When U.S. Supreme Court Justice Sandra Day O’Connor announced her retirement in the
summer of 2005, President George W. Bush was handed the first opportunity in 11 years to fill a
vacancy on the Court. Appointed by Ronald Reagan in 1981, O’Connor was the first woman
appointed to the high court, and she enjoyed a long and distinguished career. Bush promptly
nominated John G. Roberts, a judge on the U.S. Court of Appeals for the D.C. Circuit, to take
her seat. O’Connor found her potential replacement to be an excellent choice, save one
important factor. "He's good in every way,” she said, “except he's not a woman."
The question of gender representation in federal courts is, as O’Connor’s comment
indicated, one of great interest to judges and other court followers. Recent presidents have made
significant efforts to appoint larger numbers of “non-traditional” (i.e. non white male) judges.
Presidents have done so out of a commitment to expanding opportunity and also because such
efforts can be politically rewarding. In selecting a man to replace the first woman on the
Supreme Court, it is clear that Bush disappointed some observers.
detractors to his record of appointing significant numbers of women to lower federal judgeships
(Carp, Manning, and Stidham 2004; Goldman et. al. 2005). On the other hand, some have
claimed that the Bush administration’s tendency to replace retiring white male judges with
similar nominees suggests that Bush does not consider existing diversity as much as previous
administrations, and, as a consequence, his appointment strategy has not been particularly
effective in increasing opportunities for women (Solberg 2005). Regardless of Bush’s record of
appointing women to the bench, it is clear that gender matters in the highly politicized
appointment process.
But what happens once women jurists don their black robes and take their seats on the
bench? In the end, the debate regarding the gender of judicial nominees centers on a recurring
question that scholars have made numerous attempts to answer: to what extent does gender
diversification in the courts matter in terms of decision-making output? Do women jurists
exhibit behavior which different than that of men? We seek to provide some answers to this
complex question. We do so by testing the applicability of the “critical mass theory” to decision
making in the lower federal courts. In particular, we are interested in learning if women are
1
See Dan Balz and Darryl Fears. “Some Disappointed Nominee Won't Add Diversity to Court.” Washington Post.
Jul 21, 2005. p. A15.
2
Id.
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Convention