Rethinking Feminist Judging

Rethinking Feminist Judging

MICHAEL E. SOLIMINE* SUSAN E. WHEATLEY**

INTRODUCTION

For nearly two centuries no woman served on the United States Supreme Court and very few served on either the lower federal courts or state courts. Today, Sandra Day O’Connor and Ruth Bader Ginsburg are members of the

U.S. Supreme Court, and burgeoning numbers of female judges have joined them on other federal and state courts.1 Contributing to this change, the Clinton administration is appointing unprecedented numbers of women to the lower federal courts.2

The increasing number of female judges, not coincidentally, has been accompanied by questions about whether female judges and female judging are distinctive in some way, and by calls for further increasing the number of female judges. Some writers assert that female judges approach cases and make decisions in ways that their male colleagues are unable or unwilling to do. According to these writers, most if not all female judges engage in contextual analysis, consider a broad range of factors, and tie their decisions less to arbitrary rules than to flexible standards.3 Drawing on these empirical

Copyright © 1995 by Michael E. Solimine & Susan E. Wheatley. All Rights Reserved.

* Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. J.D., 1981, Northwestern University; B.A., 1978, Wright State University.

** Partner, Taft, Stettinius & Hollister, Cincinnati, Ohio. J.D., 1986, Northwestern University; B.A., 1982, Yale University.