POLITICS, IDENTITY, AND CLASS CERTIFICATION ON THE U.S. COURTS OF APPEALS.

• Author: Burbank, Stephen B.

This Article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence class certification under Rule 23 of the Federal Rules of Civil Procedure. We find that the ideological composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having dramatically higher rates of procertification outcomes than all-Republican panels--nearly triple in about the past twenty years. We also find that the presence of one African American on a panel, and the presence of two women (but not one), is associated with procertification outcomes.

Our results show that, contrary to conventional wisdom in scholarship on diversity on the Courts of Appeals, the impact of diversity extends beyond conceptions of "women's issues" or "minority issues." The consequences of gender and racial diversity on the bench, through application and elaboration of certification law, radiate widely across the legal landscape, influencing implementation in such areas as consumer, securities, labor and employment, antitrust, insurance, product liability, environmental, and many other areas of law. In considering possible explanations for our findings on the procertification preferences of women and African Americans, we note that class action doctrine, as transsubstantive procedural law, traverses many policy areas. As strategic actors, it would be rational for judges to take into consideration how class-certification doctrine in a case that does not implicate issues on which they have distinctive preferences might affect certification in cases that do. Alternatively, or in addition, our results may be the first evidence that transsubstantive procedural law affecting access to justice is itself a policy domain in which women and African Americans have distinctive preferences. In either case, the results highlight the importance of exploring the effects of diversity on transsubstantive procedural law more generally.

Our findings on gender panel effects in particular are novel in the literature on panel effects and the literature on gender and judging. Past work focusing on substantive antidiscrimination law found that one woman can influence the votes of men in the majority (mirroring what we find with respect to African Americans in class-certification decisions). These results allowed for optimism that the panel structure--which threatens to dilute the influence of underrepresented groups on the bench because they are infrequently in the panel majority--actually facilitates minority influence, whether through deliberation, cue taking, bargaining, or some other mechanism.

Our gender results are quite different and normatively troubling. We observe that women have substantially more procertification preferences based on outcomes when they are in the majority. However, panels with one woman are not more likely to yield procertification outcomes. Panels with women in the majority occur at sharply lower rates than women's percentage of judgeships, and thus certification doctrine underrepresents their preferences relative to their share of judgeships and overrepresents those of male judges.

INTRODUCTION I. PANEL EFFECTS ON THE COURT OF APPEALS II. INSTITUTIONAL STRUCTURE ON THE U.S. COURTS OF APPEALS: THE NORM OF UNANIMITY A. Suppressed Dissent Explanations for the Norm of Unanimity B. Modified Content Explanations for the Norm of Unanimity C. Two Types of Panel Effects III. DATA, MODELS, AND ANALYSIS A. A Descriptive Look at the Data B. Statistical Models 1. Individual-Level Model of Judge Votes 2. Panel-Level Model of Outcomes 3. Panel-Level Model of Judge Votes (as distinguished from Case Outcomes) 4. Discrimination and Other Civil Rights Claims Versus Other Underlying Causes of Action C. Explaining Procertification Preferences and Gender Panel Effects 1. Procertification Preferences 2. Gender Panel Effects CONCLUSION INTRODUCTION

This Article explores the relationship between the ideology, gender, and race of U.S. Court of Appeals judges and decisions addressing class certification under Rule 23 of the Federal Rules of Civil Procedure. Political conflict over federal judicial nominees has become a familiar feature of the American political landscape. Presidents have increasingly come to regard federal judges with aligned preferences as a critical component of the infrastructure for elaborating and implementing their national political and policy agendas. Correspondingly, presidential administrations have paid increasing attention to scrutinizing potential nominees in the hopes of identifying those with preferences most likely to advance administration goals. Political opponents of presidential administrations are, of course, attentive to the same concerns, and it seems that the harder presidents work to nominate ideologically aligned candidates, the harder opponents work to defeat them, often characterizing them as ideological extremists. The focus of this battle extends beyond conventional markers of ideology and encompasses issues of gender and racial diversity, with some critics attacking presidential administrations for staffing the federal courts with judges that fail to reflect the country's diversity

The concern for gender and racial diversity on the federal bench is often tied to issues of representation. Pitkin's classic distinction between descriptive and substantive representation is useful for clarifying two conceptions of representation that are relevant to racial and gender diversity on the bench. (1) An institution of governance is descriptively representative to the extent that it mirrors, in salient respects, the composition of the community that it governs. Substantive representation, in contrast, is concerned with whether governmental actors, in their decision making, actually represent the distinctive preferences or interests of a community that they are associated with. (2)

Advocates of increasing, and scholars studying, the representation of women and members of racial minorities on the bench have long been concerned with both forms of representation. One goal of increasing diversity on the bench is to create a bench that descriptively reflects the country's diversity, which itself can promote the judiciary's appearance of impartiality and enhance its democratic legitimacy. (3) Another purpose concerns legal substance. Some believe that women and members of racial minorities have different preferences that are potentially consequential to case outcomes, and in particular that they are more sensitive than white men to issues of discrimination and inequality in their substantive decision making. (4) The primary reason given for this view is that women and members of racial minorities are more likely to have seen or been subjected to discrimination, and these distinctive life experiences make the judges more likely to believe a plaintiffs evidence of discrimination and to empathize with such plaintiffs. (5)

Debates over gender and racial diversity in federal judicial appointments have escalated in recent years. In the first two years of his administration, Trump's judicial appointments were 92% white and 76% male. (6) One recent study described where this places Trump's appointments in historical context:

Trump has appointed white men in numbers not seen in nearly three decades, reversing a four-decade trend across both Democratic and Republican administrations of increasing the diversity of judges appointed to the federal bench over time. Among Democratic presidents, the share of white males appointed to the bench shrank from 66 percent during Carter's Administration, to 53 percent during Clinton's administration, and they represented a mere 36 percent of Obama's appointees to the bench. Republican presidents have appointed more white males and fewer diverse judges to the bench compared to Democratic presidents. Until now, however, they too evidenced a trend towards greater judicial diversity with the share of white male judges appointed by Reagan at 86 percent, but falling to 73 percent under Bush I and falling yet again under Bush II to 67 percent. Trump has reversed this decade-long trend by appointing approximately 70 percent white male judges to the federal bench. (7) Underpinning battles over the ideological, gender, and racial complexion of the federal courts as it bears on substantive representation is an empirical assumption: the ideology and identity of federal judges matter to how they decide some cases. It is no wonder, then, that the relationship between judge characteristics and judicial decision making is among the largest fields of inquiry in the social scientific study of courts. Scholars have done substantial empirical work on the role of ideology, gender, and race in judicial decision making on the U.S. Courts of Appeals. (8) These studies have focused on salient public law issues, including employment discrimination, sexual harassment, voting rights, environmental law, affirmative action, abortion, capital punishment, campaign finance, and federalism cases, among others.

However, the field has largely ignored procedural law, including class actions. Indeed, we have not been able to find a single empirical Court of Appeals study seeking to evaluate the relationship between these judge characteristics--or any other judge characteristics, or any other variables at all--and decisions on class certification.

This is unfortunate because intuitions about judicial behavior, especially as they relate to diversity, often provide a poor guide to reality. For example, Court of Appeals studies have found no differences in decision making by men and women in abortion and sexual harassment cases, (9) or whites and members of racial minorities in employment discrimination cases, (10) or Republican and Democratic...