Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women’s Issues?

While the public debate has been framed around empathy, critics have been more broadly

concerned with whether personal relationships affect decisions in any manner, via empathy or other kinds of attachments. However, there has been little theoretical or empirical work addressing the possibility that personal relationships or empathy could affect judicial deci- sion making. Part of the problem is that untangling the causal effect of such relationships is extremely difficult. Due to homophily, people who are like-minded tend to flock together; liberals are more likely to associate with liberals and conservatives with conservatives. Thus, determining whether personal relationships affect judicial decision making is extremely dif- ficult, if not impossible under most circumstances. The judicial politics literature has there- fore focused on ascriptive characteristics such as partisanship (e.g., Sunstein et al., 2006) or race/gender (e.g., Boyd, Epstein and Martin, 2010; Kastellec, 2013) in predicting decision making. However, this overlooks legal and historical scholarship showing that personal rela- tionships and experiences may influence decision making. Despite the difficulties associated with quantitatively evaluating the effect of these kinds of relationships, a robust theory of judicial decision making should take these factors into account.

This paper is the first to provide robust empirical support for the idea personal relationships— as distinct from partisanship, race, or gender—may affect how judges decide cases, and this evidence cannot be explained by jurisprudence alone. We do so by focusing on one kind of personal relationship that historians and journalists have flagged as being particularly trans- formative: having daughters. Not only could parenting daughters cause a judge to change
his or her substantive position (for example, by becoming more progressive on gender is- sues), but it avoids the homophily problem associated with other kinds of relationships. Specifically, once a couple decides to have a child, the sex of that child is outside of that couple’s control, resulting in a natural quasi-experiment (Washington, 2008). Employing a new dataset on federal judges’ families in tandem with a new dataset on nearly one thousand