What does it take to get an “A+” as a judge in Colorado?
Research shows it helps to be male.
The Colorado Judicial Review Commission does what individual citizens cannot – analyze the performance of judges over time to determine their effectiveness. They issue reports, both interim and in election years, with recommendations to voters whether the judge, either at the district or county court level, should be retained in office.
One part of the review is a survey given to attorneys who have presented cases before the judges and to nonattorneys, such as jurors and witnesses who have appeared in their courtrooms. Judges are graded in the categories of case management, application and knowledge of the law, communications, demeanor and diligence.
In August, the 6th Judicial District Review Commission recommended retention of both District Court Judge Suzanne F. Carlson and La Plata County Judge Martha Tinsley Minot. But the commission gave both of them below-average marks, driven primarily by low grades from attorneys.
“I have had professional contact with both these woman more than 10 years ago and found them admirable,” Bayfield resident and mediator Dawn Farrington said after The Durango Herald reported the scores when the reviews were released. “In order to rule out gender bias in the assessments, I would ask that you explore the data further to see how Judges Carlson and Minot compare with other female judges in Colorado up for retention votes in the coming election.”
The median grade from attorneys for all judges sitting for retention was 83.4 percent, with an average grade of 81.7 percent.
Carlson received a 70.5 percent from attorneys and an 85.5 percent from nonattorneys. Seventy-nine percent of attorneys recommended she be retained in office, and 4 percent had no recommendation.
Minot received a 74.8 percent from attorneys, with an 88.8 percent grade from nonattorneys. Seventy-two percent of attorneys recommended she be retained in office, with 14 percent making no recommendation.
Carlson and Minot are not allowed to discuss the reviews until after the election because ethics rules forbid judges from campaigning. Kent Wagner, the executive director of the Colorado Judicial Review Commission, said the prohibition is meant to eliminate any appearance of partisanship or favoritism.
An analysis of the 142 reviews issued in August – 93 male judges and 49 female – showed that attorneys consistently graded female judges lower than male judges and more harshly than the public did:
Eight of the 10 lowest-ranked judges were women, even though there are almost twice as many male judges in the reviewed group.
Only two of the 10 highest-ranked judges were women.
Thirty-two women were ranked in the lower 50 percentile, and 39 men join them with that ranking. By contrast, only 17 women judges are in the top 50 percent of rankings, while 54 men are in the top 50 percent.
Overall, attorneys graded female judges an average of 5.5 points lower than male judges.
Female judges at the county judge level averaged grades 8.1 points lower than male judges. At the district court level, female judges were graded an average of two points lower.
How does implicit bias work?
The reason for the lower grades may be attributed to implicit bias.
The Implicit Association Test was originally developed at Harvard University and measures unconscious attitudes about gender, race, ethnicity, age, sexuality, religion, disabilities and nationality.
“The IAT shows biases that are not endorsed and that even may be contradictory to what one consciously believes,” said the organizers at Project Implicit, which has developed several versions. “We would not say such people are prejudiced. It is important to know, however, that implicit biases can predict behavior.”
No research was available on implicit bias when it comes to rating judges, but significant work has been done on how it works in the science, technology, engineering and math fields, which can be illustrative in understanding how it works.
“Even though I have a background in engineering, and I now spend much of my time writing, thinking and talking about women in science,” said Christi Corbett, a researcher with the American Association of University Women, “my IAT results show that I still have a moderately strong implicit association of ‘science’ with ‘male.’”
How do we counter implicit biases?
AAUW has created a list of actions to combat implicit bias after people take the IAT:
Admit you have those biases.
Keep them in mind, slowing down and recognizing where they might be coming into play: “Are your ‘gut feelings’ about job candidates valid or the product of biases?” its checklist asks. “Are you discounting what a colleague is saying because of your biases? Educators, are biases affecting how you teach, advise and evaluate students? Parents, are you sending different messages to your sons and daughters?”
Expose yourself to different experiences because stepping out of your comfort zone may help you better understand people who are different than you are and how stereotypes came to be.
In the meantime, Colorado attorneys may need to keep implicit bias in mind when judging the judges.
Will the Colorado Commission on Judicial Performance make any changes in its survey process to balance implicit bias responses?
“The state commission continuously looks at the rules and improving the system,” Wagner said. “We look at changing the survey, more training for the commissioners, seeing how we handle evaluations and narratives. We’ll be talking about it at our meeting next month.”
email@example.com. City Editor Shane Benjamin performed the data analysis for this story.