CNSNews.com - Sotomayor Task Force Found Racial and Gender Bias among Judges and Lawyers in Federal Courts

CNSNews.com - Sotomayor Task Force Found Racial and Gender Bias among Judges and Lawyers in Federal Courts

(CNSNews.com) - Sonia Sotomayor co-authored a report asserting that racial and gender bias occurred among judges and lawyers in the federal courts of the U.S. Second Circuit--a conclusion based on a survey of the perceptions of judges, lawyers, court employees and jurors in the circuit.



The report cited no specific allegation of bias against a named person.

Sotomayor, currently a judge for the New York-based U.S. Court of Appeals for the Second Circuit and the nominee to fill the Supreme Court seat vacated by retiring Associate Justice David Souter, was one of nine members on the Second Circuit Task Force on Gender Racial and Ethnic Fairness in the Courts.

“Some biased conduct toward parties and witnesses based on gender or race or ethnicity has occurred on the part of both judges and lawyers,” concluded the task force report issued in November 1997. “Biased conduct toward lawyers based on gender or race or ethnicity has occurred to a greater degree.”

The task force report was included among materials that Sotomayor submitted to the Senate Judiciary Committee with the questionnaire she filled out for the committee.

At the time the report was issued, Sotomayor was a U.S. District Judge for the Southern District of New York less than a year away from being confirmed to the appellate court position.

The conclusions and recommendations in the task force report were based mostly on data from a survey of judges, lawyers and court staff done by the School of Public Affairs at Baruch College that asked questions about discrimination.

In many cases, there were significant disparities in the survey answers given by men and women, whites and non-whites. Despite these disparities, however, usually no more than one-third cited observing or experiencing bias on the job.

The report did say, “The survey and the focus conducted by the committee make one thing absolutely clear: on the whole, attorneys think that judges and courts of the Second Circuit are fair, and that they enjoy practicing in the federal system. Over and over, participants in the various studies compared the operations of the Second Circuit’s courts favorably to the courts of the states in the circuit. In short, most lawyers, most of the time, think that the federal courts are fair and good institutions.”

However, the report’s recommendation’s section states: “Judges should consider the following conclusion, which may fairly be drawn from the Baruch Report: the number of women and minorities reporting direct observation of biased conduct by judges and lawyers occurring is such that one must conclude that such conduct does occur.”

The task force report also listed a complete breakdown of the race and gender of judges, lawyers, and court employees doing work in the Second Circuit that spans federal courts in New York, Connecticut and Vermont. The task force was assembled in 1993. (See Full Report)

What the report did not include was specific allegations of discrimination or bias on the basis of race, ethnicity or gender against any named individual. Rather it provided numerous statistics from the Baruch survey along with anonymous quotes from people identified only by their race and gender.

Findings from the Baruch survey included:

--“6.3 percent of male judges and 26.9 percent of female judges observed parties or witnesses helped or coached in a patronizing way by lawyers, which judges attributed to gender bias.”

--“5.4 percent of male judges and 26.9 percent of female judges observed parties or witnesses ignored, interrupted or not listened to by lawyers, which judges attributed to gender bias.”

--“3.1 percent of white male employees, 8.5 percent of white female employees and 15.6 percent of minority employees observed parties or witnesses helped or coached in a patronizing way by judges or lawyers.”

--“2.5 percent of male judges and 25.9 percent of female judges observed parties or witnesses ignored, interrupted, or not listened to by lawyers, which the judges attributed to racial or ethnic bias.” Meanwhile, “7.5 percent of white male lawyers, 38.3 percent of white female lawyers, 36.3 percent of minority male lawyers and 53.1 percent of minority female lawyers observed lawyers ignored, interrupted, or not listened to, which they attributed to gender bias.”

--“63.2 percent of white female lawyers and 62.3 percent of minority female lawyers reported they have been mistaken for a non-lawyer.” On a question to judges, “1.8 percent of male judges and 8.3 percent of female judges reported observing a female lawyer mistaken for a non-lawyer by other lawyers.”

--“54 percent of white male lawyers, 76.8 percent of white female lawyers and 78.9 percent of minority male lawyers and 80 percent of minority female lawyers reported observing biased treatment of lawyers."

--“33 percent of minority women and 23 percent of minority men believed slurs, jokes and negative comments about race and gender was a problem at work.” Meanwhile, “83.5 percent of minority females, 64 percent of minority males and 50 percent of white females and males supported more diversity training in their workplace.”

“When biased conduct is reported to have been experienced or observed, whether to a major or a minor degree, some uncertainty will inevitably exist as to whether those experiencing or observing the conduct are misperceiving innocent conduct or whether others who fail to observe biased conduct are insensitive to it,” the report said.

“Despite that uncertainty," said the report, "it is significant that far more women and minority men than white men reported observing biased conduct based on gender, and that far more minorities than whites reported observing biased conduct based on gender and that far more minorities than whites reported observing biased conduct based on race or ethnicity."

“The perception of advantage and disadvantage as between male and female lawyers and as between white and minority lawyers vary widely depending on the race and to a lesser extent the gender of those expressing a view,” said the report.

Among the unnamed people quoted in the report are:

--A white female who reported her supervisor “has made comments to me such as ‘the men do all the work in the office and the women just socialize,’ which I believe is very demeaning. He also makes comments like ‘who’s the next to get pregnant in the office – you?’ and has implied that I should wear a dress to special office events.”

--A black female wrote, “I feel that everyone must realize that one’s culture, values, perceptions and stereoptypes play a big role on racial and gender biases.”

--A white female said, “What I have experienced is occasional comments by African American co-workers about white people in general. These comments have been very prejudicial and racist and I am offended by the comments. However, I usually do nothing to avoid possible conflict. These occurrences are very infrequent; however, I feel the comments cause a minor tension in the office when they are made.”

--A Hispanic/Latino female wrote, “I do not feel we have any racial problems in this court. Everyone gets along pretty well, there are a variety of racial backgrounds throughout the department, which is good.”

--A black male employee said, “The white, male dominated administration refuses to hire and/or promote black males, but feels black female officers and Hispanics are less of a threat.”

--An Asian-American male commented, “The reason the federal court works as well as it does is the promotions are in large measure are based on ability and seniority.”

--A white male commented the court had “too much nepotism, most supervisors are related or friends of one another.”

Among other recommendations the report made regarding hiring and appointments, it said, “Bench-bar committee appointment should reflect the diversity of the legal community. The race, ethnicity and gender of those currently serving on the bench-bar committees should be documented.”

It also suggested, “With regard to law clerk selection, the courts should encourage judges to make known to law school deans and professors their interest in diverse applicant pool, to make certain that their selection criteria do not unfairly restrict the pool of applicants, and to seek the assistance of existing law clerks in developing the pool. The courts should also encourage minority internship programs and hold events to encourage minority law clerk applications.”

The report goes on to provide an ethnic, racial and gender breakdown of jurors.

While the survey said that 96.3 percent of jurors said they had not observed gender bias and 97.9 said they had not observed racial or ethnic bias, the report does state, “In some courts, the representation of women and minorities in jury pools is somewhat below what would be expected.”

“Each court should be vigilant and closely monitor the representatives of its jury,” the report said. Further, jury pools should extend beyond the voter registration rolls, as is the case in most districts.

“Courts in which representation of groups based on gender, race or ethnicity is deficient should determine the cause or causes and take appropriate remedial action,” the report recommended. “Consideration should be given to additional methods to broaden the pool of jurors including adding those who hold a driver’s license.”

This type of study was not exclusive to the Second Circuit. In the mid-1990s, the Judicial Conference of the United States, the policy-making body in the administrative office of U.S. Courts, recommended that circuit courts undertake studies exploring racial and gender bias. The studies were not mandatory. Among those to have panels were the first, fourth, and ninth circuits, the deputy circuit administrators told CNSNews.com.

Still, conclusions and recommendations from this report reflect Sotomayor’s focus on race and gender, said critics of her nomination.

“She views the law through a racial, gender and ethnic prism and given the speeches she has made, it’s not a surprise that she would suggest this on a task force,” Curt Levey, executive director of the Committee for Justice, a conservative legal group, told CNSNews.com.

The report itself was of little substance, said Wendy Long, counsel for the Judicial Confirmation Network, a conservative group that also opposes the Sotomayor nomination.

“The whole thing strikes me as liberal, politically correct, academic, legal professionals world of bean counting focused on gender and race,” Long told CNSNews.com. “A lot of people invested a lot of time and found there are not a lot of problems.”

Long, after reading the report, found the references to being coached in a patronizing way trivial, and had concerns about the reports assessment of juries.

“Jury pools are done in a racial, gender and ethnically neutral way,” Long said. “There is a great deal of law that says you can’t stop people from serving on a jury based on race, gender or ethnicity.”

An American Civil Liberties Unions spokeswoman Pamela Bradshaw told CNSNews.com that the organization does not endorse judicial nominees. But Bradshaw deferred comment to an 88-page report from the organization about Sotomayor’s record that included gender and racial issues.

"Judge Sotomayor’s approach to racial justice issues is consistent with her approach to other areas of the law,” the ACLU report said. “Here, as elsewhere, her opinions generally reflect a careful examination of the relevant facts and law, and a disposition to decide cases narrowly.”

On women’s rights, the ACLU said her “opinions addressing sex discrimination and treatment of women and girls do not contain novel interpretation of the law, but do reflect a common-sense understanding of the way the law operates in the real world.”

The Second Circuit task force report states that women made up about 52 percent of the population in the second circuit’s area, but only 27 percent of the practicing lawyers and 21 percent of active judges in the circuit. Further, while minorities made up 27.6 percent of the general population, they made up only 6.6 percent of the circuits lawyers and just 8 percent of judges.

The report goes on to state that women and minorities are not underrepresented in the total Second Circuit workforce that would include staff such as court clerks. But said that “terminations of minority employees circuit-wide are higher than statistically expected,” while there are “fewer promotions of women than statistically expected.”

“Minorities and women generally do not hold the most senior positions in the various employment units, while greater diversity exists in the jobs immediately below the highest level,” the report asserts.