How Gender Bias Impacts Female Judicial Candidates in Texas
Tags: Elections, Judiciary, Gender Equality, Texas

Photo by Bill Oxford on Unsplash

In the state of Texas, women are underrepresented in the legal profession. While women make up half of the Texas population, only 37% of practicing State Bar attorneys in Texas were female in 2019. This is not unusual for our state — the gender demographics of attorneys mirror the national proportion of 38%. But while women are underrepresented in the population of attorneys, they reflect the population proportion of women in Texas’ judicial elections, making up 49% of candidates to the Texas Supreme Court, the Texas Court of Appeals, and the Texas Court of Criminal Appeals in 2020. This begs the question — what is the reason for the overrepresentation of women as judicial candidates when compared to the overall attorney population?¹

The process of becoming a judge in Texas might hold a clue. To become a judge, a candidate competes in partisan primary and general elections voted on by the public. Texas is one of only 18 states that hold partisan elections, and our election system means that voters, not governors or legislators, get to choose their judges. When people are allowed to vote on their candidates, biases, especially towards gender, naturally come into play. My analysis shows that partisan judicial elections in Texas are one factor that could contribute to the rise of female judicial candidates while the proportion of female attorneys remains low.

As shown in Figure 1, the rise of women judicial candidates has fast outpaced the rise of female attorneys. In 2006, women made up 30% of both judicial candidates and attorneys as a whole. However, in 2020, women made up 39% of attorneys and 49% of judicial candidates. When you break the data down by political party, the rise of female candidates becomes even more apparent. As shown in Figure 2, Republican judicial candidates have remained, on average, 30% female, with no overall rise in the proportion of women Republican candidates. On the other hand, female Democratic judicial candidates have experienced a drastic rise, with the proportion increasing from 40% in 2006 to 90% in 2020. While women are underrepresented as Republican judicial candidates, resembling the true proportion of female attorneys, women are drastically overrepresented as Democratic judicial candidates. Figure 2 shows that the rise of women as judicial candidates in Texas can be attributed mainly to the rise of women judicial candidates in the Democratic party, a phenomenon allowed by Texas’ process of partisan judicial elections.

Figure 1 — The rise in female judicial candidates vs. the rise in female attorneys

Figure 2 — The rise in Democratic female judicial candidates vs Republican female judicial candidates

When you break down the data for candidates in the Democratic party even further, it is clear that Democratic voters in Texas are choosing female candidates over male ones. This pattern can be seen in the judicial primaries, where the electorate is mostly voters who identify as Democrats. Since 2006, there have been 19 gender-split judicial primaries in the Democratic party, meaning that a female candidate competed against one or more male candidates for the Democratic nomination. In every instance, the female candidate beat the male candidate to become the Democratic candidate in the general election, as shown in Figure 3.

Figure 3 — Gender-split judicial primaries won by women

This phenomenon fits with an observed trend in political elections — in low-information elections, Democratic voters prefer the female candidate over the male candidate. Texas judicial elections are certainly low-information; most voters are unfamiliar with the candidates and don’t know enough about their background to make informed voting decisions. As a result, voters use informational cues they can find on their ballot, often including gender. Former Texas Court of Criminal Appeals judge Elsa Alcala commented on this trend after the judicial primaries in 2020, stating, “Maybe (voters) knew nothing, maybe they knew that (the candidates) were both equal, but all things being equal, they went with the woman. People are voting based on some characteristic that’s apparent from the ballot as compared to knowing who these people really are.” While more representation of women as judicial candidates is a positive outcome on its surface, it does not always lead to the best candidate winning the election.

The female judicial candidate advantage occured in one extreme instance in the 2020 Democratic primary for the 353rd Civil District Court, located in Travis County. Incumbent Tim Sulak competed against challenger Madeleine Connor, a lawyer who “earned no political endorsements, raised next to no money, was sanctioned by two Austin courts for filing harassing lawsuits — and admits she is not a Democrat.” In a stunning upset, Connor defeated Sulak with 50.5% of the vote, a result that many in the legal community attributed to her gender. In Texas, Democratic voters choose female judicial candidates over male ones across the board, and experts agree that liberal voters are more likely to choose the woman over the man when presented with two unfamiliar names.

While this bias among Democrats is not solely responsible for the rise in female judicial candidates, it is one explanatory reason for why women are equally represented as judicial candidates but underrepresented as attorneys. While it is a good thing that women are no longer underrepresented as candidates, it should be because women have equal opportunity and equal access to the legal profession, not because of voter bias. The data shows that equality in judicial elections does not necessarily mean that women have achieved equality in the legal field, and more needs to be done by law schools and state bar associations to ensure that women have the tools they need to succeed as both attorneys and judges.

¹ In this article, “judicial candidates” and “judicial elections” refer only to the Texas Supreme Court, the Texas Court of Appeals, and the Texas Court of Criminal Appeals.