The Voting Behavior of Minority Judges in the U.S. Courts of Appeals

Abstract

The diversification of the federal courts has led to a number of studies focusing on the voting behavior of African American and, to a lesser extent, Latino judges. Despite expectations that minority judges will vote differently from their White colleagues, extant research demonstrates mixed results. Perhaps one reason for this outcome is that they fail to account for the conditional role that coracial and coethnic claimants might have on behavior. This study examines the voting behavior of minority judges in the U.S. Courts of Appeals. Focusing on employment discrimination claims between 2001 and 2009, this analysis demonstrates that minority judges are not monolithic in their voting behavior. While African American judges are more likely to vote in favor of Black claimants, Latino judges are less likely to vote in favor of the claimant more generally. In all, the findings have important implications for substantive policy outcomes.

Keywords

race ethnicity judicial behavior courts of appeals federal courts

In 2009, President Obama appointed Sonia Sotomayor, the first Latina to the Supreme Court. Obama’s appointment not only reflected a growing Latino population in the United States, but his decision to make the Court look more like the U.S. electorate also spoke of a much broader trend to diversify the lower federal courts. Prior to the Carter administration, only seven African Americans and three Latinos occupied the lower federal courts. By 1980, this number increased to 39 and 19, respectively. Today, African American and Latino jurists represent 9.4% (120) and 6.4% (77) of all sitting judges (Federal Judicial Center, n.d.). While the federal courts have yet to achieve levels that reflect the United States’s diverse population, there have been clear improvements in the racial and ethnic composition of the federal bench.

The growing number of racial and ethnic minorities in the federal courts has led to a number of studies focusing on the voting behavior of African American (e.g., Gottschall, 1983-1984; Kastellec, 2013; Scherer, 2004-2005; Segal, 2000; Songer, Davis, & Haire, 1994; Walker & Barrow, 1985) and, to a much lesser extent, Latino jurists (Manning, 2004).¹ Our understanding of African American and Latino judicial behavior is far from conclusive, however. Despite expectations that racial and ethnic minorities will vote differently than their White colleagues, separate analyses demonstrate mixed results and, in some cases, voting behavior that is contrary to theoretical expectations. Perhaps one reason for these results is that they fail to account for “claimant effects” or the conditional role that coracial and coethnic claimants might have on the behavior of African American and Latino judges. This is because the Federal Reporter and Federal Supplement, which are the primary sources for federal-court opinions, tend to exclude the background characteristics of the claimants. Consequently, our knowledge of these judge–claimant relationships has been relegated to other levels of the federal government, such as the municipal and state courts (Holmes, Hosch, Daudistel, Perez, & Graves, 1993; Spohn, 1990; Steffensmeier & Britt, 2001; Uhlman, 1978; Welch, Combs, & Gruhl, 1988).

The purpose of this article is to examine African American and Latino jurists in the U.S. Courts of Appeals and their voting behavior toward coethnic and coracial claimants. In so doing, this analysis serves as one of the first studies to test whether voting behavior is consistent across multiple racial and ethnic groups. Based on previous experiences with discrimination, this article contends that African American and Latino judges will vote differently than their White colleagues (Goldman, 1978-1979). However, divergence in voting behavior may also be conditioned by the presence of racial and ethnic cues that may highlight common life experiences (Steffensmeier & Britt, 2001). Focusing on the U.S. Courts of Appeals between 2001 and 2009, I rely on an original data set to analyze the voting behavior of appellate court judges across Title VII employment discrimination claims based on race and national origin. While employment discrimination claims constitute a large share of the federal-court workload (Clermont & Schwab, 2004), the data set is unique in that it records the race and ethnicity of both judges and claimants. Subsequently, it is possible to not only improve the ability to generalize about minority voting behavior but also analyze how African American and Latino judges behave toward claimants with similar racial and ethnic backgrounds.

This analysis demonstrates that minority judges are not monolithic in their voting behavior. The data suggests that the voting behavior of African American judges is largely conditioned by the presence of Black claimants. Latinos judges, however, demonstrate much different behavior relative to their non-Latino colleagues, as they are less likely to vote in favor of the claimant more generally. In all, the findings not only have important implications for substantive policy outcomes affecting Title VII discrimination claims but also provide an added dimension to the study of descriptive representation by focusing on the direct consequences that judges’ decisions can have on appellants.

Descriptive Representation in the Courts

According to Pitkin (1967), descriptive representation occurs when office holders in political institutions and their constituents share similar social and demographic characteristics. While the concept of descriptive representation has been previously applied to judges with particular religious (e.g., Catholic, Jewish, Protestant) and national origin backgrounds (e.g., Jewish, Italian), a more contemporary view of descriptive representation focuses on the “representation of historically disadvantaged groups by members of those groups” (Dovi, 2007, p. 27). Understood in a more restrictive sense, therefore, scholars of descriptive representation have focused on racial and ethnic minorities, including African Americans, Latinos, Asian Americans, and women.

Advocates of descriptive representation suggest that a diverse courtroom is important for two reasons. First, it may lead to symbolic representation or “intangible psychological benefits,” such as perceptions of trust (e.g., Garcia & Sanchez, 2008). In comparison to Whites, African Americans and Latinos are more skeptical of the notion they receive equal treatment, are less trusting of court authorities, and believe courtroom decisions are influenced by political considerations (Brooks & Jeon-Slaughter, 2001; Rottman, 2000, p. 6). By simply being in positions of power, it is assumed that racial and ethnic minorities can improve these negative perceptions by acting as role models and compensating for historical and continued injustices (Phillips, 1998, p. 228; see also Mansbridge, 1999). These expectations, moreover, are shared among judges themselves, as African American judges believe descriptive representation to be important for building a sense of trust toward the judiciary (Smith, 1983). In turn, the presence of a diverse judiciary that “looks like America” is said to contribute to the perception that the judicial branch is a legitimate institution (Walker & Barrow, 1985, p. 597).

Second, descriptive representation may translate into important substantive or policy-oriented outcomes. According to this view, racial and ethnic minorities and women bring with them “different points of view” or “certain qualities of the heart and mind” to bench, such as a sense of fair rule and more equitable justice (Goldman, 1978-1979, p. 494; Songer et al., 1994; Walker & Barrow, 1985). However, these “different points of view” are not based on ideology, but rather on experiences with discrimination (Scherer, 2004-2005). Research focusing on judges’ career paths, for example, suggests that minorities are not afforded the same opportunities as their White counterparts (Walker & Barrow, 1985), as they are more likely to graduate from public law schools, hold government positions, and earn less money throughout their careers (Goldman, 1994-1995; Slotnick, 1983-1984). Consequently, African Americans and Latinos alike are expected to rule in favor of those policy issues considered to be salient to their respective groups, such as discrimination and criminal cases (Goldman, 1978-1979; Songer et al., 1994; Walker & Barrow, 1985).

The extant research focusing on the relationship between descriptive representatives and voting behavior in the courtroom demonstrates rather mixed results, however (Scherer 2004-2005). For example, African American judges in the federal courts are no more likely than their White colleagues to rule in favor of Black policy issues (i.e., voting rights, school desegregation, affirmative action, and employment discrimination cases) and employment discrimination cases (Farhang & Wawro, 2004; Gottschall, 1983-1984; Segal, 2000, p. 174; Walker & Barrow, 1985; see also Martin & Pyle, 2002). Across cases involving individual voting-rights, however, Black judges are more likely than non-Black judges to rule in favor of the plaintiff (Cox & Miles, 2008). More recent work also shows significant differences in voting behavior between Black and White judges in affirmative action cases. Using semiparametric matching methods, Kastellec (2013) finds that the average probability of supporting an appellant in an affirmative action suit is about 90% (p. 177). At least in affirmative action cases, therefore, the finding implies that Black judges are cohesive in their voting behavior.

Across criminal cases, the results are also mixed. For example, Walker and Barrow (1985) find that the race of the judge does not play a significant role in the voting behavior of judges appointed by President Carter. Segal (2000) also shows similar results in her study of Clinton’s federal-court appointees. More specifically, Segal (2000) finds that Black judges are no more likely than their White colleagues to rule in favor of the defendant. Still, others demonstrate important differences between Black and White jurists (Collins & Moyer, 2008; Gottschall, 1983-1984; Scherer, 2004-2005). Focusing on the voting behavior of Carter’s appointees, for example, Gottschall (1983-1984) shows a “dramatic” difference between Black and White judges in criminal court cases. Scherer (2004-2005) also demonstrates that Black judges are more likely to rule in favor of the defendant in search and seizure cases. While the voting behavior of Black judges remains consistent across different Democratic presidential administrations, behavioral differences between Black and White judges are conditioned by the appointing president’s policy stance toward crime. These last findings, moreover, are reinforced by more recent work that examines the intersectionality of race and gender, as minority women are also more likely to rule in favor of the defendant (Collins & Moyer, 2008).

In comparison to African American judges, though, our knowledge of Latino voting behavior is quite limited. Different from theoretical expectations, Latino judges in the lower federal courts are less likely to rule in favor of the defendant in criminal cases (Manning, 2004), but no more likely than non-Latino judges to rule against the plaintiff across race discrimination and employment discrimination claims more generally (Farhang & Wawro, 2004, footnote 16; Manning, 2004). To explain these different results, Manning (2004) reasons that Latino jurists represent a “special cadre” within their own ethnic group since Latino elites reflect a smaller percentage of the Latino population. In this regard, it is possible that Latino judges do not share the same policy preferences as the rest of the Latino population. Manning (2004) also suggests that Latino judges may be subject to extralegal influences, such as ideology and judicial norms and culture, which can mitigate the role of discrimination in voting behavior (p. 11). In all, the empirical findings suggest that the theory of descriptive representation may not necessarily explain more favorable voting behavior among all underrepresented groups in the courts.

The Role of Claimant Effects

Perhaps one reason why studies find mixed results and unexpected differences in behavior is because they do not account for the race and ethnicity of the claimant and the role they might have on the behavior of African American and Latino judges. According to Steffensmeier and Demuth (2001), judges rarely have complete information about cases (p. 147). To reduce uncertainty, therefore, judges rely on a number of different sources for their information, ranging from the facts of the case and legal precedent to amicus curiae briefs and the use of case law by the appealing and defending parties. Additionally, judges may also rely on the appellants’ background characteristics to facilitate their rulings, including the race, gender, and social class of the appellant (Steffensmeier & Demuth, 2001, p. 145). Acting as informational cues, the presence of a claimant with similar characteristics may trigger feelings of commonality that highlight experiences with discrimination that can lead to more favorable rulings (Steffensmeier & Demuth, 2001, p. 145). This is not to suggest, however, that descriptive representatives engage in bias behavior. Rather, descriptive representatives “level the playing field” and ensure that racial and ethnic minorities do not receive harsher treatment than they deserve (Welch et al., 1988, p. 127).

This argument has been largely tested across courts at the state and local level. Welch et al. (1988), for example, find that African American judges are more likely to send White defendants to prison and sentence Black defendants to jail for shorter periods of time. Female jurists are also more likely to treat men and women defendants more equally, countering the more paternalistic behavior of male judges who have a tendency to give lighter sentences to female defendants (Gruhl, Spohn, & Welch, 1981). Still, others show that African American and Latino judges tend to rule less favorably toward racial group members and coethnics (Spohn, 1990; Steffensmeier & Britt, 2001; Uhlman, 1978). In the state district courts in El Paso, Texas, for example, Holmes et al. (1993) find that Latino judges are more likely to rule against both Whites and Latinos in criminal cases. Steffensmeier and Britt (2001) also find a similar pattern among African American judges in Pennsylvania, as Black judges are more likely to sentence Black and White defendants to prison than their White colleagues.

Several explanations have been offered to explain these unintended results. As judges who are subject to partisan and nonpartisan elections, some argue that the voters can screen out minority candidates with different points of view (Spohn, 1990; Uhlman, 1978). Still others contend that judges pursue nonpolicy goals, such as collegiate norms that emphasize conformity within the court (Spohn, 1990; Welch et al., 1988). The selection process can also have an important effect on voting behavior (e.g., Brace & Hall, 1997; Hall & Brace, 1992). Holmes et al. (1993), for example, argue that minority judges may be subject to pressures from the local community to find justice for the victim. Similarly, Hall and Brace (1989) reason that judges who disagree with their constituents’ preferences must alter their behavior and be careful not to distinguish themselves from the rest of the court, especially among those policy issues considered to be salient or controversial (p. 396).

In the federal courts, however, the selection process is much different, as judges are appointed and given lifetime tenure on good behavior. Federal judges, moreover, are assumed to have a greater deal of latitude to vote according to their most preferred preferences (Rhode, 1972; Rhode & Spaeth, 1976, p. 72). In the U.S. Courts of Appeals, especially, the ability to pursue their individual preferences is reinforced by the low probability of being appointed to the Supreme Court and its de facto “court of last resort” status, which can moderate other goals, such as career mobility, and reduce the probability of appellate-court decisions being overturned by higher-court authorities.² At least in the U.S. Federal Courts, therefore, there is good reason to believe that the voting behavior of racial and ethnic minority judges will be conditioned by the presence of coethnic or coracial claimants. Thus, I hypothesize the following:

Claimant-Effects Hypothesis: Minority judges will be more likely to rule in favor of coracial or coethnic claimants.

Data and Method

Focusing on the U.S. Courts of Appeals, I analyze 3,985 individual judge votes across a universe of Title VII employment discrimination cases (516 cases) based on race and national origin. The period of study is between 2001 and 2009.³ Since the data contain a universe of decisions in which judges are randomly assigned to three-member panels, the data set captures a representative pool of sitting Latino and African American appellate-court judges during the period of study.⁴ Specifically, the data set includes 13 Latino and 17 African American judges in the U.S. Courts of Appeals. Five additional judges from the U.S. District Courts (one Latino and four African American judges) are also included in the data set. Serving as a judge designate, these judges acted in a temporary capacity to improve the efficiency of the U.S. Appeals Courts. All decisions are published in the Federal Reporter and are accessible through Westlaw.⁵

I focus on Title VII claims for several reasons. First, employment discrimination provides an excellent opportunity to generalize about African American and Latino voting behavior. In comparison to other areas of law, employment discrimination cases represent a large share of the federal-court workload. According to Clermont and Schwab (2004), “employment discrimination cases constitute an increasing fraction of the federal civil docket, now reigning as the largest single category of cases at nearly 10 percent” (p. 429). Second, I also expect divergence in judicial behavior between descriptive representatives and White judges to be conditional on the presence of policy issues considered salient to racial and ethnic minorities (Songer et al., 1994). Despite the passage of the Civil Rights Act 1964 (Title VII), discrimination in the workplace continues to be an important problem facing both groups (e.g., Acs & Loprest, 2009; Coleman, 2003; Darity & Mason, 1998; Espino & Franz, 2002; Goldsmith, Hamilton, & Darity, 2006; Kenny & Wissoker, 1994). These experiences, moreover, have translated into divergent attitudes toward discrimination between Whites and racial and ethnic minorities (Pew Hispanic Center, 2006; Pew Research Center, 2005; Rodriguez, 2008). Third, Title VII claims based on race and national origin offer judges more discretion to rule their most preferred policy position, as studies demonstrate circuit court splits over the interpretation of Supreme Court precedent (Green, 1999, pp. 997-998; Lanctot, 2001). Finally, by narrowing the case selection to discrimination cases in the workplace, I improve the ability to control for legal precedent, as discrimination cases based on discrimination, retaliation, and hostile work environment maintain similar legal frameworks.

Following Segal (2000), the unit of analysis is the individual vote of each judge per grievance within a case.⁶ More specifically, this includes all judge-decisions involving a discrimination, hostile-work environment, or retaliation claim.⁷ In the U.S. Courts of Appeals, individual cases can involve a number of disputes that can range from a single dispute to multiple grievances. If a case involved a hostile work environment claim and a retaliation claim, for example, I recorded two individual votes per judge for a total of six observations. I also recorded all grievances per claimant if a case included more than one claimant. A case involving two claimants, for example, rendered four individual votes per judge if both claimants appealed two grievances apiece. Since there are three judges per panel, the total number of observations or votes would be 12. If, however, multiple claimants were treated as a collective group by the panel of judges in the opinion, such as a class action lawsuit, all claimants were then recorded as if they were one individual. Of the 516 cases recorded between 2001 and 2009, the collection strategy led to 2,401 individual votes involving discrimination claims, 488 votes involving hostile work environment, and 1,096 votes involving claims of retaliation.

This collection strategy has several advantages. Different from other research, which records grievances in the aggregate (e.g., Scherer, 2004-2005), one is able to account for the full range of decisions made by judges in the U.S. Courts of Appeals.⁸ Second, one is able to account for different types of discrimination claims, such as claims based on retaliation, discrimination, and hostile work environment. Otherwise, researchers are limited to explaining the voting behavior of judges across discrimination cases more generally. Finally, and most pertinent to this study, it is possible to account for decisions involving multiple claimants from diverse racial and ethnic backgrounds within a case. Not only does this strategy improve one’s ability to examine how judges rule toward specific claimants but it also provides an added dimension to the study of descriptive representation by focusing on the direct consequences that judges’ decisions can have on racial and ethnic minorities who come before the courts to appeal or defend their case.

Dependent Variable

The main dependent variable is Favorable Vote, which captures the individual votes for each judge per grievance in the analysis. A vote in favor of the claimant is coded as “1” (26%). More specifically, these decisions include votes in favor of employees who file discrimination claims against their employer, supervisor, or coworker.⁹ By contrast, a vote against the claimant is coded as “0” (74%). In this case, a judge rules against the employee. Although the distribution of the dependent variable illustrates the difficulty in winning a race discrimination case (Selmi, 2000-2001), it also suggests that a vote in favor of the claimant is substantively more meaningful since discrimination in the workplace continues to be an important problem facing racial and ethnic minorities (e.g., Acs & Loprest, 2009; Coleman, 2003; Darity & Mason, 1998; Espino & Franz, 2002; Goldsmith et al., 2006; Kenny & Wissoker, 1994).

Given the above collection strategy, which records all judge-votes within a case, and the dichotomous nature of the dependent variable, I employ a Generalized Estimating Equation regression model (GEE) with a Logit link function (Liang & Zeger, 1986). Logistic regression is not preferable because it assumes that all observations on judges are independent of one another (Farhang & Wawro, 2004; Zorn, 2001, 2006). This is particularly problematic since judges appear multiple times in the data set and because judges serving on “three-judge panels are correlated in ways that are difficult to observe” (Farhang & Wawro, 2004, p. 321). The collection strategy can also lead to unobserved correlation because it increases the number of times judges appear in the data set. The collection strategy may also lead to within-case correlation since judges are making decisions on a related set of grievances on the same day for the same claimant. In all, the use of Logistic Regression analysis would lead to bias estimates and overconfidence in the results.

GEE is preferable because it relaxes the assumption of independence and accounts for unspecified correlation in collegial decision-making bodies, such as the Supreme Court and the U.S. Courts of Appeals (Farhang & Wawro, 2004; Zorn, 2001, 2006). The method also accounts for correlation that occurs when individuals vote on a related set of issues on the same day. For example, Zorn (2001) compares GEE to Logistic regression and finds that GEE can provide more precise estimates when it comes to modeling the voting behavior of committee members in the House Judiciary Committee. In this case, the votes involved four separate but related articles of impeachment against President Clinton on December 11, 1998. Thus the method is appropriate since the data set in this analysis involves judges who belong to small-collegial bodies and because it involves individual judges who vote on a number of related issues during a case.

GEE also has several important advantages. Most notably, “it provides the ability to use information about the nature of the intra-cluster dependence to recover more precise estimates” (Zorn, 2006, p. 333). Since I am interested in individual-level variables and because judges appear in the data set multiple times within and across cases, I chose to cluster around each individual judge (Collins & Martinek, 2011; Collins & Moyer, 2008). According to Zorn (2006), “there is good theoretical reason to cluster around the judge since judges attempt to maintain consistency in their voting records” (p. 333). Clustering around the judge also represents a more cautionary approach, as the size of the standard errors under clustering tend to increase for variables that measure judges’ characteristics (Zorn, 2006). I then estimated an “exchangeable” correlation structure, which assumes that correlations are the same across each individual judge. The standard errors are also robust to allow for correlation for each individual judge.¹⁰

Independent Variables

The main independent variables are Latino Judge and African American Judge. Latino Judge is a dichotomous variable where “1” indicates a decision by a Latino judge and “0” indicates a decision by a non-Latino judge. African American Judge is similarly coded. A coding of “1” indicates a decision by an African American judge and a coding of “0” indicates a decision by a non-Black judge. Excluding Asian American judges from the analysis, White judges serve as the baseline for comparison.¹¹ Table 1 presents the descriptive statistics for the main independent variables in the analysis, showing the distribution of votes by the race and ethnicity of the judge and the claimant. In all, the cell percentages in the total column show that the decisions involving African American and Latino judges account for 9.6% (382) and 4.4% (174) of the observations, respectively. Next, I interacted African American Judge with Black Claimant to test the extent to which racial cues condition the voting behavior of African American judges. When the interaction term, African American Judge X Black Claimant, is “1” it accounts for possible coracial behavior. While I would ideally like to control for coethnic decisions involving a Latino Judge and a Latino claimant, the number of observations is too small to do so.¹² Therefore, an interaction term accounting for Latino judges ruling on Latino claimants was excluded from the analysis. The cell percentages in Table 1 demonstrate that the percentage of decisions involving an African American judge and a Black claimant is 6.6% (264). The row percentages in Table 1 also highlight the percentage of judge decisions across claimants from different racial and ethnic backgrounds. In comparison to other claimants, African American, Latino, and White judges were more likely to be assigned to a case involving a Black claimant. This distribution, however, is not surprising since Black claimants represent the largest group of claimants during the period of study.

Table 1.

Distribution of Votes by the Race and Ethnicity of the Judge and the Claimant in Employment Discrimination Claims (2001-2009).

	Black claimant	Latino claimant (non-Black)	Other minority claimant	White claimant (non-Latino)	Total
African American judge
Row %	69.1%	6.3%	7.3%	17.3%	100%
Cell %	6.6%	0.6%	0.70%	1.7%	9.6%
N	264	24	28	66	382
Latino judge
Row %	55.2%	20.1%	11.5%	13.2%	100%
Cell %	2.41%	0.9%	0.50%	0.6%	4.4%
N	96	35	20	23	174
White judge
Row %	63.8%	12.5%	8.6%	15.0%	100%
Cell %	54.9%	10.8%	7.43%	12.90%	86.0%
N	2,189	430	296	514	3,429

Note. For each cell, the top row depicts row percentages and the second row depicts total percentages. The number of observations is in parentheses. Since total percentages are rounded, not all row percentages will total 100%.

In addition to the variables of interest, I also control for a host of background characteristics, which have been found to have a significant influence on judicial behavior. Table 2 provides the descriptive statistics for all control variables. Specifically, I include a variable for Female Judge since female jurists are more likely to rule in favor of the claimant in employment discrimination cases (Songer et al., 1994; but see Segal, 2000). This variable is coded as “1” to indicate the presence of a female judge and “0” to indicate the presence of male judges. I also control for the Age of the judge at the time of the case decision, as Manning, Carroll, and Carp (2004) find different age cohorts to have a significant influence in discrimination cases. Career backgrounds, such as prosecutorial experiences, can also have an important and socializing effect on behavioral outcomes. For example, Tate (1981) finds that former prosecutors are more likely to rule conservatively. Former Prosecutor is a dichotomous variable that is coded as “1” if a judge was a former prosecutor or attorney general prior to being appointed to the federal court.¹³ Also, since I am interested in the behavior of appellate-court judges, I control for Designate Judges. Designate Judge is coded as “1” if a judge is from the U.S. District Courts or other specialty federal courts, such as the International Trade Court. All appeals-court judges, therefore, are coded as “0.”¹⁴

Table 2.

Descriptive Statistics (Control Variables).

Variables	Mean	SD	Min	Max
Female judge	0.194	0.396	0	1
Age of judge	63.873	9.733	39	98
Former prosecutor	0.427	0.495	0	1
Designate judge	0.061	0.240	0	1
Judge ideology	0.129	0.362	−0.580	0.577
Panel ideological median	0.146	0.313	−0.538	0.577
Circuit ideological median	0.247	0.203	−0.309	0.549
Lower court decision (favorable vote)	0.061	0.240	0	1
Amicus curie brief	0.055	0.228	0	1
Discrimination	0.603	0.489	0	1
Hostile	0.122	0.327	0	1
Latino claimant	0.123	0.328	0	1
Black claimant	0.640	0.480	0	1
Asian claimant	0.048	0.214	0	1
Middle Eastern claimant	0.030	0.170	0	1
American Indian claimant	0.009	0.092	0	1
1st Circuit	0.037	0.189	0	1
2nd Circuit	0.045	0.208	0	1
3rd Circuit	0.018	0.133	0	1
4th Circuit	0.047	0.213	0	1
5th Circuit	0.080	0.271	0	1
6th Circuit	0.074	0.261	0	1
7th Circuit	0.272	0.445	0	1
8th Circuit	0.183	0.387	0	1
10th Circuit	0.072	0.259	0	1
11th Circuit	0.053	0.223	0	1
D.C. Circuit	0.077	0.266	0	1
2002	0.019	0.136	0	1
2003	0.175	0.380	0	1
2004	0.190	0.393	0	1
2005	0.130	0.337	0	1
2006	0.108	0.311	0	1
2007	0.102	0.302	0	1
2008	0.089	0.285	0	1
2009	0.068	0.252	0	1

Note. N = 3,985.

The third cluster of variables accounts for attitudes, strategic bargaining, and intrabranch relations. Following Segal and Spaeth (1993), I control for judges’ attitudes or Judge Ideology. The attitudinal model predicts that judicial behavior is a function of attitudes vis-a-vis the facts of the case (Segal & Spaeth, 1993). Therefore, I expect judges with a more liberal ideology to vote in favor of the claimant. To measure attitudes, I utilize Giles, Hettinger, and Peppers’ (GHP; 2001) coding scheme, which ranges from −1 (most liberal) to 1 (most conservative).¹⁵ A negative coefficient, therefore, indicates that judges with more conservative ideologies are less likely to rule in favor of the claimant.

However, judges do not make decisions in a vacuum (Collins & Martinek, 2011). The strategic model of voting behavior, for example, posits that judges “realize that their ability to achieve their goals depends on the consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act” (Epstein & Knight, 1998, p. 10). First, I control for Panel Ideological Median since judges representing the ideological “middle” of collegial panels can influence individual voting behavior (Collins & Moyer, 2008). Panel Ideological Median is measured as the median GHP ideological score of the three judges sitting on a panel.¹⁶ Decisions may also be overturned by a court en banc if rulings do not conform to the ideological preferences of the circuit (Van Winkle, 1997). Circuit Ideological Median is measured as the median GHP ideological score at the time of the decision. For each variable, I expect ideologically conservative panels and circuits to be negatively associated with favorable decisions. Finally, to account for routine cases, I also control for Lower Court Decision (Favorable Vote; see Collins & Moyer, 2008). This variable is coded as “1” if the lower federal court ruled in favor of the claimant or employee and “0” if otherwise.¹⁷

The data set also provides the unique opportunity to control for the facts of the case. Most notably, I control for the race and ethnicity of the claimant, including Black Claimant, Latino Claimant (non-Black), Asian American, Middle Eastern Claimant (non-Black), and American Indian Claimant. Following research that focuses on the relationship between discrimination, race, and national origin (Kim, 1999; see also Espino & Franz, 2002; Goldsmith et al., 2006), I expect judges to be less likely to rule in favor of Black claimants than any other racial and ethnic group. All claimant variables are coded as “1” to indicate claimants’ racial and ethnic backgrounds and “0” if otherwise. Non-Latino White claimants, therefore, serve as the baseline for comparison.¹⁸ I also control for Amicus Curiae briefs, as studies demonstrate that special interest groups can influence judicial behavior (Martinek, 2006). Briefs intended to influence a favorable outcome for racial or ethnic minorities are coded as “1” and “0” if otherwise. Finally, I account for Discrimination Claims and Hostile Work Environment Claims, holding retaliation claims as a baseline for comparison (Parker, 2009). Both claim types are coded as “1” to indicate the presence of a discrimination or hostile work environment issue and “0” if otherwise.¹⁹

The last cluster of variables accounts for circuit norms and the political context during the time of the decision (see Farhang & Wawro, 2004). Specifically, I control for the each of the 11 circuits in the U.S. Courts of Appeals, including the appeals court for the District of Columbia. Since the 9th Circuit Court of Appeals tends to be more liberal than other circuits (Scherer, 2004-2005), the 9th Circuit shall serve as the baseline for comparison. Finally, I include annual dummy variables to control for the political context in which decisions were made across Title VII claims.

Results

Table 3 compares the proportion of favorable votes of African American and Latino judges with White judges. The results indicate that African American judges are more likely than White judges to rule in favor of a claimant (p < .10), as the percentage of favorable votes among African American judges is about 4 percentage points greater than White judges. Unexpectedly, the bivariate results also show that Latino judges are less likely than their White colleagues to rule in favor of the claimant. In fact, the proportion of favorable rulings among Latino judges is about 9 percentage-points less than White judges and more than 13 percentage-points less than African American judges. Table 3 also examines how minority and nonminority judges behave toward coracial claimants. Confirming the Claimant Effects Hypothesis, the bivariate results indicate that African American judges are more likely than White judges to rule in favor of Black claimants (p < .01). These differences, moreover, are quite substantial, as the proportion of favorable votes is about 9 percentage-points greater than their White colleagues. In all, these bivariate findings suggest that African American judges are most likely to rule in favor of claimants and that they are conditioned by the presence of racial cues.

Table 3.

Proportion of Favorable Votes by White, African American, and Latino Judges Across Employment Discrimination Cases Based on Race & National Origin (2001-2009).

	All claimants		Black claimant
	Favorable vote	SE	Favorable vote	SE
Race & ethnicity of judge
White judge	0.26	0.01	0.22	0.01
African American judge	0.30†	0.02	0.31**	0.03
Latino judge	0.17**	0.03	—	—

Note. The significance test is a pairwise comparison of the proportion of favorable votes for White versus Latino judges and White versus African American judges (t test). The dependent variable is a vote in favor of the claimant.

†

p <. 10, two-tailed. *p < .05, two-tailed. **p < .01, two-tailed. ***p < .001, two-tailed.

The next step in the analysis is to test whether the above patterns still hold once alternative explanations of judicial behavior are taken into account in a multivariate model. Table 4 presents two GEE regression models. Specifically, Model 1 presents the constrained model, which includes controls for the race and ethnicity of the judge. White judges, therefore, serve as the baseline category. Model 2 presents the fully specified model, which includes the multiplicative of African American Judge and Black Claimant to test the Claimant-Effects Hypothesis. Specifically, the intent here is to examine the extent to which claimant cues influence judges’ voting behavior.

Table 4.

Generalized Estimating Equation (GEE) Logistic Model of Black & Latino Judge Voting Behavior (2001-2009).

	Model 1 (constrained model)			Model 2 (full model)
Variables	Coefficient	Robust SE	Marginal effects	Coefficient	Robust SE	Marginal effects
Latino judge	−0.932*	0.444	−0.127	−0.932*	0.447	−0.127
African American judge	0.371†	0.195	0.071	−0.036	0.290	−0.006
African American Judge X Black Claimant	—	—	—	0.629*	0.317	0.126
Female judge	0.292†	0.162	0.054	0.302†	0.161	0.056
Age of judge	−0.002	0.008	0.000	−0.001	0.008	0.000
Former prosecutor	−0.127	0.168	−0.022	−0.142	0.168	−0.025
Designate judge	−0.139	0.272	−0.024	−0.139	0.275	−0.024
Judge ideology	−0.508*	0.222	−0.089	−0.530*	0.221	−0.093
Panel ideological median	0.376	0.284	0.066	0.393	0.280	0.069
Circuit ideological median	−0.630	0.616	−0.111	−0.659	0.617	−0.116
Lower court decision (favorable vote)	2.071***	0.223	0.467	2.085***	0.225	0.470
Amicus curiae brief	0.769**	0.264	0.158	0.810**	0.260	0.168
Discrimination case	−0.054	0.127	−0.010	−0.058	0.126	−0.010
Hostile work environment case	0.335*	0.151	0.063	0.333*	0.151	0.062
Latino claimant (non-Black)	0.463†	0.259	0.089	0.448†	0.258	0.086
Black claimant	−0.194	0.162	−0.035	−0.268	0.167	−0.048
Asian claimant	−0.190	0.356	−0.032	−0.191	0.353	−0.032
Middle Eastern claimant	−0.112	0.340	−0.019	−0.136	0.339	−0.023
American Indian claimant	−2.772***	0.686	−0.213	−2.667***	0.737	−0.210
Constant	0.246	0.684		0.259	0.684
Wald chi-square	322.90			318.40

Note. N = 3,985 (516 cases). ρ = .0556. The dependent variable is a binary variable where 1 equals “votes in favor of claimant.” Both models cluster around the individual judge (305 clusters). Circuit and annual dummies are not reported to conserve space. The marginal effects depict the change in the predicted values as x changes from its minimum to maximum values.

†

p < .10, two-tailed. *p < .05, two-tailed. **p < .01, two-tailed. ***p < .001 two-tailed.

Overall, the models demonstrate that descriptive representatives are not monolithic in their behavior, as they do not always rule in favor of claimants in Title VII cases. In Model 1, for example, African American judge is positive and significant (p < .10). Thus African American judges are more likely than non-Black judges to rule in favor of the claimant. Latino Judge, however, is negative and significant (p < .05), suggesting that Latino judges are less likely than non-Latino judges to rule in favor of the claimant. The discrete change in the predicted probability further illustrates this point, as the presence of a Latino judge decreases the probability of ruling in favor of the claimant by 12.7%. Overall, the results support prior work that finds Latino judges to be more conservative in their voting behavior (Homes et al., 1994; Manning, 2004). To explain this outcome, Manning (2004) contends that ideology may play an important mediating role in the behavior of Latino judges. However, a separate analysis indicates that Judge Ideology, when interacted with Latino Judge, does not have a significant influence on individual voting behavior.²⁰ An alternative explanation of Latino voting behavior emphasizes the socialization of judges. Theories of socialization reason that judges are subject to norms and collegial pressure that would cause judges to conform to more dominant preferences in the circuit (Carp & Wheeler, 1972; see also Collins & Martinek, 2008; Hettinger, Martinek, & Lindquist, 2004). For example, recent surveys of Latino lawyers show that Latinos in the legal profession have sought to blend in with the dominant culture of the firm to avoid negative stereotypes and stigma (Chavez, 2011; Cruz & Molina, 2009). Segal (2000), however, contends that descriptive representatives may “feel compelled to perform in the opposite manner to counterbalance internal or external criticism of their job performance” (p. 147). Research focusing on the appointment of federal-court judges may support this view, as Latino judges tend to receive lower American Bar Association ratings (Sen, 2012), experience significant delays in confirmation by the Senate (Bell, 2002; Nixon & Gross, 2001), and work in an environment that is less ethnically diverse. Thus Latino voting behavior may be a product of the social and institutional environment in which they act.

Model 2 next introduces the interaction term, African American Judge X Black Claimant, to test the Claimant Effects Hypothesis. The results from the fully specified model (Model 2) show that African American judges are conditioned by the presence of coracial claimants. For example, African American X Black Claimant is positive and significant (p < .05), suggesting that African American judges are more likely to rule in favor of Black claimants.²¹ To illustrate this relationship, Figure 1 shows the probability of Black and White judges ruling in favor of a Black claimant. Holding all other control variables to their respective means and modes, the figure shows that the probability of ruling in favor of a Black claimant is 32.93% for African American judges and 20.69% for White judges. This outcome implies substantive differences in the voting behavior of Black and White judges, as the change in the predicted probability is about 12 percentage points greater for African American judges when a Black claimant is present. The uninteracted term, African American Judge, is not significant in the fully specified model (Model 2), however. While African American judges are more likely to rule in favor of Black claimants, the insignificant coefficient for African American Judge suggests that Black judges are no more likely than their non-Black colleagues on the bench to rule in favor of non-Black claimants. In all, these findings provide empirical support for the argument that Black claimants serve as important racial cues that lead to more favorable votes.

Figure 1.

Probability of Black and White judges ruling in favor of Black claimants, (2001-2009).

In addition to race and ethnicity, the fully specified model (Model 2) in Table 4 demonstrates that other judge characteristics are important for understanding individual judge votes. Female Judge, for example, is significant and positive (p < .10), suggesting that the female judges are more likely than their male counterparts to rule in favor of the claimant in discrimination claims based on race and national origin. Although the scholarship on gender effects is somewhat mixed (e.g., Segal, 2000; Songer et al., 1994; Walker & Barrow, 1985), the model provides further support for the argument that divergence in voting behavior depends on cases that broadly emphasize equality and full membership into the community (Songer et al., 1994, p. 429). Thus divergence in voting behavior between female and male jurists may not necessarily be conditioned by gender-specific cases, such as gender discrimination and sexual harassment.

Attitudes and intercourt relations are also important for understanding individual voting behavior. For example, Ideology is also positive and significant (p < .05). Following previous work that focuses on the relationship between attitudes and judicial behavior (Segal & Spaeth, 1993), the fully specified model indicates that the likelihood of voting in favor of the claimant decreases as judges’ ideology becomes more conservative. Interestingly, ideology does not have the greatest substantive impact on judicial behavior once background characteristics and other institutional factors are taken into account. Model 2, for example, shows that as attitudes become more conservative, the probability of a favorable ruling decreases by about 9%. In all, these results provide further support for the contention that background characteristics have an independent and substantive effect on judicial behavior. Accounting for more routine cases, Lower Court Decision (Favorable Vote) is also significant and positive (p < .001). The 47% change in the predicted probability is expected, though, as the appellate courts rarely overturn lower-court decisions.

The results in Table 4 also demonstrate that the facts of the case can have an important influence on the behavior of judges. For example, the presence of an Amicus Curiae Brief has a positive and significant correlation (p <. 01) with favorable votes toward the claimant. Hostile Work Environment Case is also significant and positive (p < .05), suggesting that claimants are more likely to receive favorable votes in hostile work environmental claims than other kinds of grievances. The results from Model 2 also demonstrate that racial and ethnic minorities are also treated differently. For example, Latino Claimant is significant and positive (p < .10), but American Indian Claimant is significant and negative (p < .001). Latino claimants, therefore, are more likely to receive more favorable votes than other minorities, including Black claimants. American Indian claimants, by contrast, tend to fare much worse, as they are less likely to receive a favorable vote. Overall, this finding may reflect judges’ overt skepticism toward particular minority groups, including Black claimants who are overrepresented in the federal court system (Selmi, 2000-2001).²²

Discussion and Conclusion

Over the years, the lower federal courts have become more diverse in their racial and ethnic composition. Not only is racial and ethnic diversity important for establishing a sense of symbolic representation but it can also lead to more substantive outcomes (Pitkin, 1967). This study examined the latter of the two merits of descriptive representation by focusing on the voting behavior of African American and Latino judges across Title VII employment discrimination claims in the U.S. Courts of Appeals. Following research on the state and lower courts, this study emphasized the role of claimant effects, arguing that the presence of a coracial claimant can play an important and mediating role in the behavior of racial and ethnic minority jurists.

The results from this study demonstrate that African American and Latino judges are not monolithic in their voting behavior. African American judges, for example, are more likely to rule in favor of racial and ethnic minorities, especially when a Black claimant is present. Overall, this finding points toward a greater need to consider factors, such as claimant effects, that can condition the behavior of minority jurists in the courtroom. While claimant cues are theorized to trigger feelings of commonality for Black judges, the results also cause one to theorize about claimant cues and their ability to heighten a sense of group solidarity, such as perceptions of group consciousness or linked fate among African American judges (Dawson, 1994). Indeed, Scherer (2004-2005), in her analysis of African American voting behavior in the courts, suggests that linked fate plays an important role in explaining similarities in attitudes toward crime between Blacks and Black elites. Overall, analysis in this area would greatly improve our understanding of descriptive representation and judicial behavior.

The voting behavior of Latino judges is much different, however. Contrary to theoretical expectations, Latino judges have a tendency to rule in the opposite direction by handing down less-than favorable decisions toward claimants. The socialization of Latino judges provides one possible explanation for this outcome, as more conservative behavior may be due to peer pressure, criticism, and stigma in the courts (Segal, 2000). Although there is still reason to suspect that this more conservative behavior may be mediated by the presence of a coethnic claimant, the underrepresentation of Latinos in the U.S. Courts of Appeals made this inquiry unfeasible. To this extent, further analysis of claimant-effects and Latino judicial voting behavior would depend on greater ethnic diversity and efforts by the president to appoint more Latinos to the federal courts.

These differences in behavior speak directly to scholars who are interested in the relationship between descriptive and substantive representation in the federal courts (Scherer, 2004-2005; Segal, 2000; Songer et al., 1994; Walker & Barrow, 1985). Employment discrimination claims represent one of the largest of the federal-court workload (Clermont & Schwab, 2004). Over the years, however, the federal courts have made it more difficult to win discrimination cases (Selmi, 2000-2001). Consequently, the number of reversals has been extremely low (Selmi, 2000-2001). African American judges, however, can contribute to the development of Title VII policies by crystallizing issues of race and ethnicity to their panel colleagues. Assuming that African American judges are on the winning side of the panel decision, they will have greater opportunities to write the majority opinion, set the policy agenda, and challenge the content of those opinions that can act as legal barriers to more winnable claims.

The study also provides an added dimension to the study of descriptive representation by examining the more direct impact diversity can have on claimants themselves. In the U.S. Courts of Appeals, Blacks claimants are overrepresented in cases involving Title VII employment discrimination claims. Moreover, the number of filings has remained quite high, as the Equal Employment Opportunity Commission reported more than 35,000 individual race-related claims in 2011 alone (Equal Employment Opportunity Commission [EEOC], n.d.). The findings from this analysis suggests that African American judges can level the playing field by being more responsive to Black claimants when they go to appeal or defend their case. As Welch et al. (1988) suggest, “this level of responsiveness may ultimately ensure that racial and ethnic minorities do not receive harsher treatment than they deserve” (p. 127). Still, Black claimants may continue to face an uphill battle since African American judges continue to be underrepresented in the federal courts.

The study of descriptive representation and voting behavior toward specific minority groups prompts further investigation of Latino and African American judicial behavior. For example, does the presence of African American and Latino judges on an appeals-court panel improve the probability that claimants will win their discrimination claims? Already, a number of studies are beginning to focus on those factors that predict panel outcomes (Boyd, Epstein, & Martin, 2010; Cox & Miles, 2008; Farhang & Wawro, 2004; Kastellec, 2013). While research in this area typically focuses on the social composition of panels, the results from this analysis suggest that the race and ethnicity of the claimant may also play an important mediating role in the behavior of three-judge panels. Indeed, this is an important question for future research because panel outcomes ultimately depend on the cooperation of judges and their panel colleagues. In all, this study provides an important step toward understanding the conditional nature of African American and Latino judicial behavior in the collegial courts.

Footnotes

Acknowledgements

I would like to thank the following faculty for their valuable insight and guidance: Gabriel R. Sanchez, Christine M. Sierra, Michael S. Rocca, Jennifer Segal-Diascro, and María B. Vélez. I would also like to thank Wendy Hansen, Sylvia Manzano, and Francisco Pedraza for their helpful suggestions on earlier drafts. Finally, I would like to thank the editor and anonymous reviewers for their constructive feedback and commentary.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

Notes

Author Biography

Jason L. Morin is an assistant professor of political science at California State University, Northridge. His research focuses on Latino politics and Latino and African American representation in the U.S. Federal Courts.

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