Table of Contents for Supreme Bias
Preface
Acknowledgments
Introduction
Women and people of color are subjected to a variety of forms of bias throughout their lives, including when seeking employment. These biases are also present during the U.S. Supreme Court confirmation process, where women nominees and nominees of color face different hurdles than do their white, male counterparts. This chapter previews the book's theoretical arguments about how gender and racial bias might manifest at the confirmation hearings, why bias in this setting is problematic, and how the data examined here can help explore these issues. This chapter concludes with a preview of the full book.
1.Diversifying the Federal Courts
Throughout American history, U.S. federal courts have been dominated by white, male judges. This chapter examines the progress and efforts made over time to diversify the Supreme Court and the broader federal judiciary. It shows how Supreme Court nominees historically have been chosen, in part, to appeal to important presidential constituencies, and how that practice was eventually expanded to include women and people of color. It highlights successful appointments that diversified the Court in terms of race and gender – such as those of Thurgood Marshall and Sandra Day O'Connor – and others – like William Hastie and Mildred Lillie – who were considered for the Court, but ultimately passed over. It also demonstrates that Democratic presidential administrations have made more efforts to diversify the federal courts than Republican administrations. The chapter concludes by highlighting why racial and gender diversity matters for the judiciary – from building public confidence in courts to affecting judicial behavior.
2.The Supreme Court Confirmation Process
This chapter provides an overview of the U.S. Supreme Court nomination and confirmation process. It discusses how vacancies arise on the Court and the factors presidents consider in making their nominations. It then turns to the role of the Senate, highlighting the important role that the Senate Judiciary Committee's confirmation hearings play in shaping the composition of the Supreme Court. It explains how and why the senators use the hearings to grill nominees on a host of issues, including their constitutional preferences, positions on the pressing issues of the day, opinions about iconic cases, and personal backgrounds. This chapter also examines how race and gender have always been relevant to the confirmation hearing process and details the factors that shape Senate support or opposition to Supreme Court nominations.
3.Theorizing Bias in the Confirmation Hearings
In this chapter, we detail our theory for why women nominees and nominees of color face bias during their confirmation hearings. While explicit biases remain, bias against women and people of color often arises from subconscious biases and stereotypes. Gender and race sometimes function as cues, signaling to powerful, majority group members that those outside of their group are of a different (and lower) status. As a result, majority group members may view and evaluate members of their own group more positively, while negatively stereotyping women and people of color. This chapter builds on interdisciplinary work in this area by applying these theories to the context of Supreme Court confirmation hearings. It also discusses the ways shared party affiliation (between a nominee and a questioning senator) can serve an important conditioning role on the presence and level of bias against female nominees and nominees of color.
4.Professional Competence and Expertise
This chapter assess whether female nominees and nominees of color have to do more than their white, male counterparts to prove their professional competence and defend their impartiality in the face of subject matter stereotypes at their confirmation hearings. Our analyses provide strong evidence that female nominees face a presumption of professional incompetence: they receive more questions from male senators regarding the core judicial task of how to interpret the U.S. Constitution, and this effect is enhanced when the nominee does not share the partisan affiliation of the questioning senator. This chapter also reveals how stereotypes about subject matter strengths and concerns of group-favoritism once appointed to the Court affect senators' questions. We find that women and people of color nominees face more questions in areas of perceived strength and interests among their groups, including abortion and gender discrimination (female nominees) and racial discrimination and crime (nominees of color).
5.Interruptions
Interrupting another speaker is a type of social control that can both demonstrate and perpetuate inequality. By interrupting a nominee at their confirmation hearing, a senator can subtly make the nominee appear less than forthcoming and send a signal that the nominee is unfamiliar and of a lesser status than the questioning senator. Using an original database of interruptions, this chapter demonstrates that female nominees and nominees of color from the opposite party of the questioning senator are interrupted more frequently than any other type of nominee. Because these types of interruptions involve attempts to take over the conversational floor from nominees, they can portray the interrupted nominee in a negative way. This can reinforce undesirable stereotypes of women and people of color and may haunt even successful nominees in their future work.
6.Language Choices
This chapter explores the vocabulary of bias at Supreme Court confirmation hearings. It investigates the language used by senators in their questioning of nominees to determine if senators use less effusive language toward female nominees and nominees of color at confirmation hearings. This chapter reveals that senators use a harsher, more negative tone when questioning female nominees and nominees of color, and they tend to use more differentiation words that cast doubt on the testimony of female nominees and nominees of color. This is consistent with the empirical findings set out in previous chapters indicating that female nominees and nominees of color face a different confirmation process than do their white, male peers, especially in their interactions with opposing party senators when testifying before the Senate Judiciary Committee.
7.Gender, Race, and the Thomas-Hill and Kavanaugh-Blasey Ford Special Sessions
This chapter focuses on the special session confirmation hearings held to investigate the allegations of sexual misconduct against Clarence Thomas and Brett Kavanaugh. Using a first-of-its kind database of the dialogue that occurred during these special sessions, it explores the gender and racial dynamics of these hearings by investigating how the participants in these special sessions talked about sexual harassment and sexual assault, as well as the skepticism or respect with which the senators addressed both the nominees and their accusers. In addition, it examines the similarities and differences across the two hearings and offers insight into how societal changes likely contributed to the manner in which the Committee handled Christine Blasey Ford's accusations, compared to those of Anita Hill.
8.Reflecting and Looking Forward
This book demonstrates that race and gender biases have played a substantial role in Supreme Court confirmation hearings from 1939-2022. This concluding chapter investigates whether these types of biases are likely to occur at future hearings, in two ways. First, it examines the growing diversity of membership on the Senate Judiciary Committee and analyzes the questioning behavior of female senators and senators of color. It shows that these senators do not exhibit many of the same biases as their white, male counterparts. Second, it weighs the pros and cons of various reforms that could be taken to mitigate race and gender bias in this setting, including both institutional and individual changes in how the hearings are conducted. It concludes by reviewing the vast implications of a Supreme Court confirmation hearings process that inequitably plays out for nominees based on their race, ethnicity, and gender.