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Male Judges Decide Differently? You're Kidding?

Male Judges Decide Differently? You're Kidding?

The New York Times recently reported on, ”Debate on Whether Female Judges Decide Differently…”. In reference to a review of previous decisions by Judge Sonia…

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The New York Times recently reported on, ”Debate on Whether Female Judges Decide Differently…”. In reference to a review of previous decisions by Judge Sonia Sotomayor’s qualifications for a U.S. Supreme Court appointment. The article went on to tell us that “several female judges [are] troubled by this possibility.”

As a former chair of The Philadelphia Bar Association’ Commission on Judicial Selection and Retention whose responsibility it was to evaluate judicial candidates for trial and appellate courts, and in certain instances, for the federal judiciary as well, no one ever inquired about the male judicial candidates’ possibility that they, or we, should be troubled about their decisions, being decided differently on the basis of their gender.

Of course, when female judges fess up that they may see certain issues differently, “gender justice” has become the catchall phrase for opposing women candidates. When the male candidate states that he may see a case issue based on his experiences (most recently, Justice Alito at his confirmation hearing) that was actually applauded as a sign of empathy demonstrating that he could be a constitutional scholar and a human being.

But wait, in that same article, it quoted a lawyer as acknowledging people brought different experiences to the bench; but then erroneously concluded that doing so gave vent to the bias of one’s own experience which would lead to a “wrong result, not a proper one” [emphasis added] -more-So, why doesn’t a male judge feel troubled that he sees things inherently differently?

Don’t we as citizens want unbiased opinions? Then why have we assumed since the beginning of jurisprudence, that it is only a man’s Opinion that is “proper”, and not “wrong”? Have we ever asked if he is “Thinking Like a Man?” Ipso facto, of course he is; but should we question his motives when he reaches a decision? Question his ability to put aside his life experience and biases? Why not? And above all, shouldn’t we ask the threshold question: if it’s thinking like a man that has created and reached wrong Opinions, which have become the precedents for many subsequent Opinions? Moreover, the progeny of his thinking is, of course, ALSO A MAN’S WAY OF THINKING. Astounding? Yet, no one has ever been troubled about that from the first written memorializing of Opinions, reaching back to the Common Law.

Are we to conclude that only female judges in sex discrimination cases are on autopilot and that they are “acting like women?” If so, then let the review begin to determine if male judges rule less favorably towards the plaintiff in sex discrimination in employment cases.

Why are only the women judges’ decisions open to attack? Isn’t that prima facie gender discrimination-an “inherent bias” against female judges?

The real question in this debate is whether female and male judges do decide differently and if so, it is finally time to question all of the prior decisions by men to see if we have erroneously accepted rulings that are inherently biased. All women, including female judges, still do not have full equal rights under the Constitution, and that’s truly astounding. Only black males got the right to vote in 1870 with the passage of the 15th Amendment. While it wasn’t until 50 years later, that all women got only the right to vote. What is more, it represents a genuine bias against the female gender. . So let’s be clear: no women, black or white of any ethnic background have equal rights.

That leads to a “wrong result, not a proper one.” Do men think differently about that?

Women’s Suffrage was left at the altar of the Constitution. And with the deepest irony, our nation, in our march towards equal protection, treated black and white women as “equals”-both omitted from the 15th Amendment-not separate but equal-just separate. Gender simply hasn’t had the Constitution to protect it with an Equal Rights Amendment. That’s a fact. So let us at least show some fundamental fairness when evaluating our women candidates for the Judiciary. Is it just sexism that allows for curve balls to women only? I.e., “She thinks like a woman so she will be biased.”

Women will continue to be stood up at the altar of the Constitution until we, as a People, finally ratify an Equal Rights Amendment. The real question in this debate is: from what do women judges decide differently? Perhaps if we finally have enough women on the bench, we can find the answer.

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