men who were confirmed directly after her.

Similar patterns have played out with the five other women and two nonwhite men who have been through Supreme Court confirmation hearings: Studies show that subtle bias tends to creep into how the nominees are questioned, especially by senators in the opposing party. Female nominees are particularly likely to be asked questions related to their competence as judges, this research finds. They are also 45 percent more likely than a man to be interrupted by a senator from across the aisle.

These differences are subtle but, as in business or politics, they hint that people assess female and minority candidates differently than they do white men. When Ketanji Brown Jackson sits for her Supreme Court hearing this week, as the first Black woman nominated to the court, she’s likely to face these same hurdles.

“Senators are not going to explicitly say, ‘We have concerns with you because you’re a woman, we have concerns because you’re African American,’” said University of Georgia professor Christina Boyd, one of the researchers who analyzed Supreme Court transcripts. Boyd and her team built a database of Supreme Court transcripts going back to 1939 that will be the focus of a forthcoming book.

But senators — particularly those in the opposing party — are more likely to “push her on her competence or qualifications to serve on the court in ways that we haven’t seen for a white male nominee from the same party,” Boyd said. The experience is likely familiar to many Black women.

Past Supreme Court nominees of color have said they were treated unfairly by the Senate. Justice Clarence Thomas famously referred to his hearing as a “high-tech lynching for uppity Blacks” after he was grilled about sexual harassment allegations against him. Meanwhile, the woman who said Thomas had harassed her, Anita Hill, who is also Black, was asked during her testimony whether she was “a zealot civil rights believer” and whether she had “a militant attitude relative to the area of civil rights.”

Justice Sonia Sotomayor, who was questioned extensively during confirmation about her comment that a “wise Latina woman” would often reach a better conclusion “than a white male who hasn’t lived that life,” also felt her race and gender affected her hearing. She later told a group of law students that she was asked so much about her dating life — Sotomayor was unmarried — that she privately joked that the senators “already know the color of my underwear.”

“There are expectations about how women and men should behave,” Sotomayor said to Northwestern University law students in 2011. “I am probably a bit more aggressive, but to hear people describe me as brash, and rude, the language used suggests a difference in expectations about what’s OK for people’s behavior.”

By analyzing transcripts of Supreme Court confirmation hearings, Boyd and her colleagues found three main areas where women or people of color appear to be treated differently: judicial philosophy, interruptions and stereotypical issue-area questions. Though there are a limited number of female and minority justices to analyze, each has been questioned by many senators, Boyd said, giving the researchers lots of interactions to draw from.

Judicial philosophy is a judge’s beliefs about how the law and the constitution should be interpreted. Questions about judicial philosophy often address a judge’s ability, not just their core views — ultimately functioning as a proxy for asking about a judge’s competence, the researchers argue.

When Thurgood Marshall was nominated to the Supreme Court in 1967, he faced particular scrutiny over his judicial philosophy. “In deciding cases, will you make a selection between constitutional principle based on your own sense of right and wrong?” Judiciary Committee Chairman James Eastland asked him. In a follow-up, Eastland asked: “What you say is that you would follow the real meaning of the Constitution of the United States as you see it?” (The senator, a fierce segregationist, would later ask Marshall, “Are you prejudiced against white people in the South?”)

Women and nominees of color were asked questions about judicial philosophy significantly more often than men: Between 1939 and 2020, when Justice Amy Coney Barrett was nominated, more than 14 percent of questions to both female nominees and nominees of color related to their judicial philosophy, while 9 percent of questions directed at white men did.

“These can be question about particular modes of constitutional interpretation, like originalism, but they’re also questions — and I think we’ll see this come up at Judge Jackson’s hearing — about bias,” said Paul Collins, legal studies professor at the University of Massachusetts-Amherst and one of the researchers working with Boyd. “They cover that core task about the Supreme Court justice.”

Nominees who were not white men were also more likely to be asked questions about issues they stereotypically would have knowledge about: Women were more likely than men to be questioned about gender discrimination and abortion, while people of color were more likely to be asked about racial discrimination.

When senators questioned Supreme Court nominees from the opposite party, they were more likely to interrupt women, the researchers found. A male nominee can expect to be interrupted 6.2 percent of the time by a senator in the opposing party, while a female nominee is interrupted 8.9 percent of the time — a 45 percent increase. (This phenomenon holds true for women serving on the court, too. During oral arguments, male Supreme Court justices interrupt female justices three times as often as they interrupt each other, a 2017 analysis found.)

Jackson will also be perceived differently than any other nominee as the first Black woman to be nominated to the Supreme Court, said Gbemende Johnson, a government professor at Hamilton College.

“We’ve never had a Black woman in this position before,” said Johnson. “You can draw from other Supreme Court nomination hearings that involve women and African American candidates. What emerges [from Jackson’s hearing] will be familiar, and it will also be distinct.”

Black women face a particularly daunting path when seeking legal careers. They are underrepresented in law school and even more so in hypercompetitive legal jobs.

Black women accounted for 5.5 percent of law school students in 2020, according to the American Bar Association. Yet they represented only 3 percent of law firm associates and less than 1 percent of partners at law firms at that time. Three out of four firms, in fact, reported having no female Black partners at all.

Black women are somewhat better represented on the bench: They constitute roughly 5 percent of active federal judges. Women of color who are nominated as judges for the federal bench tend to be younger than their peers but have “longer résumés,” said Laura Moyer, a political science professor at the University of Louisville.

“When choosing these nominees, presidents are potentially perceiving them as riskier, so they’re doing more to shore up that they’re qualified,” Moyer said. “White male nominees generally have private practice experience, and to a lesser extent clerkship experience.”

Jackson, who attended Harvard College and Harvard Law School, completed three clerkships — including one for the justice she is nominated to replace, Stephen Breyer — a relatively high number.

“You have to accomplish a lot in a shorter amount of time than someone else,” Moyer added.