Although most states select their judges via merit selection or an appointive process, a number of states choose their trial and appellate judges on the basis of contested elections. Currently, approximately one-half of all state judges reach their state court benches by winning partisan or nonpartisan races. In the 21 states that elect their judges, women with judicial aspirations must be as competitive as men in these elections.Footnote ¹ Specifically, they must finance increasingly expensive judicial campaigns, garner widespread support from influential political elites, and, most importantly, convince voters that they are as capable as men. Do aspiring women judges experience similar barriers or challenges as women running for legislative or executive office?

The story of the women who compete in judicial elections remains largely untold in the scholarly literature. Gender politics and judicial politics are the two subfields of political science that one would expect to take the lead in exploring the impact of gender in judicial campaigns and elections. Yet neither has addressed this issue extensively. Although numerous empirical studies have examined the intricacies of judicial campaigns and judicial elections (Bonneau Reference Bonneau2005a, Reference Bonneau2005b, Reference Bonneau2006, Reference Bonneau2007; Bonneau and Hall Reference Bonneau and Hall2003; Champagne and Cheek Reference Champagne and Cheek1996; Dubois Reference Dubois1980; Hall Reference Gann1992, Reference Gann2001; Hall and Bonneau Reference Gann and Bonneau2006), few have asked whether men and women compete on an equal basis in their pursuit of elective state judgeships (Reid Reference Reid2004). Even important efforts to examine judicial diversity have focused on women who already sit on state courts, rather than on women who compete in state court races (Aloize Reference Aloize1996; Bratton and Spill Reference Bratton and Spill2002; Hurwitz and Lanier Reference Hurwitz and Lanier2003; Williams Reference Williams2007). Similarly, research on women and elections has explored the impact of gender in electing members to Congress, state legislatures, and executive offices (e.g., Berch Reference Berch1996,Reference Berch2004; Burrell Reference Burrell1985, Reference Burrell1994, Reference Burrell, Thomas and Wilcox1998, Reference Burrell2006; Falk and Kenski Reference Falk and Kenski2006; Fox and Oxley Reference Fox and Oxley2003; Herrick Reference Herrick1996; Herrnson and Lucas Reference Herrnson and Lucas2006; Jalalzai Reference Jalalzai2006; Koch Reference Koch2000; McDermott Reference McDermott1998; Melich Reference Melich2005; Palmer and Simon Reference Palmer and Simon2006; Sanbonmatsu Reference Sanbonmatsu2002a, Reference Sanbonmatsu, Carroll and L.2006b), but, oddly, has failed to examine how or if gender also affects judicial elections.

Women in Judicial Elections: Does Gender Matter?

Although certain regression models have been instrumental for understanding the intricacies of state court elections, they also might have had the unintended consequence of stifling research on women who compete in those races. The regression findings have suggested that women face little or no discrimination and that gender has a minimal effect in the judicial electoral process. These regression models draw upon a substantial number of independent variables that are designed to identify those factors that correlate in a statistically significant way with such dependent variables as candidates' vote percentage or candidates' reported contribution or spending totals. In these models, gender or “being a woman” is often included as one of several other independent variables. Its relevance in affecting candidates' money or votes is noted only if it is more significant than other included independent variables, such as citizen ideology, incumbency, partisanship, electoral competition, and election system. When being a woman fails to correlate significantly with the dependent variable, the reported finding is that it has little or no bearing on electoral outcomes, and, thus, gender becomes an unimportant factor in state court races (Bonneau Reference Bonneau2007; Hall Reference Gann2001).Footnote ²

This regression model may fail to reveal the realities confronting women judicial candidates and intimate that women face no disadvantages in judicial races. Examining gender as one among several independent variables may downplay important differences experienced by men and women when they vie for state judgeships. Indeed, Richard Fox and Jennifer Lawless (Reference Fox and Lawless2004) recommended a new approach in assessing the effects of gender in the electoral process. They argued that “end-stage assessments (money and votes) may show that men and women performed similarly, but not highlight gender differences within the electoral environment” (2004, 265, 275). Rather than revealing whether gender, as Barbara Burrell noted, “emerge[d] as a significant explanatory factor … regarding who gets elected” (2006, 359), it is equally important to compare how men and women participate at all stages and in all aspects of the electoral process.

A different methodology produces less rosy findings. When I run regression analyses on men and women candidates separately, different variables are statistically significant, suggesting that gender does affect judicial candidates' ability to raise money and win votes. The results suggest that different forces within the electoral environment affect the campaigns of men and women and, in particular, that women must overcome specific challenges (e.g., Lawless Reference Lawless2009). In other words, men have advantages that women do not have, and women encounter difficulties that men do not face. For example, their status as incumbents helps men in funding their campaigns, whereas women incumbents receive no similar benefit. Incumbency correlates in a statistically significant way with men's campaign contributions. In contrast, it has no statistically significant effect on the contributions reported by women. Also, campaign spending (beyond a certain level) has less impact on women's vote shares than on men's.Footnote ³

These findings also support shifting our focus from using aggregate analysis exclusively to one that combines aggregate results with comparative case studies or individualized analysis (Williams Reference Williams2007). Additionally, comparing how men and women participate at different stages of the electoral process is revealing. For example, although female incumbents and male incumbents keep their seats on state supreme courts at a similar rate, women judges are more likely to face challenges to their retention than are their male counterparts. The overall retention rate for judicial incumbents facing reelection between 1998 and 2006 masks the fact that women had to work harder in the judicial electoral system than did menFootnote ⁴ (Lawless and Pearson Reference Lawless and Pearson2008).

In addition, the gender politics literature complements and contributes to efforts to explore how women fare in state court elections. Researchers on women and elections have examined women candidates, political actors within the electoral system, and voters in order to explain the continuing underrepresentation of women in Congress and state legislatures. Their findings are useful for exploring whether women's ascension to the bench is more difficult than men's because they face different and harsher electoral challenges than do men. Two examples are illustrative.

Like the research on women and elections, the study of women judicial candidates also asks whether the women who seek elective judgeships have been strong or weak candidates. The focus on women who participate in these elections highlights important differences between women judicial candidates and their counterparts who run for legislative or executive office. Women in congressional races tend to be very strong (quality) candidates with impressive backgrounds and professional experiences. Arguably, their distinguished credentials may offset voters' skepticism about their competence to perform the responsibilities of elected office (Huddy and Carey Reference Huddy and Carey2009; Lawless Reference Lawless2009). The result is that women have to be better than men in order to achieve similar electoral outcomes. For women who aspire to be judges, state eligibility requirements might extend a certain amount of credibility to them. States mandate that judges meet specific educational standards and professional experiences. Unlike the simple age and residency requirements to become a legislator, judicial candidates must meet professional standards, which could suggest to voters that men and women are equally competent to serve as state judges.

Voters, however, are not treating men and women candidates with similar credentials the same. Women who ran in the state supreme court elections between 1996 and 2006 were clearly “quality” candidates. In the judicial politics research, judicial experience (or serving as a trial or appellate judge) is used as an indicator of candidate quality.Footnote ⁵ A higher percentage of the women who ran in these races had served or were currently serving as state judges than had male candidates.Footnote ⁶ What is most interesting about these elections is that having trial or appellate court experiences helped men in convincing voters to support them. In contrast, women received no similar electoral boost.Footnote ⁷

A closer comparison of the men and women who ran for open state supreme court seats during this 10-year period further reveals additional gender differences. Less than 60% of the men had judicial experience, while 83% of the women were either current state court judges or had been a trial or appellate court judge. Women raised substantially more money than men, and men, as a group, spent about 70% less on their campaigns than did their female counterparts. Yet only 1.4% separated their mean shares of the vote. Even having stronger credentials and more money, women were unable to parlay electoral assets into sizable electoral gains. If these races are characteristic of judicial elections, like the counterparts running for Congress, women who compete for elective judgeships must be better candidates than men in order to achieve similar electoral results (Reid Reference Reid2004).

Furthermore, the role of political parties in the electoral process highlights not only gender differences between men and women in judicial elections but also differences between judicial elections and other elections. An emerging consensus among gender politics scholars is that women accrue electoral benefits by affiliating or associating with state political parties (Dolan Reference Dolan2004; Palmer and Simon Reference Palmer and Simon2006; Sanbonmatsu Reference Sanbonmatsu2002b; Reference Sanbonmatsu2006a). For voters, party seems to be a stronger voting cue than gender. However, the role of political parties in judicial elections is more varied than it is in legislative or executive elections.Footnote ⁸ Among states that elect judges, 15 out of 21 use nonpartisan elections where, at a minimum, the party affiliation of candidates is removed from the ballot.Footnote ⁹ Given that state court races tend to be low-information races, voters will likely be unaware of the party affiliation of judicial candidates and, thus, might be inclined to draw upon sex stereotypes or gender generalizations as the basis for selecting between judicial candidates (Green Reference Green2003; Koch Reference Koch2000; McDermott Reference McDermott1997, Reference McDermott1998; Sanbonmatsu Reference Sanbonmatsu2002a). Absent the party cue on nonpartisan ballots, women who compete in nonpartisan judicial races may have to contend with voters applying gender-specific decision rules that might not be applied to men in nonpartisan contests.Footnote ¹⁰

It is interesting to note that women who compete in partisan judicial races may not be able to count on party leaders to support their campaigns fully. Over a 10-year period between 1996 and 2006, women competing in partisan supreme court races received less money for their general election campaigns from party leaders and party organizations than did their male counterparts. On average, 11% of women's total contributions came from party coffers, while party contributions to men amounted to approximately 22% of their total receipts. Party leaders, at least in these races, tended to favor male candidates over female candidates.

The prevailing research on judicial elections, women and elections, and campaigns and elections complicates questions about the impact of gender in judicial elections. Numerous studies have explored the mechanics and politics of judicial elections, while others have asked and tried to answer why women are underrepresented in legislative chambers at the state and national levels. These efforts demonstrate that tracking won/lost records does not present a complete picture of how women compete for elective state judgeships. Indeed, many facets of the electoral process affect women and men differently and, therefore, need further investigation. The media may treat women judicial candidates differently than men, as they do legislative candidates, and implicit gender appeals such as “soft on crime” may be at work. We need additional scholarship in this area because women judicial candidates do not function in a gender-neutral electoral environment. Just like the women who seek seats in the U.S. Congress and in state legislatures, women with judicial aspirations also recognize that just being a woman affects their quest to become state court judges.

Final Comments

Methodological challenges frustrate efforts to explore how women fare in judicial elections. The small number of state court elections occurring every election cycle and the small number of women who participate in these races (Jensen and Martinek Reference Jensen and Martinek2008; Williams Reference Williams2008) make the study of women judicial candidates difficult. Furthermore, institutional differences that distinguish state judiciaries and legal communities also create problems for researchers. Unlike congressional elections, which are relatively uniform, state courts are marked by the many differences that separate them. We need a variety of research approaches (empirical studies, case studies, etc.) to assess how competitive women are in partisan elections and nonpartisan elections, in the election of trial judges and appellate judges, and in statewide or district races.

Despite these challenges, it is important to build upon the existing research on women in judicial elections. As women comprise an increasing percentage of law students and attorneys, judgeships should be as accessible to women as they have always been to men. A judiciary that reflects the diversity of American society strengthens public acceptance of judicial decisions, as well as offering the possibility of enriching the quality of those decisions.