Judging Women Judges

Stephen J. Choi, G. Mitu Gulati,  Mirya R. Holman, and Eric A. Posner have a new article up on ssrn, "Judging Women."  Here's their abstract:

Judge Sonia Sotomayor’s assertion that female judges might be “better” than male judges has generated accusations of sexism and potential bias. An equally controversial claim is that male judges are better than female judges because the latter have benefited from affirmative action. These claims are susceptible to empirical analysis. Primarily using a dataset of all the state high court judges in 1998-2000, we estimate three measures of judicial output: opinion production, outside state citations, and co-partisan disagreements. We find that the male and female judges perform at about the same level. Roughly similar findings show up in data from the U.S. Court of Appeals and the federal district courts. 

I saw an earlier version of this this summer and it (no surprise) generated a ton of discussion.  One conclusion I took away from this is that the quality of judging (as measured by the measures here) is pretty even across courts.  I'm not sure what that says about judges' quality or the measures that Choi et alia employ to measure quality.

But this also makes think that there's some application for these methods in legal history.  Take the Jacksonian era, for instance.  The conventional wisdom is that Whigs were better lawyers, treatise writers, and judges than were Democrats.  (Of course, this conventional wisdom comes to us largely through Whig writers -- like Kent and Story!)  To put a blunt point on this, we think of Andrew Jackson as a president who did what he wanted and ignored the law.  So I wonder if we applied these sorts of measures, would we find that Whigs were "better" judges--did they write more and longer opinions than Democrats, were they cited more than Democrats outside their jurisdiction, and were there more disagreements between Whigs than Democrats?  I'm not sure what we'd find.  One thing that I'd also be interested in, is a measure of judges' "aspirations."  How often did they look to treatise and more general evidence (like treatises on history and economics) to bolster their opinions?

As with everything those folks do, I'm sure it'll generate a lot of attention.