Implicit Bias in Judicial Performance Evaluations: We Must Do Better Than This

Abstract

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The Ideal Judge: How Implicit Bias Shapes Assessment of State Judges

“…Although our results show gender bias that is not as pervasive as what other studies have found (Burger 2007;Gill et al 2011;Gill 2014;Tomsich and Guy 2012), it is still cause for concern. This is a particularly acute problem given the dearth of women on the bench in Utah.…”

“…Although they do not provide verbatim recommended questions, the guidelines do recommend the use of behavior-based evaluation instruments to "generate more meaningful information about judicial behavior" (American Bar Association 2005, 13). This is where things seem to go wrong (Bernick and Pratto 1995;Elek, Rottman and Cutler 2012;Gill 2014).…”

“…Gender discrimination has traditionally been understood as products of explicit biases driven by conscious motive or intent (Krieger 1995). More recently, scholars have identified the influence of implicit biases on the perception of performance in gender-stereotyped jobs (Gill, Lazos, and Waters 2011;Gill 2014). Male professionals tend not to perceive it (Coontz 1995), but social science research has influenced even the U.S. Supreme Court to recognize the role implicit bias plays in employment decisions 1 .…”

“…The long lag time between the observation and evaluation of the behavior, which in Utah's JPEs is up to six or ten years, can make behavior that is inconsistent with unconscious social stereotypes to be more easily accessible in the brain, leading to a magnification of this information (Barlett 1932). In all, surveys of judicial performance may be even more likely than other performance evaluations to suffer from unconscious gender bias (Gill, Lazos, and Waters 2011;Gill and Retzl 2014;Gill 2014).…”

“…Similar concerns ultimately led the American Bar Association to create a set of guidelines for JPEs. Despite the existence of these guidelines (American Bar Association 2005), scholars still find numerous problems with the design and implementation of modern JPEs (Elek, Rottman, and Cutler 2012;Gill 2014;Sterling 1993).…”