Women Judges: Accession at the State Court Level

WOMEN JUDGES: ACCESSION AT THE STATE COURT LEVEL

DISSERTATION

Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy

in the Graduate School of The Ohio State University

Margaret Susan Williams, B.A., M.A.

****

The Ohio State University 2004

Dissertation Committee:

Professor Lawrence Baum, Adviser Approved by

Professor Gregory Caldeira ______Professor Kira Sanbonmatsu Adviser

Department of Political Science

ABSTRACT

While political science has conducted research studying judicial elections, little of this work has focused on how actors move from the pool of potential candidates to becoming a candidate for the judiciary. Like the congressional literature, a clearly defined pool of candidates can provide the researcher insight into a selection process occurring prior to the election itself. This research analyzes the process of becoming a state judge, but beyond knowing the process this research will identify the determinants of women’s representation on the judiciary. I posit three types of explanations for the statistical under-representation of women as judges and for variation in women’s representation. I use two studies to test these explanations. The first study analyzes the factors associated with the proportion of a state’s judges who are female. I find that the pool of women eligible to serve as judges and state selection systems help to explain variation across the states. The second study uses data from surveys of lawyers and judges in Texas to systematically analyze perceptions and experiences of seeking judgeships in that state, and thus to probe the alternative explanations. The survey

analysis suggests that women’s representation on state courts can be explained by the characteristics they possess and the perceptions of the judiciary they hold. Not only do their characteristics affect their likelihood of attaining a seat on a state bench but they also affect a woman’s ambition for the judiciary. The overwhelming conclusion is that while women attain seats at the same rate as their male counterparts, all else being equal, their perceptions of the judiciary as well as the characteristics they more often possess decrease their likelihood of running for the judiciary.

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ACKNOWLEDGMENTS

As I sat down to write the acknowledgments that would go into my dissertation I thought this would be a relatively easy task. However, when I began to think about all of the people who helped me get to this point I was struck by the number. I would like to begin by thanking all the political scientists who read and commented on earlier versions of this project. In particular I would like to thank Richard Fox, Craig Emmert, Drew

Lanier, and Lewis Randolph for providing comments and guidance on this project. I would also like to thank the Ohio State University Department of Political Science for always giving me a place to work, no matter how many times I came back. The financial support of the department and university through PEGS grants and AGGRS grants made this project possible.

I can not say enough good things about my academic career at Ohio State. The faculty has been outstanding in my intellectual development and the support they have provided made Ohio State a second home. My classmates Justin Taylor, Sean Williams,

Andy Farrell, Andrew Holbrook, Ray Block, Greg Gwiasda, and Johnny Peel were essential to my success in the program, both as colleagues and as friends. In addition to

my classmates I would like to thank the other judicial politics graduate students I’ve gotten to know while at Ohio State, particularly Eileen Braman, Kevin Eirich, Mary

Outwater, Charlie Smith, and Corey Ditslear. Finally, I would like to thank all of the faculty and graduate students who attended the various research presentations I’ve given during my time at Ohio State, your comments and show of support helped a great deal.

In addition to the good people I’ve met at Ohio State I had the opportunity to work with some wonderful people at Texas Tech University. I would like to thank both the Political Science Department and the Women’s Studies Department for their assistance and guidance in my research and in my teaching. Particularly I would like to thank Frank Thames, Martin Edwards, and Brandon Prins for all their support and friendship as I tried to write a dissertation away from my home institution.

My research owes a particular debt to the faculty at Ohio State. Greg Caldeira always made sure I was being practical in my decisions regarding this research. Herb

Weisberg provided an unlimited amount of support on the survey. Paul Beck always made sure I had the opportunity to work on my project at Ohio State. Kira Sanbonmatsu provided an enormous amount of support and advice on the project, guiding me through the process of doing research on women in politics and setting an incredible example.

Finally, my advisor, Larry Baum can not be given enough credit for this project. It was his class that sparked the idea and his guidance that made the research possible. Every suggestion he gave made this project better, and his understanding and patience with my decision to finish this project away from Ohio State made a difficult task easier. I can not thank him enough for all he has done to support me.

My final thanks goes out to my family and friends for all their help and support while I continued to go to school. I want to thank my mom and brother for all their love and support, always giving me a place I could go to and relax. Jim Gorey and Shawn

Ebaugh, for lending an ear when I needed to talk, deserve thanks as well.

In addition to those listed above I would like to extend thanks to the women who have supported and influenced my life. My mom has shown me the strength and determination women could have. My undergraduate advisor Lauren Bowen provided support for me both as an undergraduate and as a graduate student, without whom I would not have made it through my academic career. My friends Jeannie Robinson,

Heather Philpott, Riann Taylor, Mandy Shannon, and Natalie Kistner, for providing support and understanding I just couldn’t get anywhere else, also deserve recognition.

Finally, this project would not have been possible without the love and support of my boyfriend Kevin Scott. Kevin has been an unlimited source of emotional support when my frustration with finishing this project made me want to quit. Kevin was especially important when I just needed to talk through an idea. I can’t thank him enough for all he has done for me.

VITA

April 7, 1977 ………………………………. Born, Akron, Ohio

1999 ……………………………………….. B.A., cum laude, Political Science, John Carroll University

2002 ……………………………………….. M.A., Political Science, The Ohio State University

1999-2002 …………………………………. Graduate Teaching and Research Associate, 2003 The Ohio State University

2002-2004 …………………………………. Visiting Instructor, Texas Tech University

2004-present ………………………………. Instructor, James Madison University

FIELDS OF STUDY

Major Field: Political Science

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TABLE OF CONTENTS

Page

Abstract …….…..………………………………………………………………………... ii

Acknowledgments ……………………………………………………………………… iv

Vita ……………………………………………………………………………………. vii

List of Tables …………………………………………………………………………… x

List of Figures …………………………………………………………………………. xii

Chapters:

1. Women’s Representation on State Courts …………………….………………… 1 1.1 The Story ……………………………………………….……………….. 1 1.2 Overview ………………………………………………………………… 3 1.3 Why Representation Matters …………………………………………….. 4 1.4 Theory …………………………………………………………………… 7 1.5 Chapter Layout …………………………….…………………………… 10

2. Theoretical Explanations for Women’s Representation on the Judiciary ……… 14 2.1 Ambition Literature ……………………………………………………. 16 2.2 Women Candidates …………………………………………………….. 19 2.3 Women in the Legal Profession ………………………………………... 23 2.4 Women Judges …………………………………………………………. 24 2.5 Judicial Office ………………………………………………………….. 27 2.6 Explaining Women’s Representation ………………………………….. 29 2.7 Conclusion ……………………………………………………………... 34

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Page

3. Formal Rules and Becoming a Judge ………………………………………….. 37 3.1 Design ………………………………………………………………….. 43 3.2 Hypotheses ……………………………………………………………... 44 3.3 Data …………………………………………………………………….. 45 3.4 Results ………………………………………………………………….. 47 3.5 Conclusion ……………………………………………………………... 57

4. Informal Requirement for the Texas Judiciary ………………………………… 69 4.1 Why study attorneys and judges ……………………………………….. 70 4.2 Why Texas ……………………………………………………………... 72 4.3 Sample ………………………………………………………………….. 77 4.4 Survey ………………………………………………………………….. 78 4.5 Response Rates ………………………………………………………… 80 4.6 Descriptive Results …………………………………………………….. 81 4.7 Multivariate Survey Analysis of Informal Requirements ……………… 86 4.8 Hypotheses for Survey Analysis ……………………………………….. 87 4.9 Results ………………………………………………………………….. 91 4.10 Implications …………………………………………………………….. 98

5. Ambition and the Judiciary …………………………………………………… 116 5.1 Factors Affecting Ambition …………………………………………... 119 5.2 Hypotheses ……………………………………………………………. 119 5.3 Data and Methods …………………………………………………….. 124 5.4 Descriptive Analysis ….………………………………………………. 125 5.5 Multivariate Analysis …………………………………………………. 128 5.6 Findings and Implications …………………………………………….. 136

6. Conclusion ……………………………………………………………………. 151 6.1 Implications …………………………………………………………… 159 6.2 Future Research ………………………………………………………. 168

Appendices

Appendix A – Coding of Variables for Chapter 3 …………………………… 169 Appendix B – Survey Instruments …….……………………………………… 172 Appendix C – Coding for Variables in Chapter 4 .……………………………. 181 Appendix D – Coding for Variables in Chapter 5 ……………………………. 184

Bibliography ………………………………………………………………………….. 192

LIST OF TABLES

Table Page

3.1 Representation of Women by State …………………………………………….. 60

3.2 EBB Model of Women’s Representation on State Courts, Collapsed Selection Categories (Logit Link) ………………………………………………………… 62

3.3 Discrete Change for EBB Model, Collapsed Selection Categories ……………. 63

3.4 EBB Model of Women’s Representation on State Courts, Full Selection Categories (Logit Link) ……..………………………………………………….. 64

3.5 Discrete Change for EBB Model, Full Selection Categories ………..…………. 65

4.1 Survey Responses for Judges by Gender ……………………………………... 103

4.2 Survey Reponses for Attorneys by Gender …………………………………… 108

4.3 Rare Events Logit Model Predicting Individual’s Likelihood of Being a Judge ……………...………………………………………………….. 113

4.4 Rare Events Logit Model with Interaction Terms ……………………………. 114

4.5 Predicted Probabilities Estimates from Rare Events Logit Model in Table 4.4 ...... 115

5.1 Bivariate Relationships Between Ambition and Demographic Characteristics ……………………………………………………………….... 142

Table Page

5.2 Bivariate Relationships Between Ambition and Professional Characteristics ………………………………………………………………… 143

5.3 Bivariate Relationships Between Ambition and Perceptions ………………… 144

5.4 Logistic Regression Model Predicting Ambition …………………………….. 145

5.5 Logistic Regression Model Predicting Ambition with Interaction Terms …… 147

5.6 Logistic Regression Model Predicting Ambition with Interaction Terms (Limited Model) ………………………………………………………………. 149

5.7 Predicted Probabilities of Gender and Ambition …………………………… 150

LIST OF FIGURES

Figure Page

3.1 Impact of the Pool on the Percentage of Female Judges, All Systems, Interim Gubernatorial Appointment (Limited Model) …………………………………. 66

3.2 Impact of the Pool on the Percentage of Female Judges, All Systems, Non- Southern States, Interim Gubernatorial Appointment (Full Model) ...…………. 67

3.3 Impact of the Pool on the Percentage of Female Judges, All Systems, Southern States, Interim Gubernatorial Appointment (Full Model) …………..…………. 68

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CHAPTER 1

WOMEN’S REPRESENTATION ON STATE COURTS

1.1 The Story

In the 2000 Ohio Supreme Court election, sitting judges Alice Robie Resnick and

Deborah Cook faced challenges from Terrance O’Donnell and Tim Black. To the surprise of almost no one in the state, both Resnick and Cook were successful in their bids retaining their seats on the court. While the victories could largely be attributed to the incumbent status of each female candidate, how they initially reached the bench is the more interesting question. More broadly, what characteristics determine an individual’s success in a bid for the judiciary is a somewhat understudied phenomenon in the field of judicial politics. Institutional effects, such as the process by which a state judiciary is filled, and individual-level characteristics, such as ideology, all have the potential to determine an individual’s likelihood of success. In looking at the composition of state judiciaries, it appears that no individual-level characteristic has a bigger effect than the gender of the person seeking a seat on the judiciary.

Women are increasingly part of the legal profession, which theoretically should lead to more women on state courts. The first year law school class in 2001 was, for the first time in history, made up of a majority of women. The movement toward a majority of women law students is a trend that has been developing since the 1970s, when women began to attend law school in greater numbers than previous years. Despite the increase in the number of women attending law school, the number of women serving on the judiciary has not seen the same rate of increase.

Certainly one reason for the small numbers of women on state courts is that many women in professional life are relatively young, combined with many states’ requirement that lawyers reach a minimum age or minimum number of years of practice to hold judgeships. Moreover, even as women enter the profession increasingly, they remain a small minority of all attorneys simply because the profession was once dominated by men. However, even with these considerations, women’s representation on state courts still lags behind what one would expect. Estimates in the mid-1980s suggested that by the 1990s women would hold 30% of seats on state judiciaries, but those levels of representation have yet to be met (American Judicature Society 1985). According to some studies, women hold only 20.6% of the federal judgeships (U.S. Courts 2001) and

9% of state judgeships (Carson 1994). If women are half of the population, why are they such a small percentage of all judges?

The question of why there are not more women judges is the heart of the research conducted here. In this research I examine what makes a person likely to become a judge and if the characteristics vary by the type of system for selecting judges. Moreover, with

this research I will determine if the process of becoming a judge differs for women and men. By understanding both accession to the judiciary and variation within accession, I will uncover why there are so few women on the bench despite the increasing presence of women in the legal profession. Additionally, I will determine the characteristics that make people more likely to be a judge.

1.2 Overview

This research is an attempt to determine the reason for the low numbers of women on state courts as well as what explains the variation in women’s representation across the United States. There are three possible explanations for the representation of women on state courts in the existing body of literature, explanations which also illuminate the variation in the representation of women. Formal rules to be a judge, such as a state’s selection system or a state’s years of practice requirement, may disproportionately exclude women from the judiciary, especially when considering that women are relatively new to the profession. Formal rules, such as selection systems, may also account for the variation in women’s representation on judiciaries by state. In addition to the formal rules that may affect women’s representation on state courts, informal requirements to be a judge may also exclude women. Individual-level characteristics, such as ideology, may prevent women from joining the judiciary. If, for example, voters would prefer conservatives to join the bench and women are more likely to be liberal, informal requirements are preventing women from joining the judiciary. These informal characteristics, such as voter preference for conservative judges, could potentially vary

by state. The final theoretical explanation for women’s representation on state courts is ambition. Perhaps it is the case that women do not desire to serve on the judiciary. If women are less likely to have judicial ambition, because of opportunity or the nature of state level races, then their representation on state courts can be explained in part by this lack of ambition. Obviously, these individual-level explanations would not be constant across states and thus could explain some variation in representation by state. Because the theories of representation of women are both at the individual and the aggregate levels, to test which theory (or theories) best explain representation and variation in representation, a research design that can include both levels of explanation is necessary.

Before discussing the design of the research it is important to see what past research has uncovered about representation and why representation matters.

1.3 Why representation matters

Research examining the representation of women in public office must inevitably address why it is important to understand the factors that affect women’s representation.

In other words, what impact, if any, do women have in public office? If there is no discernable impact for women on the outcomes of court cases or public policy, the factors that influence their representation are somewhat less important. Scholars address the impact of women in several areas of public office. Most studies conclude that the presence of women affects not only the outputs of government but also whether women’s issues are discussed at all (Davis, Haire, and Songer 1993; Kathlene 1994; Swers 1998).

Women provide different policy solutions to problems, such as crime, than their male

counterparts and are responsible for the sponsorship of legislation women find important.

The presence of women in public office has led to greater diversity in the backgrounds of judges, creating the potential for differing interpretations of legal issues (Martin and Pyle

2002).

Studies examining the impact of women on the judiciary have focused on comparing the decision-making of women and men, tending to test for differences in decision-making between groups. The theoretical assumption of difference stems from

Gilligan’s classic work on psychological differences between the sexes (1982). Such studies have mixed support for the idea of differences in decision-making between the sexes (Davis, Songer, and Haire 1993; Gruhl, Spohn, and Welch 1981; Kritzer 1977;

Martin 1993(a) 1993(b); Martin 1990; Massie, Johnson, and Gubala 2002; Songer and

Crews-Meyer 2000). There is a significant gender difference in sentencing, with female judges more likely than male judges to sentence women to jail terms. Area of law appears to affect whether or not women exhibit different decision-making than their male counterparts. Moreover, women judges appear to be less sympathetic to personal rights claims and more sympathetic to economic regulations than their male counterparts on the federal bench (Walker and Barrow 1985). In addition to some differences in the individual decision-making of women and men, other studies have noted greater voting cohesion among women judges on the same court for certain issue areas as well as a change in the courtroom mood and amount of gender bias on courts when women join the bench (Maule 2000/2001; Rhode 1994). Such findings lead some scholars to conclude

that for the judiciary to be fair and democratic, more women need to be present (Myra

1999; Solimine and Wheatley 1995)

The larger point to be taken from the literature on the impact of women on public policy is that it is difficult to conclude anything about women’s impact until there is a substantial number of women in public office. One can hardly generalize about the impact women have on policy when one is looking at the decision-making of ten women.

Thus, before scholars can begin to assess the impact of women on politics, we must first determine what would increase or decrease women’s representation in public office.

While it is necessary to study women’s representation in all areas of public office, the ability of an individual judge to shape public policy makes it all the more evident that a study of women’s representation on courts is necessary.

Aside from the potential impact women have on public policy, it is important to study women’s representation because of the larger implications for a democratic society.

Descriptive representation can be as important as substantive representation. If groups or classes of people are disproportionately excluded from representation in their government, their lack of representation will have an effect on their level of efficacy.

Women in public office, then, have an effect not only on the substance of policy but also on the extent to which women feel as if their government represents them. Moreover, not having women serving on a state bench is likely to have an effect on the number of female judges future generations will see. Without female judicial role models, young female attorneys are not likely to consider the judiciary as a viable career path.

Finally, this particular piece of research is important because it is the only individual-level study of women and the judiciary, including ambition. There are a number of other individual-level studies of women participating in other areas of public life and a few aggregate-level studies examining women’s representation on the judiciary, but no combination of the two. By combining methods of the judicial and non-judicial gender representation literature, not only can I consider the effects of how we choose to study representation, but I can also test multiple explanations at the same time. By taking what political science knows from women’s representation in other areas of public life, and applying that knowledge to a study of the judiciary, I can provide a different perspective to study women’s representation on state courts. Additionally, I can also determine if the models of women’s representation in other areas of public life, such as state legislatures, are applicable to state courts or if state courts are somehow different in terms of women’s representation. After determining how similar women’s representation on state judiciaries is to their representation in other areas of public life, I can discuss the implications of my findings for future research on women’s representation, especially with respect to state courts.

1.4 Theory

As stated, and as the political science literature reflects, there are three potential explanations for the appearance of a lower number of women on the judiciary relative to the number of women in the population, as well as the variation in women’s representation. The first explanation for the representation of women comes from the

formal rules to be a judge in each state, especially the small number of women lawyers.

For instance, if it is formally the case that one has to practice law for over five years, and women are a small number of lawyers practicing for five years, then there are fewer women who can be judges (Cook 1987). Given that generally one has to be a lawyer before one can be a judge, fewer women lawyers will translate into fewer women on the judiciary. Furthermore, research on the representation of women in other branches of government would suggest that the selection system in a state can advantage or disadvantage female candidates, further explaining women’s representation on state courts (Caul 2001; Darcy, Welch and Clark 1994). Systems that are appointive or multimember elections tend to favor women more than single-member district elections. The judicial literature, however, has not found a significant effect for selection systems

(Alozie 1996; Hurwitz and Lanier 2003, 2001).

The second explanation for the representation of women on the judiciary is that informal requirements to be a judge disproportionately exclude women from joining the judiciary. Past research looking at individual-level explanations for representation suggest that to be considered a viable candidate for a particular public office, a person may need to hold specific characteristics. Prior experience holding office is an obvious, and typically a rather important, informal requirement to hold other public office. Given the lower numbers of women in other areas of public office, it is possible that an informal requirement of prior political experience would disproportionately exclude women from such office. Similar expectations could be made based on other informal requirements to

hold office, such as a specific ideology or other characteristics that are likely to vary by individual.

A third explanation for the representation of women on the judiciary stems from differing levels of ambition for public office based on an individual’s gender. Perhaps women are less interested in becoming judges than men are. Studies examining ambition for state legislatures certainly suggest that there are meaningful differences in levels of ambition between the sexes, even after controlling for other characteristics (Carroll 1994;

Fox and Lawless 2004). The lack of interest may be from women lawyers themselves, or it may be a response to the barriers women lawyers face in trying to move up the legal career ladder. Whatever the cause of lower levels of ambition for public office, it is plausible that similar differences in ambition would in part explain women’s lower levels of representation on state courts as well.

The explanations used in this research are important for several reasons. First, the variety in the explanations enables me to determine if the individual level, the aggregate level, or both best explain representation. Past studies are consistent with the possibility that both explanations help us understand representation generally and the representation of women specifically. For instance, without the recruitment of women, an aggregate explanation, women are less likely to develop ambition, an individual-level explanation

(Carroll 1994). Without accounting for both levels of explanation one may conclude that ambition is the most important explanation for representation when, in fact, recruitment is playing a role as well.

The second reason the explanations used in this research are important is that the framework allows me to determine the impact of both formal rules and informal qualifications for the judiciary. Past research has argued that both kinds of qualifications can be influential in representation. Studies as early as Schlesinger (1966) have argued that while states have formal rules, such as qualifications for office, that influence the pool of eligible candidates, there are also informal career paths that can work to the disadvantage of some potential candidates. One of the best examples is the presence of a career ladder through which one achieves high-level positions (Bratton and Spill 2001).

Given that such a career ladder limits the pool of potential candidates for the federal judicial office, it would not be surprising if a career ladder existed for the state judiciary as well.

1.5 Chapter Layout

With three competing explanations it is possible that any one or any combination of explanations is the reason there are so few women on the judiciary. In addition to explaining representation, the appropriate theory or combination of theories will also account for the variation in representation across states. Because the possibility exists that there are multiple levels of explanation for an individual’s likelihood of becoming a judge, it is important to test the competing theories at more than one level. To accommodate the different levels of potential explanation there are two major parts of the research design: aggregate explanations and individual-level explanations.

Chapter 2 lays out the current understanding of the multiple literatures of political science relevant to this research. To understand the determinants of success in seeking a seat on the state judiciary, and whether women and men see different levels of success, it is important to understand past research on state judiciaries. In addition to the existing literature on state courts, this study draws from the research on the representation of women in public life as well as the literature on candidate emergence. The discussion in

Chapter 2 lays out our understanding in each of these areas of research and where the research conducted here fits into and broadens our understanding of these processes.

After gaining an understanding of where this research fits into the current state of political science literature, the analysis of the factors determining representation begins.

The first analysis is an aggregate look at the institutional level factors that influence the representation of women on state courts. The aggregate analysis looks at the variation in women’s representation in the pool of potential judges in the states, as well as considering women’s representation on state general jurisdiction and appellate courts.

After looking descriptively at the variation in representation, the research moves to a multivariate look at representation. The model in Chapter 3 is an extended beta binomial model predicting the representation of women on a state’s judiciary controlling for the pool of women eligible to be judges, the selection system used to fill the state judiciary, and region of the country.

After determining the institutional level factors that influence the representation of women on state courts, the research moves to an individual-level look at the determinants of women’s representation. To understand the individual-level factors

affecting representation on state courts, a survey of a sample of attorneys and judges in the state of Texas was conducted. Chapter 4 describes the construction and sampling of the survey as well as discussing the questions asked of respondents. In addition to the construction of the survey, Chapter 4 examines the informal requirements to be a judge by predicting what characteristics make a person more likely to move from the pool of attorneys to the judiciary, using a rare events logit model. Most importantly, the analysis in Chapter 4 breaks down the effects of the informal requirements to be a judge by gender.

After analyzing the informal requirements to be a judge, the final component of this research examines differences in levels of ambition among the pool of potential judges, attorneys in the state. Chapter 5 includes a model examining the likelihood that an attorney expressed ambition for the judiciary given a series of individual-level characteristics. In addition to demographic characteristics, the model includes a series of professional characteristics and perceptions of the judiciary to determine if perhaps they too affect an individual’s ambition for the judiciary. Moreover, the model in Chapter 5 explores the potential for the characteristics affecting ambition to differ by gender.

The final chapter discusses what the overall findings of this research are and what new directions in research are prompted by the results here. Given the results in the previous chapters, I suggest that women’s representation on the judiciary is affected by both the formal rules and informal requirements to be a judge, but ambition does not explain the lower numbers of women on state general jurisdiction and appellate courts.

The findings of this research suggest that there is a clear effect for the selection system,

the pool of potential candidates, and informal requirements to be a judge. Ambition, however, should increase women’s representation on the judiciary. Women are more likely to express ambition for the judiciary than men, even after controlling for other individual, professional, and perceptual factors. The findings thus suggest that the extant research on gender and ambition may not be applicable to our understanding of women’s representation on state courts. The findings suggest that unlike state legislatures, women’s ambition for office is not what prevents them from joining public life. Instead, what keeps women off state benches are formal rules and informal requirements to be a judge in each state.

CHAPTER 2

THEORETICAL EXPLANATIONS FOR WOMEN’S REPRESENTATION ON THE JUDICIARY

As one considers the existing literature on women’s participation in public life, as well as literature on state courts generally, it is important to keep in mind the central question framing this research, which asks what explains women’s representation on state courts. Are the low numbers of women a function of an aggregate explanation like the pool of women eligible to be a judge or are they a function of an individual explanation such as the lack of ambition among women lawyers? Three potential explanations are posited: formal rules affect representation, informal requirements affect representation, and ambition affects representation. To understand the basis for these three explanations, it is important to consider the relevant literature on participation in public life, especially with respect to women and the judiciary.

According to Joseph Schlesinger (1966), having the interest in running for office is only possible if there is the opportunity to run. Therefore, those who are presented with the option to run for an office are likely to develop an interest in that office and seek the office as a result. Recruitment by the party is then a key component in considering a

14 political or judicial position, whether in elective or appointive systems, and could make a difference in the number of women judges. Carroll (1994) echoes the work of

Schlesinger (1966) by arguing that women are less present in political office, generally, because they are less politically ambitious. The lack of political ambition for women has two sources. Like Schlesinger (1966), Carroll (1994) argues that women are less politically ambitious because they have fewer opportunities to be involved in politics, as parties do not recruit women to seek office. Without recruitment, women, even women lawyers, would not consider being a judge as a career prospect. Carroll’s second explanation for the lack of ambition among women in politics, not unrelated to the first, is the different societal expectations about the role of women. According to Carroll, women must go against their socialization and the expectations of society (and sometimes potential voters) to attain political office. Because women have to thwart these conventions, they are less likely to run.

As stated earlier, the answer to why women appear so under-represented in the judiciary comes from two potential sources, individual explanations and aggregate explanations. The individual explanation comes from the perspective of the women in the pool of eligible candidates, women lawyers. Their perceptions and experiences with the parties will provide individual level answers to why there are so few women on the judiciary. Questions can be asked if the party is actively recruiting women to run in elections, or if they are being considered for appointment. This type of research could also consider whether women even have ambition to run for judicial office. Research in the past has asked the same questions of women legislative candidates (see for example,

15 Carroll 1985; Costantini 1990; Fox, Lawless, and Feeley 2001; Fox and Lawless 2004;

Sapiro 1982). Understanding the perceptions and experiences of women lawyers is only one part of the story. The other part of the answer to why there appears to be so few women judges must come from looking at the institutional barriers to women who would like to seek judicial office. If there is no opportunity, women lawyers will not develop the ambition to run for or seek an appointment to judicial office. In order to better understand the possible barriers to seeking judicial office a general review of the literature on candidates and paths to political office is first necessary.

There are five important literatures which examine the experiences of candidates and their paths to political office: the ambition literature, the women candidate literature, the literature on women in the legal profession, the literature on women judges, and the general literature on judicial office. There is no work attempting to integrate all of the literatures, but there are some similarities among them. Looking at the ambition literature and progressing to the literature on judicial elections shows how a research agenda attempting to explain women’s representation in the judiciary fits into the work done up to this point and invites a greater understanding of both gender and the courts in

American politics.

2.1 Ambition Literature

The literature on ambition in politics, beginning with Schlesinger (1966), looks at the characteristics of candidates and political systems to explain why some people choose to run for political office generally, and why some choose to run for higher political

16 office. The ambition literature focuses on four main themes: eligibility, visibility, opportunity, and probability. Eligibility is meeting the formal and informal characteristics to run for an elected position. Formal rules to run for office are laid out in statutes or constitutions at the state or federal levels and tend to include requirements such as age, citizenship, or legal education. The formal rules are the first hurdle a potential candidate must pass before considering a run for office. Additionally, Putnam

(1976) argued that some elected offices have informal qualifications that require a candidate to hold a lower level office before she can run for a higher office. While the requirements are informal, they are nonetheless necessary to be able to run for the higher office. Meeting the formal and informal requirements to run for office, as Putnam says, only makes the person eligible to run for an office. The candidate must still be chosen by the party to run for an office in an elected system.

Being chosen by the party is a function of the visibility of the candidate. Part of being visible for recruitment by the party is being a member of the pool of eligible candidates. Several researchers have used members of a lower legislative body as the possible pool of candidates for the upper chamber. For example, some researchers have considered the candidates eligible to run for a statewide office such as Senator or

Governor to be members of the House of Representatives (Copeland 1989; Hibbing 1986;

Rohde 1979). Similarly, potential candidates for the House of Representatives include those in state legislatures (Kazee 1994; Maisel, Stone, and Maestas 1997). Being in the pool of potential candidates makes a person more likely to win a higher office than those who do not have prior elective experience. The candidate shows elites that she has the

17 ability to campaign effectively and raise money to win a race. Furthermore, the candidate has name recognition, which can help win the election. The decision to run for this higher office, of course, is conditional on there being a seat available for which a person can run, or the opportunity to achieve a higher office.

Most research on ambition defines opportunity as an open seat race or a race where the incumbent is of the opposite party (Black 1972; Copeland 1989; Hibbing 1986;

Mezey 1970; Putnam 1976; Rohde 1979). Schlesinger (1966) argued that without the opportunity a candidate would not develop the ambition to run for a higher office.

Opportunity essentially gets at the characteristics of an elective system-- characteristics such as turnover, incumbency, and party competition. The structure of the system determines the types of candidates one finds in an elective race. The candidate estimates her probability of winning an election partially from the structure of the system.

The decision to run for office, including higher office, is based on the costs of running, the benefits, and the probability of winning the office. Researchers have found that a primary consideration candidates include in their decision is the assessment of risk: the competition for the higher office both within the party and between parties, the desire for the higher office, the political situation they face in their current office, the outcome of their prior election, the type of office, the length of term, the size of the state, the financial cost of running, and personal considerations such as family and age (Black

1972; Copeland 1989; Hibbing 1986; Maisel, Stone, and Maestas 1997; Mezey 1970;

Putnam 1976; Rohde 1979).

18 The four points of emphasis of the ambition literature are highly interrelated.

Each presents a hurdle a potential candidate must pass in order for the candidate to run for office. Generally, the candidate emergence and ambition literatures suggest that people are successful in their attempts for a political position if they have the desire to run for an office and, more importantly, the opportunity to seek that office. Scholars have tended to study Congress, although some other types of elective office have also been examined. Unlike the legislative literature, the judicial literature has not seen the same examination of ambition (for exception see Ditslear and Scott 1999). Of those scholars looking at ambition in legislative elections, some have been interested in knowing the pool of eligible candidates for an office. A candidate for elected office calculates the likelihood of success based on the support of her party, her ability to raise money, and her competition. From this calculation a potential candidate decides to run for office or not. The same types of calculations are made regardless of the office for which the person is running or prior experience running for office. Because most of the past literature has tended to focus on male candidates, it is worth exploring how gender affects the candidate’s calculation of winning and the subsequent decision to run.

2.2 Women Candidates

The literature on women in elected office relies heavily on the foundation of the ambition literature. The literature on female candidates tends to focus on two of the main aspects of the ambition literature: opportunity and probability. It is in these two aspects of ambition that women have different experiences from men when running for office.

19 Originally, the researchers studying the ambition of women argued that based on survey responses women were less ambitious than men (Costantini 1990). Later studies in response to the findings of past research argue that women are as ambitious as men. The difference between women and men in elected office lies in the opportunities they both have to run for office and the barriers they face in their attempts to run for office.

Women also have different considerations in their decisions to run for office. Women weigh more heavily their family responsibilities and are more concerned with their qualifications to run for office, but they are just as ambitious as their male counterparts

(Bledsoe and Herring 1990; Carroll 1985; Moncrief, Squire, and Jewell 2001; Niven

1998; Palmer and Simon 2001; Sapiro 1982). Women are as able to raise money post nomination and enjoy the activities of campaigning as much as male candidates (Burrell

1996; Darcy, Welch and Clark 1994).

What is different about women is they are not as often a member of the pool of eligible candidates, or they do not have the prior political experience that provides them with the informal qualifications to run for office (Buchanan 1978). Thus, women are less likely to be considered by elites when an opportunity to run for office arises.

Furthermore, women, although they have the opportunity to run, are less successful in races against incumbents, who tend to be males (Burrell 1996). Though scholars argue that when women run, women win (Burrell 1996; Darcy, Welch, and Clark 1994), the result is only true after controlling for incumbency. Women will not face equal opportunities to run for office until they reach the same levels of incumbency to do so.

20 A second consideration of female candidates is their probability of winning.

Some scholars would argue that female candidates have the decks stacked against them, both by the voters and the election systems some women face. Female candidates are more successful in multimember districts than in single-member districts (Welch and

Studlar 1990), but most districts are single-member. Women candidates are also more successful in districts that have higher levels of education (Welch and Karnig 1979). The success of some female candidates is, therefore, contingent on where they decide to run for office. The kinds of voters a female candidate faces may also affect her ability to attain office (Huddy and Terkildson 1993; Kahn 1994; Leeper 1991; Matland 1994).

Some voters have different perceptions of female candidates based on stereotypes about women, and the misperceptions can affect the voter’s choice (Koch 2000; Koch 2002;

McDermott 1998). A woman who would otherwise consider running for office may choose not to do so for fear of voter bias against her, making her likelihood of winning too low to outweigh the costs of running. Thus, even women who get the opportunity to run may decide their probability of winning does not make it worth the effort to run.

It is certainly not the case that all women who hold office are elected to such an office. A relatively large number of women are appointed to office, especially executive level office. Studies of women’s representation in other offices suggest that women’s representation in other areas of life may be a function of the selection system used to fill the judiciary. Executive level office, for example, is filled by a variety of selection systems including election and appointment. Those who have studied women’s representation in executive office at the state level concluded that the representation of

21 women in these offices is affected by the supply of candidates, the recruitment of candidates, the number of women candidates in previous elections, and characteristics of an office (Oxley and Fox 2004). Studies focusing on women’s representation in the executive branch found that women’s representation among positions appointed by the president depends on factors such as the number of appointments an administration has, as well as the number of women in the pool of eligible appointees, especially within the

Washington D.C. community (Martin 1997).

Much like the candidate emergence and ambition literatures, the literature on women candidates suggests that the structural barriers women face tend to keep them out of office. Put differently, without the opportunity to run for office women will not develop the ambition to do so. There seems to be a general bias against some candidates by voters and elites, particularly bias against women candidates, preventing them from attaining office; a bias not found in the ambition literature. Therefore, it is not only structural barriers that prevent women from being ambitious, but also perceptual barriers.

The perceptual barriers can be imposed by voters, by those with the resources to fund campaigns, or by those in the party recruiting candidates who think women are not viable candidates worthy of their support. The perceptual barriers women face are not unique to political office but are something professional women face generally, including those women in the legal profession.

22 2.3 Women in the Legal Profession

Some scholars argue that the presence of a few women on state supreme courts and high profile women lawyers cloud the reality of the status of women in the legal profession (Costello 1997). Studies of women in the legal profession generally argue that the women are under-represented in top legal jobs such as partner in a prestigious law firm or tenured law school faculty (Costello 1997; Epstein 2001; Jones 1999). While the obvious discrimination against women in the legal profession has all but disappeared, there are less obvious forms of discrimination against women, such as the emphasis on billable hours as a measure of productivity. The emphasis on billable hours translates into women not being promoted to partner at the same rates as their male counterparts despite being hired into big law firms at the same rate as men. Women also earn far less than their male counterparts even when they have the same amount of legal experience.

The disparity between women and men in the legal profession may be the result of differing societal expectations for women and men or they may be due to bias against women by those who currently hold top legal jobs. In either case, the success women see in law school, where they are a majority of the top 15 percent of a graduating class, does not necessarily translate into a successful career in the law.

Despite women’s increasing attendance and success in law school, women are not rising to the most powerful positions within firms or on law school faculty. The barriers these professional women face are similar to those that women face as political candidates. Barriers are argued to be both structural and perceptual. Practicing law privately and teaching law, however, are only two elements of the legal profession.

23 Other scholars have examined the legal profession more broadly to determine women’s status within it. Included in this research is what we know about women’s representation and status in the judiciary.

2.4 Women Judges

Cook (1987) argues that an increase in the number of women on the courts will only occur if three conditions are met: an increase in the number of judicial positions, an increase in the number of women eligible for judgeships, and an increase in the number of gatekeepers (be they party elites or judges) favorable to women in judicial office.

These three conditions are part of what Cook calls the opportunity structure, which she defines as “the set of linked positions that provide incumbents the opportunity to prove their eligibility for higher office” (Cook 144). Meeting the three conditions would allow women to take lower level positions without seeming like intruders and then work their way up to the higher level judicial positions. As a result, there would be an increase in the number of women at both the lower levels of the judiciary and eventually higher court positions.

Williams (1990), who examines the representation of women in legal and political professions, is skeptical. She argues that increasing the eligible pool of women will have a slow impact on the composition of the legal and political professions, especially political. She finds that the composition of the legal profession and the number of women in politics vary greatly by state. The variation is due to state-by-state changes in the composition of law school classes. As state laws permitted women to attend law

24 school there was a growth in the number of female lawyers within that state. Because not all states allowed women to attend law school at the same time or with the same enthusiasm, states saw different rates of growth. Thus, there may be state level factors, such as state culture, that could be affecting the representation of women in public office.

Williams (1990) concludes that, in addition to the pool of women eligible to be a judge, the type of selection system, professionalization of the office, and level of office make a difference for the number of women in the political office.

Alozie (1996) researched the impact of selection systems on the gender composition of state courts of last resort. He hypothesized that the size of court, the type of selection systems, a window of opportunity, and other factors would influence the gender composition of courts. Alozie developed two ways to examine composition of courts, both a dichotomous model of whether or not there were women on the court and a model explaining the percentage of seats held by women. He found that the selection system was not influential in determining the success of women. The size of the court was influential in whether or not a woman served on the state court of last resort. The representation of other minorities and region were associated with the percentage of seats women held.

Hurwitz and Lanier (2001), on the other hand, find that the type of selection system may not help in the diversification of the bench. In their examination of the presence of women and minorities on state and federal benches, they argue that political minorities like women may face different obstacles to attaining judicial office, and such barriers may impede diversifying the bench. Thus, they look at diversity statistics for all

25 courts of last resort and intermediate appellate courts for all 50 states and all federal courts of appeals in the years 1985 and 1999. They tried to discern if there was a pattern in the representation of women and African-Americans on the court across time and selection system. They find that although there has been an increase over time in the representation of both groups, the majority of appellate judges are still white males.

While women are better represented than African-Americans, this may be due to a larger pool of applicants from which to choose. They argue that further scholarship is necessary in order to understand better the representation of political minorities on the appellate benches.

In an update of Alozie (1996) and Alozie (1992), Hurwitz and Lanier (2003) examine aggregate level explanations for the representation of women and minorities on state appellate courts. Included in the aggregate level explanations explored is the selection system used to fill the court, the pool of potential candidates, and the number of seats on the court. Consistent with past studies, the results suggest that size of court and the pool of potential candidates affect the representation of women and minorities on state appellate courts. Contrary to expectation, however, the system used to fill the judiciary does not affect the representation of either minority group on state appellate courts.

Martin and Pyle (2002) conduct a more recent study of the diversification of state supreme courts. The authors argue that the greater racial and gender diversification of state supreme courts leads to greater diversity in the background characteristics of those who serve on the courts. The study compares the white men currently on state supreme

26 courts with African-Americans and women now on the courts, as well as to the judges who sat on state high courts in 1980-81. The study shows that the current state supreme court judges differ from the judges of the early 1980s in terms of age, ties to the state, prior legislative experience, and prior experience in government. Further, they reach the bench more often by merit selection.

The literature on women in the judiciary has shown two related explanations for the representation of women on the judiciary. Some scholars argue women face barriers to attaining judicial position, both structural (the type of selection system within a state) and perceptual (the willingness of some people with power to recruit women to seek judicial office). While women face the same barriers in judicial office that they face in legislative office, judicial offices are unique in some respects. Therefore, to truly understand why there are so few women in judicial office, a general sense of the process and qualifications are necessary to attain judicial office across selection systems are first necessary.

2.5 Judicial Office

There are five main types of judicial selection systems in the United States (not counting those that are a combination of systems): merit-based systems, gubernatorial appointment systems, legislative electoral systems, partisan electoral systems and nonpartisan electoral systems. Federal court judges are all appointed while state court judges reach the bench in a variety of ways, both within and across states. Most states elect judges, either in partisan or nonpartisan elections. The requirements to be a judge

27 vary by state and there is some disagreement over whether the selection systems can influence who is able to attain a judicial position (see for example, Alozie 1996; Canon

1972; Glick and Emmert 1987; Slotnick 1984). Some scholars argue women should be more represented in appointive and merit based systems than in elective systems, although no study has found such an effect. Women’s increased representation on merit and appointive benches would be due to the willingness of those who appoint in these systems, namely governors, sometimes in consultation with a selection committee. These governors and selection committees generally find it politically beneficial to appoint women judges to such positions.

The studies mentioned above attempt to understand how the selection system influences the characteristics of the people on courts, or who can attain a judicial position. The literature in this area, however, has left out interesting and potentially consequential elements to the selection process. What research in this area has not done is systematically consider what the pool of eligible candidates is and how this affects who ends up on the courts (for exception, see Alozie 1996; Hurwitz and Lanier 2003).

Furthermore, the literature is generally considering one type of court, appellate courts, and how people succeed in reaching these positions. It is worth noting that most judges do not reach state supreme courts without first serving on lower state benches.

With the increasing prestige and broadening power for state courts, lower level judicial experience is seen as a necessary qualification to attain high judicial office.

Increasingly, those who want to be on state courts of last resort must gain experience on the lower state courts. Therefore, there is a need for a coherent theory of state court

28 judges, who they are likely to be, how they attain judicial positions, and how they move up a state court hierarchy.

2.6 Explaining Women’s Representation

As stated, and as the political science literature reflects, there are three potential explanations for the representation of women on the judiciary relative to the number of women in the population. Studies of attainment of judicial office as well as those considering women’s representation in public life point to a number of formal rules that can affect representation of any group in public life. Fortunately, the formal rules to be a judge in any state are listed in the state constitution, providing the beginnings of a list of potential formal rules that can affect women’s representation on state courts. In addition to qualifications like years of practice, the most common formal rule to be on a state bench, other formal rules may have an effect on women’s representation. The literature on attainment of seats on state courts is mixed with respect to whether or not selection systems affect women’s representation. Because the results are mixed it is important to include such controls and avoid the potential for omitted variable bias. Finally it is important to control for region of the country. Studies of state legislatures show that women are represented in public life in lower numbers in the South, and it is plausible that the same would be true of women’s representation on state courts. To determine the impact of region, a control for Southern states is included in the analysis.

29 The examination of women’s representation on state courts at the aggregate levels provides several benefits to our understanding of women’s representation on state courts.

First, it tests the assumption that formal rules affect women’s participation on state judiciaries. If the low number of women on state courts can be explained by stringent state years of practice requirements, then women’s participation on state courts will increase over time, as suggested by past studies such as Cook (1987). An important aspect of considering women’s representation on state courts is including state general jurisdiction courts in the analysis, which can yield a more accurate determination of whether women are also unable to attain these lower level seats, given the formal rules to be a judge at this lower level.

Secondly, the aggregate level analysis allows me to consider variation in representation of women across the country. It is possible that some states, either because of state culture or because of formal rules, are more or less open to women’s participation on state courts. By looking across the country I can better understand the conditions under which women’s representation on state courts is at its highest. Perhaps, as states want to increase women’s representation on state courts, they can consider what other states have done to successfully increase women’s representation.

It is this variation by state that leads to the third reason the aggregate level research is important. The aggregate picture of women’s representation on state judiciaries will allow me to determine the best states to examine individual level explanations for women’s participation on state courts. If a state appears to have an unusual number of women, more or less than expected given the state level conditions, I

30 can follow up the aggregate analysis with an individual level look at what, beyond formal rules, explains women’s representation on state courts.

By choosing a state to examine women’s representation more fully, I can explore the second theoretical explanation of women’s representation on state courts, informal requirements. Unlike formal rules, informal requirements for the judiciary are neither constant across states nor listed specifically in a state’s constitution. In order to determine the effects of informal requirements for the judiciary, I conducted a survey of attorneys and judges in the state of Texas. The survey allows me not only to determine what individual level factors not listed in the state’s constitution affect a person’s likelihood of becoming a judge, but it also allows me to determine the variation in these characteristics across states in future research. Included in the informal requirements are the effects of prior political experience, ties to a community, and demographic characteristics like ideology, party, gender, race, and family. Such an examination will build upon past studies which have examined the effects of similar characteristics on the emergence of candidates, suggesting that there may be more to representation than can be explained by formal rules to hold office (see, for example, Fox and Lawless 2004;

Maisel, Stone, and Maestas 1997).

The informal requirements analysis is important for a number of reasons. First, the analysis allows me to more accurately describe the pool of potential candidates for the judiciary. By considering informal requirements and the variation in such characteristics across the pool of people meeting the formal rules to be a judge, I can narrow down the number of people who have a viable chance to become a judge. By knowing all the

31 potential characteristics that help or hinder an attorney’s chances of becoming a judge, I can better understand representation, specifically women’s representation.

It is the ability to focus on women’s representation specifically that further justifies the informal requirements focus. If gender, for example, is still an important criterion for becoming a judge, even after controlling for formal rules and informal factors, a more complete analysis of women in public life within the state would be necessary. It may be necessary to determine if interactions of gender and the informal requirements important in becoming a judge are really driving the appearance of a gender difference in being a judge. Alternatively, to have a significant coefficient on gender, while interesting in and of itself, means that more analysis, including considering the effects of ambition on participation in public life, is necessary to completely understand women’s representation on state courts. Not only is it possible that the nature of the races within the state is affecting representation, but there could be an additional effect for the nature of races on a person’s ambition for office.

Thus, the informal requirements analysis sets up a test of the final theoretical explanation of women’s representation on state courts, which could be differing levels of ambition among female and male attorneys to hold judicial office. Using the same survey responses studied in Chapter 4, the research conducted here is able to explore variation in ambition among those in the pool of potential judges. By exploring descriptive characteristics, professional characteristics, and perceptions of the judiciary in

Texas, the research here can explore if those who desire to be on the bench differ from those who do not. Perhaps female attorneys in the state see the career path as less viable

32 because they do not see those on the judiciary, or the parties recruiting candidates, as interested in increasing women’s representation on state general jurisdiction and appellate courts. In addition to perceptual barriers to participation, it is possible that professional characteristics may increase or decrease an individual’s ambition for the judiciary. It is possible that some types of practice or firms serve as a pipeline to the judiciary, and those who serve in those areas of the profession are more likely to consider running for the judiciary; perhaps it is a natural progression of their career. The final factors potentially affecting ambition for public office include demographic characteristics. It is possible that those with young children may not consider running for the judiciary because of the demands campaigning in a big state like Texas places on their time, or maybe women are simply less ambitious to participate in public life, generally speaking. It is also possible that identification with a major party is an important factor affecting ambition because of the role parties play in the recruitment of candidates in the state of Texas.

The analysis of ambition allows me to consider a stage of running for judicial office many past studies of the judiciary have not considered, the decision to run. Past studies of women’s representation suggest that the low number of women in other areas of public life, like a state legislature, is due to their lack of ambition for office and not institutional barriers to their participation. The aphorism most commonly touted by the gender literature is when women run they win (see, for example, Burrell 1994). Women deciding not to run for office can explain the low number of women in other areas of public life. The analysis of ambition for the judiciary allows me to consider if this is also true of women’s representation on state courts.

33 In addition to the comparison between ambition for the judiciary and ambition to participate in other areas of public life, the analysis included here shows me the characteristics affecting ambition. If people are more willing to run for the judiciary as they get older or once they have grown children, then we can expect women not only to have more ambition for the judiciary, but also to be represented in greater number as the relatively young group of female lawyers in a state gets older. Not only can I consider demographic characteristics, for instance age, with this analysis, but also perceptual barriers and professional characteristics.

2.7 Conclusion

Overall, there are a number of reasons the research conducted here is important to understanding women’s representation on the judiciary. It is important to consider all of these potential explanations to determine which one (or ones) serve as an explanation for the representation of women on state courts. It is possible that each chapter of analysis would lead to differing conclusions about what affects women’s representation.

Women’s representation on state courts could be affected by both institutional level factors as well as individual level factors. For example, finding that women are represented in lower numbers in partisan electoral systems allows me to consider the effect of this aggregate level explanation on individual level decisions to run for judicial office, or even if women in that state desire to run for such office. By turning to individual level analysis, a better understanding can be reached regarding what the effects of formal rules are on women’s representation and why there is an effect at all.

34 Moreover, to say that the pool affects women’s representation does not fully explore the definition of the pool, nor does it explain the factors affecting the pool of potential candidates. The analysis conducted here allows for a more complete explanation of both.

Conducting separate analyses to explore the potential effects each explanation of women’s representation has on state courts is a rather unusual way to understand a phenomenon. However, there are several reasons this research design is necessary, as well as informative. Ideally, the research design would always control for both aggregate and individual level explanations at the same time. However, the amount of variation for individual level explanations would make such a design rather difficult to enact. Judicial qualifications vary substantially by state, and the effect they have on individual level ambition would also need to be taken into account. Instead of conducting a rather expensive national survey, a smaller scale study is first necessary so that any larger scale project would be fruitful. It is possible that smaller studies, like the one conducted here, can be informative if the states chosen are representative of other states. The movement from the aggregate analysis to the individual analysis allows me to hold constant institutional factors, like selection, that can affect representation. Moreover, the individual level analysis serves as a preliminary step in understanding what personal characteristics, like ambition, can affect representation.

Attributing women’s representation to any one explanation does not mean that the research need go no further. For example it would not be appropriate for me to stop exploring reasons for women’s representation on state courts simply by uncovering the impact of the pool of potential candidates on the number of women on state courts. Only

35 by considering all three explanations can I truly begin to understand what affects women’s representation on state general jurisdiction and appellate courts. Thus, it is necessary to begin uncovering the factors affecting women’s representation on state courts by looking at the effects of formal rules to be a judge.

CHAPTER 3

FORMAL RULES AND BECOMING A JUDGE

The literature on representation suggests that a number of factors could determine who becomes a judge, and more specifically, what affects women’s representation in this area of public life. The most obvious place to begin looking at representation is by considering the formal rules to be a judge and the effect these rules have on women’s representation. Because formal rules are relatively easy to define and they are somewhat of a constant across states, an aggregate look at these rules and the effect they have on representation is most appropriate.

Other research examining the effects of formal rules on representation tend to consider the institutional effects of the electoral process on the ability of specific groups to attain seats in public office. Past studies have suggested that the type of election in which a candidate participates, especially a female candidate, can affect her chances of winning. Women often perform worse in elections governed by single member districts instead of multi-member districts and in winner-take-all systems versus systems of

37 proportional representation (see for example Alozie 1996). While these studies may be few in number, they do conclude similar results: the rules affect women’s representation.

Aside from the formal rules of the electoral system affecting women’s representation in public life, there are other formal rules affecting women’s representation. The pool of potential candidates for office can also affect women’s representation in public life. If women do not share the characteristics of those in the pool of potential candidates, or if the rules defining potential candidates disproportionately exclude women, women are likely to be under-represented in public life. For example, most researchers define those in state legislatures to be a substantial part of the pool of potential candidates for congressional office, as potential candidates gain experience and resources in lower legislatures they become a viable campaign for

Congress. Part of women’s representation in Congress can then be explained by the low numbers of women in state legislatures. While it is informal requirements affecting women’s representation in this area of research, the same argument can be extended to the formal rules for office as well. Age requirements (or practice requirements) can affect women’s representation in public life in the same way that informal prior experience has been shown to affect representation. Such rules, like those informally affecting representation, serve to limit the pool of women eligible to be a judge. As the number of women in the pool shrinks, the possibility of these women reaching the bench diminishes.

Most of the research on such institutional effects tends to consider the representation of political minorities like women for some kind of legislative office.

38 There are, however, a few studies extending the work examining institutional effects on representation to the court. Some studies have argued that there is no effect for institutional rules on the chances of minority candidates like women gaining a seat in public office (see for example Hurwitz and Lanier 2001; 2003). Other studies argue that the method of judicial selection can have an effect on women’s representation (Slotnick

1984). Women are represented more in offices filled by appointment and less so in offices filled by popular election, either partisan or nonpartisan, and the number of women on the federal bench relative to state courts would certainly suggest appointment is a method favorable to increasing women’s representation.

Most of these studies of representation on the judiciary have found limited support for the effect the pool of potential candidates has on minority representation

(Alozie 1996; Alozie 1988; Hurwitz and Lanier 2001; 2003). Perhaps the most interesting aspect about the pool of candidates for judicial office is that the rules are clearly defined. To run for or be appointed as judge in most states a person must be licensed to practice law in the state, and some states include a years-of-practice or age requirement (some have both). The effect of these rules on the eligible pool of women for state judicial office should be quite clear. While women are now exceeding men in law school attendance, they are still a minority of attorneys meeting state practice or age requirements to be a judge. Thus, while part of the low number of women on the courts appears to be explained by the limitations on the pool of potential candidates, there is only limited support in the literature for such a hypothesis. This limited support makes two suggestions. First, there may be more to women’s representation than formal rules, a

39 subject left to future chapters. Secondly, the research examining the impact of the pool of candidates may be flawed.

While these studies begin to uncover what affects representation, they are limited by two kinds of problems. The first problem of some of the past research is a methodological problem, making the findings of such research somewhat suspect.

Suspicion of such research is not due to the low number of women participating, but instead because of the statistical analysis used at the time. The use of ordinary least squares to model the factors affecting women’s representation on state courts runs into problems of heteroscedasticity. While a researcher can use standard corrections to try and overcome such problems, a retest for the problem will likely show that heterscedasticity persists. The reason for the persistent non-uniform variance in the errors is that ordinary least squares is the wrong function form for the data. The representation of women on state courts creates an issue of grouped data; errors made in predicting one seat going to a woman are likely to affect all other predictions for that state. The correlation in the errors is part of the functional form of the data, and only a statistical technique designed to deal with the problems of grouped data can overcome the problem.

The second problem of past research is that it tends to consider the representation of political minorities only on state appellate courts. Thus, even studies using advanced statistical techniques (see for example, Hurwitz and Lanier 2003) only tell a small portion of the story of women’s representation on state courts. By considering representation solely on appellate courts, such models under-estimate women’s representation on state

40 courts, only determining the factors affecting women’s representation on appellate courts.

By excluding state trial courts of general jurisdiction from the analysis, such studies provide a limited picture of the factors affecting representation on state courts. Many judges who serve on state appellate courts begin on state trial courts of general jurisdiction, working their way up the judicial career ladder in the state. Analysis of the appellate courts excludes an interesting group of women from study and, if the women who reach appellate courts differ from those on state trial courts of general jurisdiction, the exclusion could potentially bias the results.

The research conducted here attempts to overcome both of the problems of prior research. By examining women’s representation on state general jurisdiction and appellate courts, my research can more fully address the issue of women’s representation in public life. Furthermore, my analysis uses a statistical technique, extended beta- binomial maximum likelihood models, that is more appropriate given the grouped nature of the data. By addressing the two concerns of prior research, I am able to determine that not only does women’s representation in the pool of eligible judges affect their representation on state general jurisdiction and appellate courts, but so does the method of selection used to fill the state’s judiciary. While the number of women in the pool of candidates is positively related to representation, partisan judicial elections are negatively related. Other systems, like merit selection, serve to increases women’s representation on state general jurisdiction and appellate courts, while partisan elections decrease representation. The results support the first theoretical explanation of women’s

41 representation on state courts, allowing me to further explore the factors affecting who becomes a judge at the state level.

Given the competing explanations for the lack of women on the judiciary, a rather complicated research design is necessary to test which explanation (or explanations) are most accurate. The larger research project is trying to determine how much of women’s representation is accounted for by each of the three explanations. Presented here is the first part of the research in which I examine the aggregate explanations (such as the formal rules for judicial office) for representation and their impact on the number of women on state courts. This first part of the research is important for two reasons. First, from this look at the variation in the numbers of women in the population, women attorneys, and women judges by state, I determine if the formal rules theory explains the representation of women, at least in part. To understand the factors determining who from the pool of attorneys becomes a judge, and to that end, what factors affect the representation of women on the judiciary, the impact of the formal rules to be a judge must first be explored. Secondly, the research allows me to choose a state to take a closer examination of women’s representation for the later research and explore the individual level explanations for representation. To gain a better sense of how the research I propose answers what affects women’s representation on state courts, a richer explanation of the research design is necessary.

42 3.1 Design

In order to first understand why women appear to be represented in low numbers on state courts, I must first determine if their representation is totally a function of the number of women eligible to be a judge or if there is something beyond eligibility.

Obviously the descriptive statistics on women in the legal profession compared with women on the courts in Chapter 1 suggest that there is some disparity between the number of women with the experience necessary to be a judge and the number of women judges. However, state-level analysis may help clarify if the pool of women eligible to be judges, as affected by the formal qualifications to be judges, helps explain women’s representation on state courts. Therefore, to begin the research I must first determine the number of judges on state judiciaries who are women. I expect there to be a great deal of variation among the states, especially among states with different types of selection systems.

Aside from the general numbers of women in both the legal profession and the judiciary, I will also consider what effect formal rules like age have on the pool of women eligible to be judges. Age will be used as a proxy for the years of practice requirement most states have determining who can be a judge.1 The descriptive look at women in the legal profession by state will show me what the baseline numbers of women in various aspects of the legal profession are and how far a state is away from each baseline. If the number of women on the bench is significantly below the number of

1 Obviously some states have just an age requirement while others have both age and practice requirements. While each of these requirements is important the nature of the data here makes it

43 lawyers who are women, then there is something to explain about the rates at which women and men attain judicial positions.

In addition to the descriptive look at the number of judges who are women and the pool of those eligible to be judges, I will run a maximum likelihood model using a beta binomial distribution. The model will predict the proportion of women on the state judiciary given the pool of women eligible to be a judge, the type of selection system, and region of the country. This model will further explain the reasons for the low representation of women on state courts.

3.2 Hypotheses

I examine two hypotheses in this stage of the research. The hypotheses work to explain representation at the aggregate level, one looking at the pool while the other looks at other formal qualifications that influence representation. First, I expect that the pool of lawyers will be significantly related to the number of women judges in a state.

Hypothesis 1: Women’s presence in the pool of potential candidates will be positively related to their representation on the judiciary.

Despite findings in other areas of research on women and politics, many past studies of the judiciary argue that selection systems are not related to the number of women on state courts (see for example, Alozie 1996 and Hurwitz and Lanier 2003).

Given that the more recent studies of institutional rules show no effect for selection

impossible to distinguish among them. All state requirements are treated like an age requirement because it is only age for which I have data.

44 system on minority representation, it makes sense to suggest a null effect here as well.

Thus, the variables in the model controlling for the selection system in the state should not be related to the representation of women on state courts. Because the hypothesis is expecting a null finding, a lower threshold for statistical significance is necessary.

Hypothesis 2: There should be no relationship between the selection system in the state used to fill the judiciary and the number of women judges in a state.

3.3 Data

The data for this paper come from a variety of different sources. The dependent variable, the number of women judges in a state in 2003, is based on information provided by state court administrators and state court websites.2 The number of seats on a state’s judiciary (a control in the model) comes from The Book of the States (Council of

State Governments 2002). The number of seats creates a bound on the dependent variable, making the dependent variable a proportion. By including the number seats on the state’s judiciary, larger states are not more influential than smaller states. Any conclusions reached about women’s representation on state courts are not driven by the representation of women in larger states.

For the independent variables on the number of women in the pool of eligible judges, the information was taken from the most recent edition of The Lawyer Statistical

Report (Carson 1999).3 The major formal rules affecting likelihood of becoming a judge are eligibility rules in the state, limiting the pool of potential judges in the state. The pool

2 The information on state courts was compiled with the help of the American Judicature Society for their state court project. 3 The most recent report is the 1995 statistical report.

45 of women eligible to be judges is defined here as the number of women lawyers in the state meeting the state’s eligibility requirement to be a judge on a trial court of general jurisdiction. The age or years of practice requirement listed in The Book of the States

(Council of State Governments 2002) combined with information from The Lawyer

Statistical Report (Carson 1999) provided the number of lawyers in each state meeting those requirements. Aside from these formal rules, a number of controls were included in the model. Given the finding that Southern states see less representation of women in political life generally (see Alozie 1996) I included a control variable for the South. The

South variable is dichotomous, coded as one if the state was a member of the

Confederacy and zero otherwise. A control is also included for states in which the governor has the power to appoint interim judges. Finally, the impact of the selection system is coded in two different ways. In one model the variable is comparing appointive systems to systems staffed by popular elections. The dichotomous variable was one for states in which judges are chosen by merit systems, gubernatorial appointment, or legislative elections, and zero otherwise. In the second model I parse out the differences in selection systems. There are dichotomous variables for each of the selection systems except for the excluded category (partisan elections). The coding of the selection system is from the American Judicature Society. For the systems the American Judicature

Society considered to be mixed, I coded the state based on the method by which a majority of the judges reach the bench.

46 3.4 Results

In order to better understand women’s representation on state courts, a descriptive analysis of women in the states is first necessary. Past scholars argued that for women to be represented in greater numbers on state courts, there had to be more women in the eligible pool of judges and more judgeships (Cook 1987). With the passage of fifteen years since Cook’s study, there are certainly both more judgeships and more women in the legal profession. To get an even broader picture of the representation of women on state courts I look not only at state appellate courts but also state trial courts of general jurisdiction.

Table 3.1 shows the variation in the states for the number of women in the population, the number of women attorneys, the number of women who meet the practice or age requirements, the change in the pool due to formal rules, and the number of women judges in the state.4 While there is little variation in the proportion of women in the population of each state, there is a great deal of variation in the proportion of women attorneys, women meeting formal rules, the change in the pool due to formal rules, and women on the bench. In order to determine if any of these differences were meaningful, I calculated the mean of each category and two standard deviations from each of the means. The test showed me how far each state was from a national baseline. The states

4 Because years of practice was not available in the Statistical Report I used age as a proxy for years of practice. In the Report, age was listed in groups (i.e., below 29, 30-34). If five years of practice was the requirement in a state I excluded all women attorneys under the age of 30. If there were both age and practice requirements I used the maximum requirement for the trial court of general jurisdiction to determine the impact of the requirement on the eligible pool. If a requirement was not one of the end points of the group, I excluded the group if the requirement was more than half way between the endpoints of the group. For example, if the requirement excluded those younger than 33, I excluded the whole 30-34

47 that are significantly below the baseline are in bold. States that are significantly above the national average are underlined and in italics. The table shows there are very few states that differ dramatically from the national average for any of the four categories. If the pool of female attorneys able to be judges were the only explanation for representation on the bench, one would think that where women are under-represented in the legal profession, they would also be under-represented on the courts. Likewise, where women are over-represented in the profession, they would also be over-represented on state courts.5 The pattern, however, does not hold true for all states. In West Virginia, for example, women make up 17.8% of the legal profession but a mere 4% of the judiciary. Idaho has the opposite situation where the number of women in the legal profession is 13.5%, but the number of women on the judiciary is not significantly below average (15%). Those states in which women are represented in numbers greater than would be expected seem to fit the explanation of the pool better than those in which women are under-represented. Women are represented in greater numbers in both the profession and the judiciary of Washington, DC. The only states where women are over- represented on the judiciaries but not the professions are Massachusetts and Hawaii. This is not to say that formal rules have no effect. Clearly, there is an impact on the pool of

year old group. If the requirement excluded those younger than 31, I did not exclude the 30-34 year old group. 5 There is an obvious problem given that the percentage of women eligible in 1995 may not equal the percentage eligible in 2003. As women continue increasingly to join the legal profession (at a rate greater than in the past), I would expect that the number of women eligible to be a judge should be lower for 2003 than what is listed in Table 3.1 for 1995 (the total number is increasing, but the proportion that is ineligible would be greater than the past). Because of the problem of the lag in time between the data that are available any claims that one state is over or under-representative of women on the judiciary given the pool should be interpreted with caution. When mo re recent data are available (including the breakdown of attorneys by age) Table 3.1 will be updated.

48 potential candidates. The rules of eligibility in some states significantly affect the number of women eligible to be a judge. For example, the requirements in New Jersey and New York reduce the number of women eligible by 4.9% and 5% respectively.

While the reduction in the pool of potential judges does not move the state significantly below the national baseline, the requirements do cause states, which we might otherwise assume to have a significant number of female judges, to be average, at best. Overall, one must conclude that the pool of those eligible to be a judge, while a significant explanation for the representation of women on state courts, is not the only explanation for the variation. 6

State requirements for being a judge do reduce the number of women eligible to be judges, but the impact is not as great as one might have expected. One explanation for this may be that the statistical information on women attorneys is slightly dated. The impact of these requirements can be better assessed with updated information on attorneys. It is worth noting that by having years of practice requirements, states can significantly reduce the number of women attorneys eligible to be a judge. In fact, the average number of women attorneys is 20.4% and a number of states are close to being significantly below the mean when including a years of practice requirement.

Prior research regarding region does not seem to be confirmed by the descriptive look at the data. States in the South see numbers of women on state courts no lower than states in other regions of the country. Likewise, there are no firm conclusions that can be

6 The correlation between the percentage of women attorneys and the percentage of women judges is .59 and is significant at the .05 level.

49 reached about the impact of selection systems on the representation of women on state courts from this examination of the data.

In order to address the partial effects of the state characteristics, like selection system, on the representation of women on state courts, I moved to a multivariate analysis. I created a model to predict the number of women on state courts given the pool of women eligible, the selection system in the state, the region in which the state is located (i.e. if the state is in the South) and the method for filling interim vacancies on the court (i.e. if the governor has the power to fill such vacancies).7 The model is an extended beta binomial (EBB) model, a maximum likelihood model with a beta binomial distribution, appropriate when using bounded count data.8 While the numbers of trial court judgeships generally far exceeds the number of appellate judgeships, the model seeks to determine the openness of a state to women on the bench, regardless of the level of judgeship.9

Table 3.2 shows the results for the first EBB model. There are 51 observations in the dataset (the 50 states and Washington, D.C.). It is worth noting that these observations are simply groups into which the data are categorized. In fact, there are

7 An alternate model was estimated as well. In this model, the total number of female attorneys in the state was used and an additional dummy variable was used measuring if the state had a years of practice requirement. The years-of-practice requirement was not statistically significant, although in the expected direction. The other variables in the model were unchanged in their sign and significances from the results listed in Tables 3.2 and 3.4. 8 For the sake of comparison, I also ran an OLS model using the same variables. OLS is better in small samples but has problems when predicting proportions or using count data. As expected, the models had significant problems with heteroscedasticity, and attempts to correct the problem did not work because OLS is the wrong functional form for this type of model. EBB is appropriate because the data is not only bound by the total number of judgeships in a state, but there is a negative contagion effect. One woman becoming a judge makes it less likely that the next judgeship would go to a woman. The STATA routine used to estimate EBB was written by Dr. Brad Palmquist.

50 2,304 female judges out of 10,616 total state judgeships, a national average of 22% of judgeships held by women in 2003. The model is as follows:

Number of women judges=b0 + b1 Women + b2 Southern + b3 Appointive +b4 Interim Appt. + e1 Eligible State System by Gov.

The number of women attorneys in a state is statistically significant, and the direction confirms my hypothesis. The direction of the coefficient for southern states is negative as expected and the coefficient on appointive systems is not statistically significant.10

The measure of model significance and the dispersion of the data also suggest that the process is being modeled correctly.11 However, to better understand the effects of these variables on the representation of women on a state’s bench, I need to interpret the coefficients.

Because I cannot interpret the EBB coefficients by themselves, I calculated the discrete change for each of the variables as well as the baseline prediction for the model.12 The values for this model are listed in Table 3.3, and statistically significant changes are in bold. The baseline for the model was non-southern states with elective systems, interim appointment by the governor, and the national average of women who

9 The control for the number of seats on the state’s judiciary is used in the estimation commands but does not appear in the results. 10 Because the hypothesis is to see no effect for selection system, I would use a less rigorous measure of significance such as .10 or .15. Even with the less rigorous standard, the coefficient for appointive systems is nowhere near significant. 11 The measure of dispersion, gamma, is significant, meaning I can reject the null of equidispersion, suggesting EBB is the appropriate model. 12 The impact of the variables is the change in the odds ratio, thus calculating discrete change makes sense. To calculate discrete change, I held all variables, except the variable of interest, at their means (or mode if the variable was dichotomous) and multiplied them by their coefficients. The variable of interest was changed from zero to one (if it was a dummy variable) or from one standard deviation below to one standard deviation above. The total of the first equation was subtracted from the second equation to give me the discrete change.

51 meet the eligibility requirements. The baseline model predicts women will hold 21% of state judicial seats, slightly under the national average of 22% but consistent with several states from Table 3.1, such as Ohio. Moving the number of women attorneys in a state to the minimum number of women attorneys decreases the representation of women judges by roughly 7%. Likewise raising the number of women attorneys to one standard deviation above the mean raises the representation of women on the state judiciary by almost 10%. Thus, the first hypothesis sees some support from the data. Greater numbers of women eligible to be judges increases the representation of women on state courts. States in the South see a 22% decrease in the representation of women on the judiciary, all else being equal, but the change is not statistically significant. The direction of the variable is consistent with my expectation. States with selection systems in which the governor, legislature, or a nominating commission choose the members of the judiciary see a 3% increase in the representation of women on the judiciary. The coefficient is not statistically significant from zero suggesting the third hypothesis of no relationship for selection system is confirmed, in part. Clearly a more thorough examination of the types of selection systems is necessary to understand if there is a relationship between selection system and representation of women on state courts.

Systems in which the governor does not fill interim vacancies on the court see a 6% increase in the representation of women on state courts.

Figure 3.1 further explores the impact of the pool of women eligible to be a judge on the representation of women on state courts. The figure breaks down the impact of the

52 pool by system and region. The figure was based on the model in Table 3.2. Using the predicted count for each of the variables in the model, the figure shows the impact of the pool of women eligible to be judge on women’s representation by region and selection system. According to the model non-southern states, regardless of selection system, should see women attain 30% of all state general jurisdiction and appellate seats when there are 7,500 women in the pool of eligible judges, all else being equal. Southern states, on the other hand, will not see women reach 25%, regardless of selection system, even with 7,500 women in the pool of eligible judges, all else being equal. Although the coefficient on region is not significant, the differences by region on the pool of women eligible make an interesting suggestion about other factors that can further influence the impact of the pool of eligible judges. The model, while interesting and statistically significant, does not parse out the full amount of state level variation that can be explained. Thus, in order to fully understand the impact of state level characteristics on the representation of women on state courts, a model with a higher level of specification is necessary.

Table 3.4 shows the results of a second extended beta binomial model. In this second model the full amount of variation in selection systems is included. The model is:

Number = b0 + b1Women + b2 Southern + b3 Gov. +b4 Leg. +b5 Merit + b6 Nonpart. + b7Interim Appt. + e1 Wmn Judges Eligible State Appt. Elect Select Elect by Gov.

This more specific model is again statistically significant and the measure of dispersion suggests that the process is properly modeled.13 Not surprisingly, the number

13 The measure of dispersion, gamma, is significant, meaning I can reject the null of equidispersion, suggesting EBB is again the appropriate model.

53 of women attorneys in the state is again statistically significant and in the expected direction. The dummy variable for the South is signed correctly but still not statistically significant. Interim appointment approaches significance while some of the state selections systems are significant at conventional levels. Interim appointment is signed opposite what the existing literature would suggest. Past studies argue that interim appointment by the governor should lead to women being better represented in states because the state’s executive receives a political benefit from putting women on the bench (see for example, Slotnick, 1984). Here the direction of the coefficient suggests women’s representation suffers in states where governors have the power of interim appointment. The significance of selection systems (even at conventional levels) on the number of women on a state’s judiciary is a somewhat surprising finding. The literature on selection systems seems to suggest that there was no clear relationship between selection system and women on the judiciary. To understand the impact of these variables, I again need to consider the discrete change.

Table 3.5 shows the discrete change of the variables in the second EBB model.

For this model the baseline was non-southern states, with partisan electoral selection systems, interim appointment by the governor, and the average number of women attorneys who meet the eligibility requirements. The baseline model predicts that 17% of the seats should go to women, slightly under the national average of 22% but consistent with some of the states from Table 3.1 such as Indiana. Increasing the number of women attorneys in the state to one standard deviation above the mean increases the representation of women on state courts by 16%. Likewise, moving the number of

54 women attorneys in the state to the minimum decreases the representation of women on state courts by 12%. States in the South again see a decrease in the representation of women on state courts, a 27% decrease in this second model. Interestingly, one selection system leads to a decrease in the representation of women on state courts. Election by the legislature decreases the representation of women on state courts by 42%. It is worth noting that there are very few states using this system and the result was not statistically significant, so any conclusions are tenuous. Appointment by the governor appears to increase representation, but the impact is less than 1%, and again, it is not statistically significant, nor a common method of selection. Merit selection and nonpartisan elections, on the other hand, increase the representation of women on state courts. Merit selection increases representation by 38% while nonpartisan elections increase the number of women by 39%. The mixed results for elective and non-elective systems explains the unusual finding in the first model, with both elective and appointive systems suggesting a decrease in the representation of women on state courts. With the statistical significance of some of the selection systems, I fail to confirm the second hypothesis that selection systems are unrelated to the representation of women on state courts. States without gubernatorial power to make interim appointments increase the representation of women, now to 39%. The finding once again contradicts past findings on interim appointment.

Figures 3.2 and 3.3 show the impact of the pool of potential candidates on the representation of female judges in states with various types of selections systems. Figure

3.2 shows the impact of the pool in non-southern states while Figure 3.3 is the impact for

55 states in the South. 14 Again, the figures are based on the predicted counts from the model in Table 3.4, specifically looking at the impact of the pool of women by region and selection system. The figures point to some rather stark differences in region (although the variable itself was not statistically significant). In non-southern states that have nonpartisan or merit selections systems, the model predicts that, all else being equal, when the number of women in the pool of eligible judges reaches 7,500 women should hold 35% of all state general jurisdiction and appellate seats. In non-southern states using partisan elections or gubernatorial appointment to fill the bench, all else being equal, women will be under 25% with the same number of women in the pool. The story in southern states is somewhat different. It would take 7,500 women in the pool of eligible judges for women to hold 30% of the seats on state general jurisdiction and appellate courts in non-partisan and merit selection states in the South, all else being equal. Partisan electoral systems and gubernatorial appointment of judges mean 7,500 women in the pool of eligible judges would be necessary for women to hold just over

20% of the state general jurisdiction and appellate seats in the South, again, holding all else equal.

The results suggested by these figures point to two important conclusions. First, there is a real impact of the pool of eligible candidates on the representation of women on state general jurisdiction and appellate courts. What is important about the impact of the pool, aside from its direct effect on women’s representation, is what it tells us about the impact formal rules can have on women’s representation on state courts. The

14 All states are assumed to have interim appointment on the judiciary filled by the governor.

56 requirements to be judge in some states are so high, they can reduce the number of women in the pool of eligible judges by as much as 5%. These requirements further retard the progress women make to the judiciary. While women increasingly join the legal practice within a state, they must still wait the requisite number of years before they are eligible to run for the judiciary. Thus, despite their increasing presence in law, it could still take ten years before this new group of women meet state eligibility requirements to run for the judiciary, perhaps making it even longer before the number of women on the courts reaches the number of men.

The second conclusion of these figures is that the impact of the pool of women eligible to be judges is attenuated by the selection system used to fill the judiciary in the state. Some selection systems work to the disadvantage of women seeking seats on the bench (or perhaps causing them to decide not to run at all). Despite increasing representation of women in the pool of eligible judges (and even equaling numbers that bring greater representation in other states with alternate selection systems), women will not equal the representation of men on state courts until an even greater number of women join the pool. Thus, the figures show there are multiple influences on the number of women reaching the judiciary and that parity will not be reached across states (or even within region) at the same time.

3.5 Conclusions

The results of this study are merely the beginning of the story about women’s representation on state courts. By looking at the representation of women on all state

57 courts of appellate and general jurisdiction, I have found that the number of women eligible to be a judge, as affected by the formal rules for becoming a judge and institutional factors such as the method of judicial selection, all influence the number of women on state courts. Greater numbers of women eligible to be a judge lead to greater representation of women on state courts. Furthermore, state level characteristics like selection system, which arguably are applied similarly to all people interested in being a judge, influence the number of women on state courts.

This research contributes to the literature on women’s representation, as well as the judicial literatures, in several ways. First, the research is an update of past studies of women’s representation that suggested time was needed for women’s representation on state courts to increase. Indeed, with the passage of time more women have joined the legal profession and the state judiciary. The benefit of the passage of time on representation is not what some might have hoped, however. The proportion of women on state judiciaries has not kept up with the number of women in the legal profession, further suggesting that it is more than the pool of women eligible to be a judge that affects the representation of women on state courts.

Unlike past studies of women’s representation on state courts, I have also considered the representation of women on trial courts of general jurisdiction. While it could be argued that the results are driven by the greater numbers of trial court judgeships than appellate judgeships, this study is looking at representation in a state regardless of level of judicial office. It is somewhat unfair to say women are under-represented on state courts or selection systems do not influence representation without considering

58 multiple levels of courts. By including women on trial courts, I can get a better picture of women’s representation on the judiciary and what affects representation.

Finally, this study considers the aggregate explanations of representation while the larger project will also look at individual level explanations in an attempt to consider all possible reasons for the numbers of women represented on state courts. It is clear that aggregate explanations such as the pool of women eligible for the judiciary, formal rules like years of practice, and state selection systems all significantly affect women’s representation on state courts. However, to understand representation more completely I need to examine further representation and individual explanations for it.

The results of this study provide evidence for the formal rules theory of the representation of women on state courts. The more women in the eligible pool of judges, the more women there are on state courts. While the formal rules do not have a very broad impact, they do serve to reduce the total number of women who, while practicing law, are not old enough or have not been practicing long enough to be a judge. To determine the impact of the other two theories of representation, application of informal requirements and different levels of ambition, additional research needs to be conducted looking at individual level accession to the judiciary.

In order to determine the impact of informal requirements for the judiciary, as well as ambition, another type of research is necessary. Because informal requirements are not comparable across states, and because factors like state culture are likely to have a unique effect on women joining the judiciary, a more individual level analysis is necessary. The individual level analysis is explored in the remaining chapters.

Percent Change in Percent Percent Women Pool of Percent Women in Women Attorneys Potential Women Population Attorneys 1995 (min. Women Judges State 2000 1995 practice)15 Judges16 2003 National Mean 50.9% 21.6% 20.4% 1.2% 21.1% National Median 51.0% 21.5% 19.9% 1.1% 21.0% Alabama 51.7% 17.4% 17.40% 0.00% 13% Alaska 48.3% 25.8% 24.70% 1.10% 23% Arizona 50.1% 22.8% 21.50% 1.30% 23% Arkansas 51.2% 17.1% 16.10% 1.00% 13% California 50.2% 26.4% 22.80% 3.60% 22% Colorado 49.6% 24.9% 23.70% 1.20% 17% Connecticut 51.6% 24.5% 24.50% 0.00% 22% Delaware 51.4% 24.2% 24.20% 0.00% 17% DC 52.9% 31.0% 29.60% 1.40% 44% Florida 51.2% 21.6% 19.90% 1.70% 24% Georgia 50.8% 22.8% 20.90% 1.90% 18% Hawaii 49.8% 24.8% 22.00% 2.80% 39% Idaho 49.9% 15.9% 13.50% 2.40% 15% Illinois 51.0% 22.9% 22.90% 0.00% 23% Indiana 51.0% 19.3% 19.30% 0.00% 15% Iowa 50.9% 17.2% 17.20% 0.00% 18% Kansas 50.6% 18.4% 17.60% 0.80% 7% Kentucky 51.1% 20.4% 16.10% 4.30% 25% Louisiana 51.6% 20.3% 18.90% 1.40% 22% Maine 51.3% 23.7% 23.70% 0.00% 17% Maryland 51.7% 25.7% 23.90% 1.80% 28% Massachusetts 51.8% 27.1% 27.10% 0.00% 40% Michigan 51.0% 19.9% 19.90% 0.00% 23% Minnesota 50.5% 23.7% 23.70% 0.00% 28% Mississippi 51.7% 15.0% 13.60% 1.40% 20% Numbers in bold are more than two standard deviations below the mean. Italicized numbers are more than two standard deviations above the mean

Table 3.1 – Representation of Women by State

15 This number was found by looking at the requirements for being a general jurisdiction trial court judge. If there was a criterion like minimum age, I looked at the Statistical Report to see how many female attorneys were at or below that age. I then subtracted the number of ineligible women from the total number of female attorneys and divided by the total number of attorneys (after subtracting the number of ineligible women and men). If there was a years of practice requirement, I added the years to 25 (age when graduating from law school) and used age as a proxy for years of practice. I then used the same method lis ted above to find the pool of eligible women for that state in the analysis in Tables 3.2 and 3.4. 16 The change in the pool of potential judges is the decrease in the percentage of women due to the formal requirements to be a judge in the state.

Percent Change in Percent Percent Women Pool of Percent Women in Women Attorneys Potential Women Population Attorneys 1995 (min. Women Judges State 2000 1995 practice) Judges 200317 Missouri 51.4% 21.5% 19.90% 1.60% 17% Montana 50.2% 18.2% 17.00% 1.20% 15% Nebraska 50.7% 18.8% 17.30% 1.50% 14% Nevada 49.1% 20.2% 20.20% 0.00% 34% New Hampshire 50.8% 24.8% 24.80% 0.00% 21% New Jersey 51.5% 24.1% 19.20% 4.90% 23% New Mexico 50.8% 27.4% 25.50% 1.90% 21% New York 51.8% 25.6% 20.60% 5.00% 25% North Carolina 51.0% 21.6% 21.60% 0.00% 10% North Dakota 50.1% 16.8% 16.80% 0.00% 17% Ohio 51.4% 19.8% 18.50% 1.30% 22% Oklahoma 50.9% 19.9% 19.00% 0.90% 26% Oregon 50.4% 22.3% 22.30% 0.00% 25% Pennsylvania 51.7% 24.9% 24.90% 0.00% 22% Rhode Island 52.0% 20.8% 20.80% 0.00% 33% South Carolina 51.4% 19.0% 14.90% 4.10% 12% South Dakota 50.4% 16.7% 16.70% 0.00% 19% Tennessee 51.3% 19.8% 18.30% 1.50% 16% Texas 50.4% 22.4% 20.90% 1.50% 27% Utah 49.9% 16.3% 16.30% 0.00% 13% Vermont 51.0% 24.3% 23.50% 0.80% 32% Virginia 51.0% 21.0% 19.40% 1.60% 12% Washington 50.2% 24.9% 24.90% 0.00% 31% West Virginia 51.4% 19.9% 17.80% 2.10% 4% Wisconsin 50.6% 19.8% 18.10% 1.70% 14% Wyoming 49.7% 17.9% 17.20% 0.70% 14% Numbers in bold are more than two standard deviations below the mean. Italicized numbers are more than two standard deviations above the mean

Table 3.1 – Representation of Women by State (continued)

17 The percent for Georgia and Illinois are based on 2001 numbers. The percent for New York is based on 2002 numbers. For all three states this was the most recent information available.

Number of Women Coeffic ient Standard P>|z|18 Confidence Judges in State Error Interval Number Women Attorneys19 2.24 e-05 1.26e-05 0.077 -2.38e-06 4.71e-05 Southern State -0.2225 0.1609 0.167 -0.5378 0.0928 Appointive System 0.0292 0.1265 0.817 -0.2186 0.2771 Interim Appt. by Governor -0.0616 0.2135 0.773 -0.4801 0.3569 Constant -1.3278 0.2426 0.000 -1.8032 -0.8524 Gamma _cons 0.0219 0.0063 0.000 0.0096 0.0342 Phi 0.0214 0.0060 0.000 0.0095 0.0331 Likelihood ratio test of phi=0: C2 (1) = 92.96 Prob > C2 = 0.0000 Log likelihood = -5418.8674 Likelihood ratio of model: C2 (5) = 100.09 Prob.> C2 = 0.000

Table 3.2 - EBB Model of Women’s Representation on State Courts, Collapsed Selection Categories (Logit Link)

18 Due to the small nature of the sample size, I used a less rigorous standard of statistical significance. If the sample were larger, the standard .05 level of significance would have been used. However, because there may be effects for the variables clouded by the small sample and because the research conducted here is somewhat new to the field, a less rigorous level of significance seems appropriate. 19 This variable is the number of women attorneys in the state meeting the age or years of practice to be a judge on the trial court of general jurisdiction. It is found subtracting the number of women ineligible from the total number of female attorneys.

Variable Expected Change in the Number of Women Judges Baseline Prediction 0.2115

Number of Women Attorneys – Low20 -0.0686 Number of Women Attorneys – High 0.0914 Southern State -0.2225 Appointive System 0.0292 No Interim Appointment by Governor 0.0616

Table 3.3 - Discrete Change for EBB Model, Collapsed Selection Categories21

20 For purposes of Tables 3.3 and 3.5, low means the minimum number of attorneys and high means one standard deviation above the mean. Using one standard deviation below the mean would be a negative number. 21 Baseline is the count in a non-southern state with an elective system, interim appointment by the governor, and the national average number of women attorneys.

Number of Women Coefficient Standard P>|z| Confidence Judges in State Error Interval Number Women Attorneys 3.98 e-05 1.54 e-05 0.010 9.62 e-06 7.0 e-05 Southern State -0.1402 0.1593 0.379 -0.4525 0.1721 Gubernatorial Appt. 0.0033 0.2787 0.991 -0.5430 0.5496 Legislative Election -0.4240 0.4149 0.307 -1.2372 0.3892 Merit Selection 0.3788 0.1784 0.034 0.0292 0.7284 Nonpartisan Election 0.3900 0.1761 0.027 0.0447 0.7352 Interim Appt. by Governor -0.3884 0.2401 0.106 -0.8590 0.0821 Constant -1.3479 0.2493 0.000 -1.8366 -0.8593 Gamma _cons 0.0182 0.0053 0.001 0.0077 0.0287 Phi 0.0179 0.0052 0.001 0.0077 0.0279 Likelihood ratio test of phi=0: C2 (1) = 78.64 Prob > C2 = 0.0000 Log likelihood = -5415.0013 Likelihood ratio of model: C2 (8) = 107.82 Prob.> C2 = 0.000

Table 3.4 - EBB Model of Women’s Representation on State Courts, Full Selection Categories (Logit Link)

Variable Expected Change in the Number of Women Judges Baseline Prediction 0.1672

Number of Women Attorneys – Low -0.1219 Number of Women Attorneys – High 0.1625 Southern State -0.2706 Gubernatorial Appointment 0.0033 Legislative Election -0.4240 Merit Selection 0.3788 Nonpartisan Election 0.3900 No Interim Appointment by Governor 0.3884

Table 3.5 - Discrete Change for EBB Model, Full Selection Categories 22

22 Baseline is non-southern states with partisan systems, interim appointment by the governor, and the national average number of women attorneys eligible to be judges.

Figure 3.1 – Impact of the Pool on the Percentage of Female Judges, All Systems, Interim Gubernatorial Appointment (Limited Model)

Figure 3.2 – Impact of the Pool on the Percentage of Female Judges, All Systems, Non- Southern States, Interim Gubernatorial Appointment (Full Model)

Figure 3.3 – Impact of the Pool on the Percentage of Female Judges, All Systems, Southern States, Interim Gubernatorial Appointment (Full Model)

CHAPTER 4

INFORMAL REQUIREMENTS FOR THE TEXAS JUDICIARY

In 2003 women held 27% of state general jurisdiction and appellate judicial seats in the state of Texas. The state of Texas is one of the few states in which the representation of women on the judiciary is relatively equal to the representation of women in the pool of potential judges (or women in the legal profession meeting state level requirements to be a judge). The representation of women is somewhat surprising given a number of factors about judicial elections in Texas: the highly partisan and volatile nature of Texas judicial elections, the increasing expense of judicial elections, the power of appointment by the governor, and the relatively conservative and traditional nature of the state. Most of the characteristics would lead a researcher to think that women would be relatively under-represented on state courts, yet this appears not to be the case. The low level of impact for these state level factors on women’s representation leads to the conclusion that perhaps women’s representation on state courts, at least in the state of Texas, is the product of another set of factors.

69 Apart from the state level characteristics that political science research has found to affect representation, especially representation among women, there is another set of factors which could potentially impact the number of women on state courts. This chapter explores characteristics that are likely to affect the probability of a person becoming a judge and the distribution of those characteristics within the pool of eligible judges, as well as within the pool of current judges, in the state of Texas. Using a survey from a sample of attorneys and state general jurisdiction and appellate judges in Texas, I can better determine how individual level characteristics shape a person’s likelihood of becoming a judge and if differences in characteristics explain women’s representation on state courts. For example, if prior electoral experience makes a person more likely to become a judge and there are few women attorneys with prior electoral experience, then women’s representation can be explained, in part, by the informal requirement of prior electoral experience. Likewise, if women are more often encouraged to be a judge than men and encouragement to run for the judiciary affects one’s likelihood of winning a seat, then representation can be explained by the encouragement of women as well. In order to determine the most important informal characteristics to reach the judiciary, it is important to examine the characteristics of both those who reach the bench and those who do not.

4.1 Why study attorney and judges

As other studies of elective office suggest, any number of factors can make it difficult to study attaining seats on the judiciary. After all, it is nearly impossible to

70 understand the decision-making of those not on the bench; some would argue that their decision not to run excludes them from any analysis, or so one might think. To avoid the potential selection bias of those not on the judiciary, one can broaden the sample which one studies by including potential candidates for office. For studying the decision to join the judiciary, there is an obvious pool of candidates available for research-- attorneys.

Unlike some other offices, one must at the least be a practicing lawyer to become a judge, creating a clearly defined pool of potential candidates.

Past studies examining representation have relied on the use of survey data to understand the differences between those in office and those who never reach office.

Some of these studies have surveyed people in the pool of potential candidates for higher office, such as those in a lower legislative chamber, or attorneys and business people across the country (see for example Fox and Lawless 2004; Fox, Lawless, and Feeley

2001; Maisel, Stone, and Maestas 1997; Sanbonmatsu 2002). The results of these past studies suggest that, at times, there are informal characteristics that affect a person’s likelihood of attaining political office and, more significantly, women and men differ in these characteristics. Moreover, past studies concluded that recruitment is a key component in developing ambition for office or for running for office at all (Carroll

1994).

The results of past research on representation clearly show that there is something to be gained by surveying potential candidates to understand their perceptions and experiences in running for office. Therefore, to understand the representation of women on state courts, a survey of potential candidates will provide useful information about

71 characteristics like gender and their effect on the attainment of seats on the judiciary. For purposes of this research, the pool of potential candidates are those who meet the minimum formal requirements to be a judge, attorneys licensed to practice in the state and practicing for at least four years.

4.2 Why Texas

I chose Texas to conduct my survey for a number of reasons. First, 27% of

Texas’s judiciary is composed of women, just above the national average of 22% but not more than two standard deviations from the mean. One could then argue that Texas is comparable to other states in terms of women’s representation on state courts.

Additionally, given the number of judges on the general jurisdiction and appellate bench

(515) along with the relatively strong representation of women, I had the opportunity to survey one of the largest numbers of women state judges in the United States.

There are other interesting aspects of the Texas judiciary that make it worthy of study. Texas is a state of partisan elections to fill the state judiciary. Partisan elections are one of the more common selection methods for filling state judiciaries, making it possible for me to understand broadly the representation of women on state courts.

Additionally, given the analysis conducted in Chapter 3, by studying representation in

Texas, I can better understand what it is about partisan electoral systems that appear to depress women’s representation.

One potential explanation for women’s lack of participation in partisan electoral systems is the bitter nature of some campaigns. Partisan elections in Texas tend to be a

72 bit more volatile than in other states and I expect that the volatility of the elections is more likely to discourage women from running for judge than it would men. Sitting judges have been known to face challengers in the primary and lose despite having endorsement from the party and a considerable monetary advantage (Williams 2002).

The Republican Party has a significant advantage when running for the judiciary, as evidenced by all seven Supreme Court justices being from the Republican Party. The dominance of the Republican Party is so great that in some years, such as 2000, the

Democrats failed to put forward any candidate for the Supreme Court. The nature of the campaigns has been known to get hostile; groups like the Chamber of Commerce frequently run issue ads during the campaign questioning the qualifications and decision- making of Democratic candidates.

Elections in Texas are also increasingly expensive. The high costs of campaigns can have two potential effects. First, knowing that an enormous amount of money is necessary to launch an effective campaign, some potential candidates may opt not to run.

This barrier may be especially salient to women who are already overburdened with the demands of career and family, as they simply would have less time to spend on fundraising. The second potential effect of the high costs of campaigns is that a potential candidate, especially a potential female candidate, may not perceive she would be able to raise the amount of money necessary for a campaign, even if she were willing to make such a time commitment. While some studies have found women raise money at the same rates as their male counterparts (see for example Burrell 1994), potential candidates may not be aware of their ability to raise money. The perception of an inability to raise

73 money, no matter how untrue, may be enough to prevent a potential female candidate from running for the judiciary.

With either potential effect, the costs of campaigns can serve as a barrier to running for judicial office. A monetary barrier is not insubstantial. Over the last 25 years the costs of judicial campaigns in Texas increased over 450% (American Judicature

Society 2003). The increasing cost of campaigns in the state created the opportunity for large interest groups and corporations to make contributions to those running for judge.

The influence of these groups on judicial decisions led some in the state to argue that justice is for sale in the state of Texas (Medaille and Wheat 1998). As a result of the appearance of group influence on decisions by the judges of the state courts, some officials, including Chief Justice Phillips, began calling for reform to the system of judicial selection in the state. The most recent attempt to move to a merit selection system in 2003 failed to reach the floor of the state house, making it unlikely that the system would change (Wolfson 2003).

The hostility of the races, combined with their increasing cost, is likely to have an effect on the make up of the pool of candidates having the ambition to run for the judiciary. Attorneys who identify with the Democratic Party or who tend to be ideologically liberal are not likely to win a seat on the judiciary in the state of Texas, making it increasingly likely they will not see the judiciary as a viable career path. If, as other research suggests, women are more likely to be ideologically liberal or more likely to identify with the Democratic Party, they are less likely to see the judiciary of Texas as a valid career path. Looking for the influence of contributions on votes means that the

74 judges who do reach the bench are likely to be highly scrutinized, further discouraging people from seeking the bench. Finally, the high costs of campaigns are likely to discourage those without strong contacts or resources from running for office simply because they can not afford the campaign or think they can not afford to run.

Aside from the nature of Texas judicial elections, there are also formal requirements for the Texas judiciary that could potentially further limit the pool of candidates, as shown by the research in Chapter 3. Texas has an unusual set of requirements to be a judge on the state courts. Appellate court judges must be at least 35 years old and have ten years of experience practicing law or serve as a judge of a court of record at least ten years. Trial court judges must be at least 25 years old and have practiced law or served as a judge of a court in the state (or both) for four years (Council of State Governments 2002). Additionally, judges must be U.S. citizens and a Texas resident. There are no other formal requirements for holding judicial office in the state of

Texas. It is important for the research conducted here to control for the effects of the formal rules shown to affect the number of women on the judiciary. The years of practice requirement in the state tends to work to the disadvantage of women, who are relatively new to the practice and, thus, are not as eligible to be judges. The survey I conduct allows me to understand other factors that decrease women’s representation on the judiciary in addition to the effect of the formal requirements in the state.

One final element to the Texas judiciary is the role the governor plays in filling interim appointments, a common element in many states. The power to appoint an interim judge can affect the representation of women in a number of important ways.

75 Those who run for the judiciary after being appointed to fill an interim vacancy are more similar to an incumbent than they are to a challenger. Not only do they have a history of service on which to run, they have name recognition and greater resources to launch an effective campaign. These appointments reduce the number of open seats, an important element in increasing women’s representation in public life, including state courts (see for example, Darcy, Welch, and Clark 1994). If a governor is more likely to appoint men than women, or if a governor is more likely to appoint those with specific characteristics

(like a conservative ideology), and men are more likely to share those characteristics, the representation of women on the Texas state courts is being affected by the interim appointment power of the governor. Those who have examined the appointments made by Texas governors, specifically the appointments of then Governor Bush, found that of the 88 judges Bush appointed, 17% were from a racial minority (Council 1999). The biggest criticisms of the appointees seemed to be that the party was not consulted about appointments and that many of the appointees had relatively little experience, either in practicing law or as a judge (Council 1999). The judges were categorized as moderate to conservative ideologically, but character was a more important consideration than ideology. While studies of appointments to the Texas judiciary are limited, both in number and breadth, the preliminary results suggest that the representation of women on

Texas state courts would be moderately affected by the interim appointment power of the governor. Therefore, the survey should also consider how many of the judges reached the bench initially through appointment.

4.3 Sample

Using a list purchased from the Texas Bar Association, I drew two samples of attorneys, one male and one female. Membership in the Bar Association in Texas is mandatory, providing me with the opportunity to sample from the universe of attorneys in the state. The list provided to me included all the attorneys registered with the state bar association as of 2002. The number of attorneys from which the sample was drawn totaled 61,197. Of the total, 17,055 attorneys were women, roughly 28%. The structure of the data was such that I was not able to exclude those attorneys not meeting the state years of practice requirement.1

The list of attorneys was converted into an SPSS file. The file was then split into male and female attorneys based on the prefix they had before their names. Once the file was split by gender, I drew a random sample of approximately 400 attorneys from each list using SPSS’s random sample routine. Four hundred women attorneys were sampled out of a total of 17,055 (roughly 2%) whereas 400 men were sampled out of 44,127 total

(roughly 1%).2 I preferred to draw equal numbers of people to sample rather than equal proportions of people in each group, so that I would have even numbers in the groups to compare their responses.

To get the most complete list of judges I used the 2002 edition of The American

Bench (Forster-Long, Inc 2002). The book lists all judges in the state and the courts on

1 There was no year admitted to the bar, number of years practicing, or age in the data as I received it. 2 There were 15 people for whom I was unable to code gender from their prefix or first name. These 15 people were not included in the lists from which I drew my sample. Also excluded from the sample were those without a Texas mailing address or those listed on military bases.

77 which they serve, 515 total judges on state appellate and general jurisdiction trial courts.

Because the book was current as of May of 2002, I looked up each judge on the court’s web-page to confirm they were still serving on that court. If the judge was no longer listed for that court, I changed the name of the judge on the court in the database to what was listed on the court’s web-page. Once I confirmed all the names, I had a complete list of judges working on the state general jurisdiction trial and appellate courts. All judges on the completed list were sent surveys, 130 women and 385 men.

4.4 Survey

Two surveys were constructed, one for judges and one for attorneys.3 The surveys are largely the same with the exception of the wording of some of the questions.

The purpose of both surveys was to gather information on the perceptions and experiences of running for the judiciary in the state of Texas, as well as learning about the characteristics of both pools. Judges were asked about their current position on the court, how they reached the bench, and what made them decide to seek that position. In addition to questions about their current court, the judges were asked if they ran for any other judicial position, as well as any non-judicial elective office. Judges were also asked about being encouraged to run for the judiciary, likes and dislikes about serving, their feelings on various campaign activities, their perceptions of women’s ability to reach the bench, and some demographic questions. Attorneys were asked whether they ever ran for judge, their experiences if they had, and the factors influencing their decision. If they had

3 Copies of both surveys are included in Appendix B.

78 never run for the judiciary, they were asked if they would ever consider running for judge. Additionally, they were asked to discuss attempts to run for other elective office, whether they served, and the factors influencing their decision to run. Like the judges, attorneys were asked about encouragement to run for judge, the same series of questions about perceptions of the judiciary and campaign activities, and finally some demographic questions. The construction of the survey is similar to other studies examining differences in the pool of potential candidates (see for example Fox and Lawless 2004), and the construction and administration of the survey conformed to standard survey practices (Dillman 1999).

All judges and attorneys in the sample were sent the survey via first class mail with a self-addressed stamped return envelope.4 A cover letter, sent on university letterhead, was included with the survey to discuss the purpose of the survey as well as information about myself. Two weeks after the survey was originally mailed, a postcard reminder was sent to everyone to whom I sent the original survey. The postcard merely served to remind people of the survey and the confidentiality of their responses. Two weeks after the postcard reminder was sent, a second mailing of the survey went out only to women judges. I sent the second mailing only to women judges because the budget of the survey was limited. Of all groups in the survey, women judges are the most rare, making their responses more difficult to get with only a mailing and a reminder. Since they were the group of primary interest to my research, I choose them as the group with

4 The stamp used was an American flag. As Dillman notes (1999) even the stamp used on a survey can affect the response rate. I chose the American flag stamp because of all the stamps available at the time the survey was mailed, it seemed the least controversial.

79 which I would follow up a second time.5 Again included in the second mailing were a cover letter, the survey, and a self-addressed stamped envelope.6

4.5 Response Rates

Of the 1317 surveys sent out, 529 were completed and returned to me, a response rate of approximately 40%. Of the 529 surveys returned, 290 were responses from attorneys while 239 were from judges. Five surveys were returned blank (three male attorneys and two judges, one male and one female) while nine were returned by the post office because the person had moved without leaving a forwarding address (eight attorneys, three male and five female; one male judge). 212 women returned completed surveys (144 lawyers and 68 judges) while men completed 311 surveys (144 lawyers and

167 judges).7 The within group responses rates are as follows: female attorneys 36%, male attorneys 36%, female judges 52%, and male judges 44%. The higher response rate among female judges is no surprise because they received one additional follow-up. The higher response rate among male judges, relative to all lawyers, is somewhat surprising.

It is possible that the judges were more interested in answering the survey, and conversely, that attorneys were less interested because they felt they had some background for answering the questions. The cover letter mentioned wanting to understand perceptions and experiences in running for judge, thus it is possible attorneys

5 There is no way for me to know if any of the female judges responded to the survey more than once, although I think it is unlikely. No two sets of survey responses were so similar that they appeared to be filled out by the same person. 6 Female judges that chose to identify themselves in the surveys they returned were not sent the second copy of the survey. This was done to prevent potential duplicate responses , as well as to save money.

80 felt they did not need to respond if they had not run for judge. It is also possible that attorneys who were more interested in the judiciary were more likely to respond than those with no interest. Whatever the reason, the response rates for all categories are fairly strong given the survey mode and the number of follow up mailings.

4.6 Descriptive Results

In this chapter I analyze survey results to determine the informal requirements that affect a person’s likelihood of being a judge. The first step in determining important informal requirements is to compare judges and attorneys on a series of responses to the survey questions. Not only are the responses compared by occupation, but also by gender. These comparisons allow me to determine what may be important informal requirements that distinguish attorneys within the pool, making them more likely to become a judge. After looking at the differences among groups descriptively, the chapter lays out the hypothesized informal requirements that appear to affect likelihood of becoming a judge. Finally, a multivariate analysis predicting being a judge based on a series of characteristics will show the importance of various informal requirements on becoming a judge. The multivariate analysis is the best test of the informal requirements for becoming a judge because it allows for the controlling of other explanations, like years of practice, that have been shown to affect the process of becoming a judge.

Potentially, there are an unlimited number of informal requirements that could affect a person’s likelihood of becoming a judge. Prior campaign experience, activity

7 Six surveys were returned completed but the respondent did not answer the gender question, two were

81 within a party, a specific ideological or partisan disposition, recruitment by party elite, race, marital status, legal experience, etc., all could potentially make an individual appear more or less qualified for the judiciary. In order to uncover what factors informally affect a person’s likelihood of becoming a judge in Texas, the survey asked a variety of questions about the respondent’s prior professional and legal experience, as well as some demographic information on the individual. By first looking at differences within each of the four groups on these characteristics and then looking at the impact of these characteristics in a multivariate context, I can begin to better understand the informal requirements affecting an individual’s likelihood of becoming a judge in the state of

Texas.

Table 4.1 shows the differences in response categories for judges by gender.

Given the difference in the number of cases between female and male judges, all differences between the categories should be interpreted with caution.8 The general descriptive look at the data shows some interesting results with respect to both attorneys and judges and to their individual level characteristics. Looking at the differences by group better explains women’s representation, but before moving to the differences between groups on the informal requirements, some other comparisons are necessary.

A greater proportion of the female judges responding to the survey serve on appellate courts. Of the women responding, a greater proportion was elected to the bench while men were more often appointed. Of those with experience serving on a lower

attorneys while the other four were judges. 8 All differences significant at the .05 level are in bold except for differences between white attorneys and attorney’s feelings about the barriers men face in their legal careers which are significant at the .072 and .076 levels respectively. All differences were calculated using one-way ANOVA.

82 court, women were more often initially appointed to that position while men were more often elected. Women judges with prior experience not on a general trial or appellate court were again more often appointed to that position while men were more likely elected.

Consistent with the findings of other research examining the participation of men and women, male judicial respondents were more active in state and local parties than female judicial respondents (Schlozman, Burns and Verba 1999). There were also some differences between the groups in the setting in which they practiced law. Male judicial respondents practiced in firms of nine or fewer attorneys more often than female judicial respondents, while female judicial respondents were more often in firms larger than 31.

Male judicial respondents were often more dissatisfied with the practice of law than female judicial respondents.

In terms of demographic characteristics, male judicial respondents were not surprisingly older than female judicial respondents. Female judicial respondents more often graduated from a Texas high school and had children living at home (most likely a function of their lower age, generally speaking). There were also differences between groups in partisan affiliation and some substantial differences appeared in marital status and race; female judicial respondents were more often married and more often from racial minorities than male judicial respondents. Finally, female judicial respondents were somewhat more liberal than male judicial respondents.

Table 4.2 shows the differences between male and female attorneys in their responses to the survey questions. The number of attorneys responding to the first two

83 sets of questions was included to show that all results for those two sets should be interpreted with caution, given the small number of cases in each subgroup. Among female legal respondents, those who sought a judicial position were more likely to have served in that position than their male counterparts. The same is true for political positions not on the general trial or appellate courts. Men were more often appointed to a position on the general trial or appellate court while women were more often elected. For non-judicial positions, women were appointed more while men were elected more. Male legal respondents were more often encouraged to run for judge than female legal respondents.

Male attorneys responding to the survey were more active in all levels of the party than female attorney respondents. There were also some significant differences in the practice settings between groups. Female attorney respondents were more often house counsel or in government than their male counterparts while male attorneys were more often in solo practice. Female attorneys were also more dissatisfied with their practice and firm.

The gap in age between male attorneys and female attorneys is fairly comparable to the gap between male and female judges, again not surprising given that women are typically newer to the legal profession. Unlike the judges, male attorneys graduated from

Texas high schools more often than female attorneys. Also unlike the judges, there were significant differences between male and female attorneys in partisanship—female attorneys were more often Republican and male attorneys were more often Democratic.

Male attorneys were more often married while female attorneys were more often

84 divorced or single than male counterparts. While female attorneys were more representative of other racial groups than male attorneys, the numbers were not as significant as the representation of minority groups among female judicial respondents.

Finally, female attorneys were more ideologically liberal than male attorneys.

Aside from the differences between women and men within survey groups, there are also some interesting differences between survey groups, that is, between attorneys and judges. For example, when comparing encouragement of judges and attorneys, it is clear that judges were more likely to be encouraged to run for the bench than attorneys.

Judges were almost always more active in the parties than attorneys. Judges graduated more often from Texas law schools. Responses by judges also showed less variation in practice setting than attorney respondents. Judges identified more often with the two major parties. Judges were also less likely than attorneys to identify themselves as liberal.

Overall, while there is a great deal of variation in responses between female and male respondents, both among attorneys and judges and between attorneys and judges, there do not appear to be any alarming differences in response patterns that would suggest the responses are not representative of the larger population. The differences on a number of characteristics are, however, interesting enough to suggest that there may, indeed, be informal requirements for attaining a seat on the Texas judiciary. While the bivariate results are suggestive of such a potential impact, the relevant characteristics can only be determined by controlling for the influence of all other factors. It is, therefore, appropriate to begin a multivariate analysis of the responses of male and female judges

85 and attorneys to better understand the variation in representation between groups and the informal requirements affecting the likelihood of becoming a judge.

4.7 Multivariate Survey Analysis of Informal Requirements

There are several different multivariate models that can be used to parse out the relationship of the independent variables to the process of becoming a judge. Some studies using survey data look at the emergence of candidates from a pool of potential candidates, typically looking at the individual level characteristics that increase one’s likelihood of attaining the office or looking at ambition for such an office (see, for example, Fox and Lawless 2004; Fox, Lawless, and Feeley 2001; Sanbonmatsu 2002;

Maisel, Stone, and Maestas 1997). Ultimately, for purposes of this research, there are two groups of interest in this study, attorneys and lawyers, as well as an important characteristic of the subjects, gender. The importance of occupation and gender create four groups of study, female judges, female lawyers, male judges, and male lawyers, all of which are potentially interesting subjects of analysis, and all of which could have different experiences with respect to the judiciary. Thus, while it is important to understand the determinants of becoming a judge at the individual level, such a model is only the beginning of the analysis. After looking at the individual level characteristics that increase the likelihood of becoming a judge, it is important to move into an examination of the differences between male and female attorneys in their perceptions of the judiciary, as well as their ambition. From there, the analysis can determine if the differences between groups disappear when looking at male and female judges.

4.8 Hypotheses for Survey Analysis

Past studies examining the likelihood of attaining some elected office found that there are specific individual level characteristics that increase one’s likelihood of becoming a judge. Consistent with those past findings, I developed a series of hypotheses related to characteristics and their effect on the likelihood of being a judge.

Before I can examine the effects of these characteristics, however, I need to control for the formal rules that affect this likelihood. While selection system has been found to affect the likelihood of becoming a judge, here the variable is constant; all individuals run for the judiciary under a system of partisan judicial elections. Region, while not significant in the earlier analysis, is also constant; all potential candidates run for judge in the state of Texas. Likewise, all potential candidates run for judge in a state where the governor has the power to make interim appointments, so while the variable has not been significant, it is still held constant across this model. Therefore, the only formal criterion that remains is the number of years the individual has been practicing. Those who do not meet the formal requirements to be a judge were excluded from the logit model analyzed.

It is possible that there is an additional informal effect for years of practice such that while the state constitution says attorneys must practice for four years to be eligible to hold judicial office, no one wins office with less than 10 years of experience,

87 hypothetically speaking. To control for this potential additional effect, a variable controlling for years of practice has been included in the model.9

Apart from the variable controlling for the years of practice, there are a number of other informal requirements that need to be considered. The first set of characteristics deal with political experience. There are a number of ways in which political experience can be controlled for in the model. I have chosen to include variables controlling for prior experience running for office and activity within the parties at the local, state, or national level.10 Having prior experience will make a potential candidate appear more qualified to hold office, both to the voters and to party elites. Likewise, those who are more active in the parties are more likely to be connected to the resources to run for office, as well as to be on the radar of those recruiting for judicial office.

H1: Prior political experience will increase an individual’s likelihood of becoming a judge.

H1a: Running for prior office will be positively related to becoming a judge.

H1b: Greater amounts of party activity, regardless of whether at the local, state, or national level, will be positively related to becoming a judge

The second set of informal requirements that could potentially affect the likelihood of becoming a judge is ties to the community. Given that this research is

9 A potential problem exists with the measure of years of practice. Judges listed how many years they were practicing before becoming a judge while attorneys listed how many years they have been in practice at the time of filling out the survey. A potential solution would be to create a measure of time in the profession, which for judges would be years practicing plus years on the bench while for attorneys, it would equal years of practice. Because respondents were asked to chronicle their entire career, including any gaps in practice, such a measure cannot be created from the data available. Future extensions of the research would include a question asking respondents to detail their years in a profession, which would have the benefit of determining if women are more likely to have gaps in their careers than their male counterparts. 10 Party activity is measured through an index score, created from responses to three questions about being active in the party at the local, state, and national levels. Factor analysis shows that the responses to all

88 examining attainment of seats on a state judiciary, it is at least plausible that ties to the state would be an important factor in becoming a judge. Not only do greater ties to the community give an individual more opportunities to tap into a judicial pipeline, but they also potentially show voters that the person running for judge knows and even cares for the state and the issues facing it. To measure ties to the community, I have included two dichotomous measures, one measuring if the individual graduated from a Texas high school and the other measuring if the person graduated from a Texas law school.

H2: Ties to the community will increase an individual’s likelihood of becoming a judge.

H2a: Graduating from a Texas high school will be positively related with becoming a state judge.

H2b: Graduating from a Texas law school will be positively related with becoming a state judge.

The third set of informal requirements that could potentially affect likelihood of becoming a judge is demographic characteristics. Included in these requirements are characteristics such as race, gender, ethnicity, marital status, children, and age. Because one could expect that these characteristics may work in different ways, the hypothesis was broken down to show the predicted effect of each characteristic on the likelihood of becoming a judge. The descriptive look at the judiciary leads to the expectation that being a member of racial or ethnic minority, as well as being a woman, would be negatively related to being a judge. While those who are married would appear more stable to voters or those appointing judges and thus more likely to be a judge, those with

three questions are tapping the same underlying dimension. Thus, activity was measured as a composite score ranging from 0 to 9, effectively weighing all three levels of activity the same.

89 children under the age of five would be less likely to be a judge due to the time constraints placed on those with young children. Finally, those who are older are more likely to be a judge because they would appear, prima facie, to have more experience, making them more qualified for the judiciary (especially given the low information nature of state judicial elections).

H3: Demographic characteristics will affect a person’s likelihood of becoming a judge.

H3a: Members of minority groups are less likely to become judges.

H3b: Women are less likely to become judges.

H3c: People who are married are more likely to become judges.

H3d: People with children under the age of five are less likely to become judges.

H3e: Age will be positively related to becoming a judge. 11

The final set of hypotheses are political factors that can affect an individual’s likelihood of becoming a judge. Included in these factors are the individual’s party affiliation, ideology, and a measure of encouragement to join the judiciary. Again, because the variables would be expected to affect the likelihood in different ways, the general hypothesis is non-directional, while the sub-hypotheses are directional. One would expect that, in a state where the Republican Party swept statewide office in 2002, being a member of that party would increase an individual’s likelihood of being a judge in that state. Likewise, given the conservative nature of politics in the state of Texas, the

11 A squared term for years of practice and age were included in a separate model (not included here) to test for a possible nonlinear relationship. In neither case were the variables of the opposite sign, indicating the relationship was nonlinear. For the sake of easier interpretation, the squared term was excluded in the results presented here.

90 more conservative an individual, the more likely they are to be a judge. Finally, encouragement and recruitment have been shown by past studies of candidate emergence to increase the likelihood not only that a person will run, but also that they will hold public office (see, for example, Fox and Lawless 2004). Based on the findings of these past studies, it is reasonable to expect that encouragement to join the judiciary will be positively correlated with being a judge.

H4: Political factors will affect a person’s likelihood of becoming a judge.

H4a: Being a member of the Republican Party will be positively related to being a judge.

H4b: The more conservative a person is ideologically, the more likely he or she is to become a judge.

H4c: Being encouraged to become a judge will make an individual more likely to be a judge.

4.9 Results

To explore the characteristics that make people more likely to become judges, I ran a rare events logit model predicting likelihood of becoming a judge. The rare events model is appropriate for data coming from an unbalanced sample (King and Zeng 2001;

Tomz, King, and Zeng 1999). The dependent variable for my project is binary. There are 515 ones to 61,197 zeros in the population, a ratio of about one judge for every 119 lawyers. Running binary logit on such data would lead to biased estimates of the probability of an event and would be considerably time consuming. Rare events models allow the researcher to sample from the nonevents, saving considerable effort while being as informative a model as it would be with the additional work. The model corrects the

91 estimates to adjust for the unbalanced data. To make the adjustment, I weighted the survey responses by the probability of being sampled.12 Each of the groups had a different probability of being sampled and a variable was created to adjust for the different sampling. The value of the variable is the reciprocal of the response rate. By using the probability of being sampled to weight the estimates, I am able to correct for different sampling of the groups and to correct the unbalanced nature of the data. Robust standard errors were calculated in the procedure. Additionally, because listwise deletion would have excluded 94 cases due to item non-response, AMELIA was used to impute missing values of the data (King et al. 2001). Five separate AMELIA datasets were combined to make a dataset of average observations; the analysis below shows the rare events logit results for this newly created dataset.13 Of the 528 survey responses, roughly

34 were excluded from the analysis because the individual did not meet the years of practice requirement to become a judge in the state of Texas. The results of the rare events logit models are listed in Table 4.3.

The results displayed in Table 4.3 show the effects of individual level characteristics on the likelihood of becoming a judge. The table shows support for all four hypotheses. Political experience such as party activity, ties to the community such as where one went to high school or law school, as well as a number of descriptive characteristics and political factors, appear to affect the likelihood that a person becomes

12 Due to survey non-response, I neither have all of the events (judges) in my sample nor responses from my entire sample of non-events (lawyers). While it would be ideal to have all, it is not possible. The weight correction used in the model adjusted what I have in the sample, given non-response, to what would be in the true population. I simply created a variable, called weights, that differed in value by the sample and included that variable as the probability weight in the estimation.

92 a judge in the state of Texas. The coefficient on gender is significant and in a negative direction, suggesting that women are less likely to be a judge. The results would seem to contradict the aggregate level research in Chapter 3, as well as the descriptive numbers, which suggests that women attain seats at the same rate as their male counterparts given their representation in the pool of potential judges. The unusual result could be driven by a baseline model of people who have unique characteristics such as not graduating from a

Texas high school or law school and being political Independents. Alternatively, the model could be masking a more unique process. Given that the model is of individual level characteristics, it is important to consider the potential for an interactive effect between gender and other characteristics on becoming a judge before concluding gender, by itself, is explaining representation. 14 In an attempt to better understand the individual level process of becoming a judge, a second model including interaction terms for gender and a number of the individual level characteristics was estimated.

The results displayed in Table 4.4 show the effects of the individual level characteristics, as well as the effects of interacting characteristics with gender. Part of understanding the impact of individual level characteristics is knowing if they affect the chances of men and women being a judge differently. It is possible that women with children under five are less likely to be a judge than their male counterparts, even when those men have children, simply because women are more likely to be primary care givers. However, to know this information, a model with interaction terms must be

13 Because of the combination of the rare events model and the AMELIA software, I was unable to use either the post-estimation commands for rare events models or CLARIFY.

93 estimated. The model in Table 4.4 shows support for all four hypotheses again. The number of years practicing law is negatively related to being a judge, suggesting that the further one is in a legal career, the less likely one is to be a judge. Both measures of political experience increase one’s likelihood of being a judge. Additionally, many of the demographic characteristics appear to affect one’s likelihood of becoming a judge. Most interestingly, gender is now positive but not significant. The change in the results between models suggests that being a woman, alone, does not influence one’s likelihood of being a judge, but instead, being a woman with specific characteristics does have an effect. To better understand the interactive impact, as well as the impact of the variables for men, predicted probabilities need to be estimated for the model.15

Table 4.5 explores the impact of the variables for the rare events logit model by gender. With 21 variables and almost 500 cases, the probabilities should be interpreted with some caution. Extending the survey to increase the number of observations would certainly strengthen the results. That said, the coefficients in the model did not appear to be wildly off base, suggesting that the model is fairly robust. Overall, the baseline predictions for male and female attorneys are not that different.16 Men in this baseline category had a predicted probability of 0.0141 while women were a slightly higher

0.0156. Comparing the predictions for each variable by gender produces results that are

14 Ideally other interaction terms would be included in the model, such as considering the effects of marriage and family on becoming a judge. However, because of the number of cases and variables considering these other interactions will have to be left to future research. 15 All predicted probabilities were estimated using Excel. 16 The baseline categories are for attorneys practicing for 16 years, who never ran for a prior office, had a party activity score of 2 (meaning they were somewhat active in one party or not too active in two levels of the party), was not encouraged to run for judge, was age 49, had no children under 5, was a political Independent, was married, was white, and was an ideological moderate.

94 perhaps even more interesting than the individual probabilities are, themselves. For example, men and women who have been practicing law for 25 years both have a very small chance of being a judge (.0005 and .0006 respectively). However, men who have been practicing for only 5 years (just above the Texas minimum years of practice requirement) have a slightly higher probability to be a judge than their female counterparts (.4716 for men and .4495 for women). Thus, while these new male attorneys are 33 times as likely to be a judge as those with the average 16 years of experience, new female attorneys have a slightly lower probability. The probabilities suggest that people reach a point in their careers when they are no longer considered to be viable candidates for the judiciary, and that the point is earlier in a career rather than later.17

While there is support for the hypothesis that prior political experience affects one’s likelihood of being a judge, the effect appears to differ by gender. Female attorneys who have run for prior office are significantly less likely to be a judge than men with the same political background. In fact, male attorneys who ran for a prior office have a prediction of .1012 while women have a prediction of .0123, meaning that men with prior experience running for office are over eight times as likely to be a judge as similarly situated women. Likewise, party activity also appears to have a differential effect for women and men. Women who are not active in any level of the party have a slightly higher probability to be a judge than men. Conversely, men who are the most

17 As stated above, it is possible that the measure of years of practice is driving the result, and the effect of age would support the traditional finding that the further one is in a career the more likely a person is to be a judge. Future analysis will take into account a more accurate measure of years of practice.

95 active in all levels of the party are almost four times as likely to be a judge as women with the same level of party activity. Thus, while women do not face the same penalty for not being active in the parties (in fact, their probability sees almost no change), they also do not receive the same benefit from being very active in all levels of the party.

Ties to the community, a hypothesis supported by the model, also appears to differ in impact by gender. While both men and women have a lower probability to be a judge without graduating from a Texas high school or a Texas law school, the effect differs by gender. Men who do not graduate from a Texas high school are twelve times as likely to be a judge as women who did not graduate from a Texas high school. On the other hand, women who do not graduate from a Texas law school are over three times as likely to be a judge as men who did not graduate from a Texas law school. The results suggest that while ties to a community are important for being a judge in Texas, the impact of ties differ significantly by gender.

Demographic characteristics, while affecting one’s likelihood of being a judge, also appear to differ in their impact by gender. Age appears to have an interesting impact for women and men, as members of both genders have a higher probability to be judges the older they are and a lower probability to be judges the younger they are. Surprisingly, however, there is a substantial differential effect for having children under the age of five.

Women with children under the age of five are an overwhelming 45 times as likely to be a judge as men with young children. While both groups have a lower probability to be a judge than those without young children, the direction of the impact is very surprising.

96 Many past studies would suggest that women with young children would be the least likely group (see for example, Fox and Lawless 2004) to be in public office.

Finally, political factors appear to affect being a judge. Women who were not encouraged to run for judge, while having a lower probability to be a judge than women who were encouraged, still have a higher probability to be a judge than men who were not encouraged. In fact, these women who were not encouraged are almost three times as likely to be a judge as men who were not encouraged. Identifying with either of the major parties appears to have almost no effect on being a judge, and the probability does not differ greatly by gender. The finding is interesting given that the system of filling the judiciary is a partisan electoral system. One would think that, given the partisan nature of the elections, identifying with the parties would increase the probability a person was a judge, but here that appears not to be the case. Likewise, while not being married and not being white reduce a person’s likelihood of being a judge, the probabilities are not substantially different by gender. Lastly, ideology appears to differ significantly by gender. Men and women who are very liberal both see a lower probability of being a judge, but of those who are very liberal, women are five times as likely to be a judge as men. Conversely, while being very conservative significantly increases one’s likelihood of being a judge, men who are very conservative are almost four times as likely to be a judge as women who are very conservative.

97 4.10 Implications

The results of this chapter lead to several conclusions. At the most basic level, there are a number of differences not only between women and men, but also between attorneys and judges in terms of their individual level characteristics and experiences.

Male and female judges appear initially to reach the bench in different ways, and they appear to have different experiences in doing so. Male and female attorneys work in different practice settings. Attorneys are less encouraged to run for the judiciary less often than those who become judges. Another difference between attorneys and judges is that judges are more partisan than those in the pool of potential judges. In addition to differences between attorneys and judges, women and men in both groups differ on a number of characteristics such as ideology. Thus, not only are there gender differences between groups, there appear to be some universal gender differences that hold regardless of occupation.

Several other conclusions can be drawn from this initial look at individual level characteristics and their effect on an attorney’s likelihood of being a judge. First, political experience substantially affects one’s likelihood of being a judge. The effect, however, is different when one considers the gender of the person who ran for prior office. Women appear to be less likely to be a judge if they ran for a prior office.

Moreover, women receive less of a benefit from being active in the parties than men do.

Thus, unlike the findings of some of the research on state legislatures, party activity only slightly increases the probability that women move into judicial office. When compared to the impact that party activity has for men, the payoff for women to be involved is far

98 less substantial. The conclusion of the research here is that women’s participation on the judiciary is not necessarily influenced positively by political experience.

In addition to the applicable differences for political experience, attorneys experience different effects for their ties to a community, depending on their gender.

Obviously, not having either tie to a community makes a person significantly less likely to be a judge. However, while being a graduate of a Texas high school is more important for a woman to be a judge, graduating from a Texas law school matters more for men. It is unclear why the effect would differ by the kind tie to the community. Perhaps women need the longer time in the state to build the coalition necessary to launch an effective campaign. Regardless of the reason, one can again conclude that the impact of community ties differs significantly by the gender of the attorney.

A number of the hypotheses regarding demographic characteristics and becoming a judge are also confirmed by the research; surprisingly, though, the impacts of the variables differ again by gender. Women appear to be affected less by having young children. The results for this variable would suggest that the regular hours and benefits of being a judge are more attractive to female attorneys with young children than they are to men. Additionally, it could be the case that the lower salary of being a judge is a greater deterrent for men with young children than it is for women. Unlike having younger children, party, marriage, and race all do not appear to have a substantial effect by gender on being a judge. For example, while those who are married or white are twice as likely to be a judge, the impact does not vary by gender.

99 Like the demographic characteristics affecting representation differently for women and men, the political factors affecting representation also differ by gender.

Women appear to be affected less by the absence of encouragement to run for judge. The results suggest women’s ability to become a judge may be independent of the recruitment for the office, a finding that is contrary to the conclusions of some past research including

Carroll (1994). Ideology, however, does have a disproportionate effect once one considers gender. Men at the ideological extremes have a different probability of being a judge than those who are moderate. While one could make a similar statement about women, the impact is hardly as significant. In fact, one could argue that ideology does not have the effect on women becoming a judge that it does on men.

So, while there is support in the data for all four hypotheses regarding individual characteristics and being a judge, the overwhelming conclusion is that these variables differ in their impact by gender. It is both the case that individual level characteristics such as demographic characteristics, ties to the community, and political experience affect one’s chances of being a judge and that the impacts of these characteristics differ by gender. Therefore, while women and men are equally likely to be a judge in an absolute sense, or by looking at an aggregate level, when they differ in their characteristics, they see a different likelihood of becoming a judge. The results here would suggest, then, that women and men reach the bench through different sets of characteristics, or that they have a different path to the judiciary.

Perhaps more interesting than the conclusion that characteristics differ in their impact by gender is that the differences uncovered by looking at state judicial races are

100 not the same as the gender differences found in research on state legislative candidates.

While the research conducted here is still preliminary, the characteristics that decrease a woman’s likelihood of running for the state legislature, like having small children and recruitment, do not appear to have the same impact on state judicial candidates. Two conclusions can be drawn from these differences. First, it may be the case that the results here are idiosyncratic to the state of Texas. Only future research extending this study to other state courts could determine if it is, in fact, the state chosen that is driving the different results. Alternatively, it is possible that the offices of state legislature and state judge are so different (even in a state where both offices are filled by partisan election systems) that models used to explain women’s representation in state legislatures need to be changed to explain representation on state courts. It is possible that, with future research on women’s representation on state courts, political scientists will need to revise their theories about gender and representation to accommodate explanations for other offices in which women are increasingly participating.

In either case, it is necessary to conduct future research on an individual level to explore women’s representation on state courts and to determine if they, indeed, take a different path to the judiciary even in other states. To further explore this different path, additional research on the process of becoming a judge at the state level is necessary. For example, in addition to the characteristics explored here, one could also examine the differences among women and men in their ambition for the judiciary. It could be the case that even without encouragement women are more likely to already have ambition for the judiciary. Therefore, not being encouraged does not decrease a woman’s

101 likelihood of being a judge in the same way that it does men. It is therefore necessary to consider the possibility that men and women differ in their ambition for the judiciary, a subject explored in Chapter 5.

102

Variable Female Judges Male Judges N=6818 N=167 Current Judicial Position Currently serving on District Court 73% 78% Currently serving on Appellate Court 23% 11% Appointed to current position 34% 41% Elected to current position 64% 57% Average years in position (by group) 7.56 11.02 Have you ever run for or sought appointment to any other judicial office at the district or appellate court level in the state of Texas? Sought position 23% 28% Served in position 46% 48% Appointed to position 67% 44% Elected to position 33% 56% Average years in position (by group) 9.10 6.07 Have you ever run for or sought appointment to any office that was not on a state district or appellate court? Sought position 21% 41% Served in position 11% 74% Appointed to position 57% 23% Elected to position 43% 77% Average years in position (by group) 3.5 6.06