Professors Pat K. Chew and Robert E. Kelley report that the race of a Federal district judge significantly affects the outcome of race discrimination cases.[1]

“[P]laintiffs lost just 54 percent of the time when the judge handling the case was an African-American. Yet plaintiffs lost 81 percent of the time when the judge was Hispanic, 79 percent when the judge was white, and 67 percent of the time when the judge was Asian American.”[2]

            [Another study published in the

Yale Law Journal in 2005 found that discrimination plaintiffs were more than twice as likely to prevail if there was a woman on the Federal appellate panel.]

            These statistics are a strong indication of bias, and may even show prejudice. They could undermine our confidence in Federal court decisions being fair and impartial unless further analysis can demonstrate that the rulings are independent of race.

            The numbers might result from other subjective considerations. Those include the quality of plaintiff’s evidence, the competence of counsel, and how “plaintiff-friendly” a particular circuit happens to be. Further, reversals favoring plaintiffs on appeal could reflect error-correction that is not evident from only examining rulings on the district court level. But I suspect the number of such reversals is small.

            It is widely recognized that discrimination plaintiffs usually lose in Federal court. They lose because they have insufficient evidence, and because covert discrimination is hard to prove. These cases are expensive, especially for litigants who are unemployed. Employers’ attorneys generally have more experience. In addition, they have greater access to evidence and law, and deeper financial resources for hiring statisticians and private investigators. Many circuits reflect a low success rate for this type of case regardless of the judge. On top of existing obstacles, increasing the probability of losing between 13% and 27% depending on the race of the judge is certainly troubling.

            The solution is to substantially increase the proportion of minorities and women on our Federal bench.

[1] Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Washington Law Review 1118 (2009).

[2] “Race & Gender Of Judges Make Enormous Differences In Rulings, Studies Find,” By Edward A. Adams, ABA Journal, February 6, 2010.