Innie or Outie test goes to Court
Stephen Choi, Mitu Gulati, Mirya Holman & Eric Posner
Journal of Empirical Legal Studies, September 2011, Pages 504–532
Abstract: Justice Sonia Sotomayor's assertion that female judges might be better than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Using a data set of all the state high court judges in 1998–2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. For many of our tests, we fail to find significant gender effects on judicial performance. Where we do find significant gender effects for our state high court judges, female judges perform better than male judges. An analysis of data from the U.S. Court of Appeals and the federal district courts produces roughly similar findings.
"Quality"? Number of opinions...maybe. Outside citations? Okay. But "co-partisan disagreements"? That means when the judge disagrees with people with the same philosophy. So, quality is "incoherent and arbitrary judicial philosophy"? Yes, that is what Judge Sotomayor said, I realize, that women were better because they just make stuff up instead of having core beliefs. And they never do that silly stuff like read the law, or refer to actual opinions, segun la senora. Female judges go with what they feel (again, according to Judge Sotomayor; don't hate me). There are examples of this, of course. Judge SD O'Connor was a random number generator.
But some would say that this puts the "quality" label on judges who write different opinions, and have disagreements, depending on what time of the month it is. *I* would never say that, of course.
(Nod to Kevin Lewis. He wouldn't even THINK that)