Monday, December 11, 2017
Three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment
Heidi Bond's further response provides more details on her allegation.
Bond makes two important suggestions for structural change to address the problem of sexual harassment in judicial clerkships.
I want the law clerk handbook distributed by the judiciary to explicitly state that judges may not compel clerk silence on matters like the ones I have described here. I also believe that there should be a person, or persons, or an institution that clerks can turn to in order to find answers. I understand that there are reasons why no such institution exists now—judicial independence and confidentiality must be fiercely protected. I also believe that the judiciary is capable of coming up with a solution to this problem.
A type of ombuds office within the court administrative office might be a way to implement this.
Bond's additional recommendation:
I want greater honesty regarding judicial clerkships. Law students are often told in glowing terms that a clerkship will be the best year in their career. They are never told that it might, in fact, be their worst—and that if it is their worst, they may be compelled to lie to others in the name of loyalty to their judge.
I also want law schools to start giving our best and brightest students accurate advice about clerkships. Students are often told that if they receive a clerkship offer from a judge, they must say “yes” without hesitation. I cannot imagine a situation more rife for abuse. Students should feel free to say no to any judge who triggers their discomfort for any reason.
However, Nancy Leong counsels against the potential consequences of steering women away from prestigious clerkships.
Further Updates as of Dec. 14:
Dara Purvis, When Judges Prey on Clerks
Vivia Chen, Can We Get Rid of Alex Kozinski?
Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Accomplices
Charlotte Garden, On Judge Kozinski and Open Secrets
Monday, December 4, 2017
Sandra Sperino, Sexual Harassment Cases Often Rejected by the Courts
Many actors, politicians and executives, including at NPR, are now facing sexual-harassment allegations in the court of public opinion.
But in actual courts, such cases filed by workers against their employers are very often dismissed by judges. The standard for harassment under the law is high, and only an estimated 3 percent to 6 percent of the cases ever make it to trial.
That stands in stark contrast to the large pool of people who say they have experienced sexual harassment. In surveys, a quarter to half of women say they've experienced sexual harassment at work. But only a small fraction — estimates range around 5 to 15 percent of women — report their complaints to their employers, largely due to fear of retaliation.
Legal experts say the high dismissal rate of sexual harassment cases also has a chilling effect.
University of Cincinnati professor Sandra Sperino has read roughly 1,000 sexual-harassment cases that were dismissed before they went to trial.
"You'll see case after case where a woman was groped at work and the court will dismiss the case as a matter of law, finding that's not sexual harassment," Sperino says.
In a 1986 decision, the Supreme Court said the behavior needs to be "severe or pervasive" in order to qualify as harassment, whether it's on the basis of sex or race. Sperino says judges' interpretations of what qualifies are out of step with common sense and standard office policies.
Sandra Sperino & Suja Thomas, Boss Grab Your Breasts? That's Not (Legally) Harassment
There remains a sense among Americans that the country’s legal system is well equipped to handle the harassment cases that will likely be brought as more women come forward with accusations, including against celebrities like Matt Lauer and Garrison Keillor. The country has laws protecting people against harassment in the workplace and courts in which those laws are supposed to be enforced. Several high-profile lawsuits — including Gretchen Carlson’s suit against the former Fox News chairman Roger Ailes, which was settled for $20 million — have reinforced this impression.But this notion is misleading. In fact, courts routinely dismiss cases brought by workers who claim their supervisors propositioned them, kissed them or grabbed their breasts. The judges declare that the conduct does not constitute harassment in a legal sense, and refuse to let the cases go to trial. How did we get here?
In the 1986 case Meritor Savings Bank v. Vinson, the Supreme Court held that Title VII of the Civil Rights Act prohibits harassment in the workplace based on sex, race, color, religion or national origin. Today, Meritor is viewed as a landmark case that officially recognized sexual harassment as an impermissible form of discrimination.
But in issuing its judgment, the Supreme Court used the words “severe or pervasive” to describe the level of seriousness that conduct must reach before meeting the legal definition of harassment. Those words are not found in Title VII. Instead they are a judicial interpretation of the statute — and have had lasting consequences.
Some conduct is clearly so serious that it always counts as harassment. For example, a supervisor raping an employee has consistently been viewed as “severe” enough to meet the bar. Supervisors who have subjected workers to sexual epithets and taunting every day for a long enough period meet the standard for “pervasive.” Other conduct, by contrast, is never going to meet the threshold — say, if a supervisor asks an employee out on a date once and does not treat her differently after she declines.
In the early and mid-1990s, the federal courts wrestled with the meaning of the “severe or pervasive” standard, and judges during that period created a very high bar for plaintiffs to meet. Unlike typical workers, these judges had lifelong job security and powerful positions. They also did not have the benefit of deliberating with a large group of people with different experiences as a jury does. These early cases have cast a long shadow, and today, some judges appear to simply be following the standards set by earlier courts. These standards have not aged well.
Monday, November 27, 2017
Symposium on the Jurisprudential Legacy of Judge Constance Baker Motley, the First Black Woman Federal Judge
Symposium in the recent issue of the Columbia Law Review.
Tomiko Brown-Nagin, Identity Matters: The Case of Judge Constance Baker Motley
Judge Denny Chin & Kathy Hirata Chin, Constance Baker Motley, James Meredith, and the University of Mississippi
Judge George B. Daniels* & Rachel Pereira, Equal Protection as a Vehicle for Equal Access and Opportunity: Constance Baker Motley and the Fourteenth Amendment in Education Cases
Judge Raymond J. Lohier, Jr., On Judge Motley and the Second Circuit
Tuesday, November 21, 2017
ABA J, Girls' Courts Under Scrutiny
As courtrooms specializing in girls’ cases crop up around the country, the U.S. Department of Justice is examining whether they actually work.
Since the early 2000s, an estimated 20 specialty girls’ courts have been created nationwide, though these gender-specific courts mean different things in different places. Sometimes it’s simply a docket dedicated to cases for girls. Others specialize in linking young female defendants with social services. There are even courts that hear only sex trafficking cases.
Leading the examination is the Office of Juvenile Justice and Delinquency Prevention’s National Girls Initiative. “The study is a chance to look at where they are, what do they look like and how do we define their effectiveness,” says Jeannette Pai-Espinosa, president of the National Crittenton Foundation in Portland, Oregon, which coordinates the National Girls Initiative with the office.
The major concern is whether these courts are bringing more girls into the system and keeping them in detention and in prison longer or offering alternatives to incarceration.
The researchers are meeting with judges around the country, including Jennifer L. Ching, presiding judge of the Hawaii Girls Court. Established in 2004 as part of the Family Court of the First Circuit in Honolulu, it’s one of the country’s first such courts. It focuses on girls brought in on status charges, such as running away, skipping school or breaking curfew.
“Girls’ court is about the actual court hearings but also about supporting gender-specific, empowering activities,” says Karen Radius, founding judge of the Hawaiian court.
For a related prior post, see Girls' Court
Monday, November 20, 2017
We are seeing an endless parade of new allegations of sexual harassment made daily against powerful men in entertainment, news, and business industries. While doing much to elevate the public discourse of sexual harassment, they are also triggering the backlash accusations of “witch hunt.”
One piece of this accusation is that in many of these cases, the incidents now reported and alleged go back five, ten or twenty years. There seems to be an inherent unfairness in bringing up such old claims now. Advocates, of course, understand victims’ reluctance to come forward with claims, since such claims are rarely taken seriously or investigated and more often than not, cause substantial negative consequences to the woman professionally, financial, and emotionally.
The law, however, is quite concerned about these types of old claims, and has several doctrines designed to address this potential unfairness to the accused.
First, are statutes of limitations, which are relatively short for sexual harassment lawsuits. Most harassment suits are filed under the federal statute Title VII, and require that complaints be filed with the EEOC within 180 days of the incident (or sometimes deferred to 300 days where state action is first sought). Statutes of limitations for sexual assault are longer, most commonly 2-3 years for civil claims of sexual assault and 5-10 years for criminal sexual assault, or even no time limit for certain crimes like sexual assault of a minor. Statutes of limitations generally help preserve evidence needed for both plaintiffs and defendants to accurately present their case, and provides timely notice and resolution of disputes. In the sexual harassment context, it also may help ensure that the perpetrator stops his continued conduct against other women.
There is an exception to the statute of limitations for sexual harassment when the incident is part of a continuing pattern of conduct. When old incidents are part of the same pattern of more recent conduct, the most recent incident triggers the clock, and the old incidents can still be brought in as evidence. Mandel v. M&Q Packaging Corp., 3d. Cir. 2013.
Laches is as second doctrine seeking to avoid old claims from being actionable. Laches is an equitable notion that bars a plaintiff from seeing a remedy when she has unreasonably delayed in filing an action, or unreasonably delayed in prosecuting the action after filing it. Here, the known reluctance and harm to victims from filing might help mitigate the unreasonableness of the delay. But the core of the laches inquiry is whether the delay caused prejudice to the defendant. Prejudice can be economic, monetary or investment harm, or procedural, such as loss of evidence and witnesses. Thus, in the law, foundational precepts of due process and fairness prohibit litigating old claims, and place the obligation squarely on the plaintiff to bring forward her claims within a short time of the incident.
Of course the media revelations of alleged past incidents are not bound by these doctrines of timeliness. Nor, apparently, are internal organizational investigations of misconduct. See NPR, Legal Landscape Shifts as More Sexual Harassment Allegations Surface Online
"It is a much sweeter and faster form of justice to out a harasser than to go through many years of legal battle, which is psychically, emotionally and financially exhausting," says Debra Katz, an attorney who specializes in harassment and discrimination in Washington, D.C. ***
More accusers are also coming forward online because "sex harassment cases have historically been difficult to prove" on legal grounds, says Deborah Rhode, a law professor at Stanford University.
More than half of sexual harassment claims made to the Equal Employment Opportunity Commission last year resulted in no charge. There is a consistent pattern in which accusers are unsuccessful, according to data from the past six years.
In addition, fewer than 5 percent of sexual harassment cases actually get to court, Rhode told Here & Now's Jeremy Hobson earlier this month.
"Fewer than those are actually litigated. And what normally happens when the cases are filed is they're settled with a confidentiality clause that prevents the victim from disclosing any details," she says.
Victims can also get around the legal statute of limitations [online], Rhode says.
"You can see people losing their jobs for conduct that occurred well before the statute of limitations," she says. "They may not have a legal claim, but they have an audience. And the reputational injuries — as we've seen with someone like Kevin Spacey — could be substantial."
Wednesday, November 15, 2017
President Donald Trump is nominating white men to America’s federal courts at a rate not seen in nearly 30 years, threatening to reverse a slow transformation toward a judiciary that reflects the nation’s diversity.
So far, 91 percent of Trump’s nominees are white, and 81 percent are male, an Associated Press analysis has found. Three of every four are white men, with few African-Americans and Hispanics in the mix. The last president to nominate a similarly homogenous group was George H.W. Bush.
The shift could prove to be one of Trump’s most enduring legacies. These are lifetime appointments, and Trump has inherited both an unusually high number of vacancies and an aging population of judges. That puts him in position to significantly reshape the courts that decide thousands of civil rights, environmental, criminal justice and other disputes across the country. The White House has been upfront about its plans to quickly fill the seats with conservatives, and has made clear that judicial philosophy tops any concerns about shrinking racial or gender diversity.
Trump is anything but shy about his plans, calling his imprint on the courts an “untold story” of his presidency.
“Nobody wants to talk about it,” he says. “But when you think of it ... that has consequences 40 years out.” He predicted at a recent Cabinet meeting, “A big percentage of the court will be changed by this administration over a very short period of time.”
Advocates for putting more women and racial minorities on the bench argue that courts that more closely reflect the demographics of the population ensure a broader range of viewpoints and inspire greater confidence in judicial rulings.
Wednesday, November 8, 2017
This paper examines the demographics of federal district court judges in the 10th Circuit. Consistent with the glass-ceiling effect literature in positions of power and influence in the legal profession, the study finds that women judges are under-represented on the 10th Circuit bench compared with their numbers as lawyers in the jurisdictions of the Circuit. However, the study finds that minority judges are over-represented in the Circuit. The paper next explores the relationship between under-representation, over-representation and discrimination. Under-representation that cannot be explained in terms of merit criteria or informed opting out, such as the under-representation of women on the 10th Circuit, strongly suggests the lingering effects of past exclusion and discrimination, as well as the current effects of implicit bias. As demonstrated by the over-representation of minority judges, the political commission process can break through the gender glass-ceiling by over-representing qualified women judges in the short run until their overall numbers better reflect equality.
Friday, November 3, 2017
The judge’s three-page order seems perfectly straightforward – until you understand the implications of her decision. Coleman’s ruling will probably spell the end of the long-running sex discrimination class action, in which the two sides are deep in discovery on the women’s request for class certification.
As I’ll explain, both the women and Ford contend the EEOC claims process can’t be reconciled with the class action, the women in their emergency motion to block the EEOC notices and Ford in a motion to deny class certification. Judge Coleman hinted at sympathy for the women’s argument that Ford made a deal with the government to circumvent the class action, writing that the company “seems to be engaging in what might be considered gamesmanship.” But her ruling means Ford’s strategy worked, gamesmanship or not.
Thursday, November 2, 2017
Brooke Coleman & Elizabeth Porter, Reinvigorating Commonality: Gender & Class Actions
The modern class action, the modern feminist movement, and Title VII of the Civil Rights Act of 1964 were all products of the creativity and turmoil of the 1960s. As late as 1961—one year after Justice Felix Frankfurter rejected new law school graduate Ruth Bader Ginsburg as a law clerk because she was a woman—the Supreme Court unanimously upheld the constitutionality of a Florida statute that required men, but not women, to serve on juries, on the ground that women’s primary role was in the home. As Betty Friedan put it in 1963’s The Feminine Mystique, “In almost every professional field, in business and in the arts and sciences, women are still treated as second-class citizens.” But change was imminent. The Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the founding of the ACLU Women’s Rights Project, and a rising social and intellectual feminist movement brought women’s equality into the national conversation. Simultaneously—at least in part in response to the civil rights movement and the Civil Rights Act —an (all-male) Judicial Conference and Supreme Court in 1966 ushered in the modern era of collective litigation by promulgating Federal Rule of Civil Procedure 23, and more specifically, Rule 23(b)(2), which provided a formal structure for civil rights plaintiffs to seek aggregate relief for violations of federal and state anti-discrimination laws. Together, these phenomena gave impetus to communities of women to combat legal and cultural injustices through the courts. The result has been widespread improvement in the lives of working women—and men—across many industries.
In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four “waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law.
This is not an empirical study, nor is it comprehensive. Rather, our aim is to generate thought as to ways in which class action doctrine simultaneously reflects and reinforces evolving views of feminism and gender equality. We acknowledge that class actions are not the sole standard bearers for impact litigation, and that individual suits—whether brought by individuals of any gender or by physicians—have been vital to the establishment of anti-discrimination legal norms in the area of gender equality. Even so, we argue that Rule 23(b)(2) suits continue to serve a vital function by allowing women to enforce those established norms, overcoming classic barriers to judicial justice such as lack of resources, lack of access to lawyers, and retaliation by employers against individuals who file suit. As Anita Hill recently argued in a critique of the technology sector, “Class action lawsuits can force industry-wide change, even in the most entrenched, male-dominated industries.”
William E. Even & David A. MacPherson, The Gender Wage Gap and the Fair Calculations Act
If enacted as a law, the Fair Calculations Act would require forensic economists to ignore an injured party’s gender when forecasting the loss in future earnings. We discuss how this would affect the size of awards for men and women, and some of the issues that would arise if the law is enacted. Of particular interest is the extent to which gender-differences in earnings, earnings growth, and work-life expectancy are the result of sex-discrimination in labor markets as opposed to sex-differences in preferences. We present evidence that gender differences in human capital characteristics explain a large share of gender differences in in labor market outcomes, there is considerable disagreement about how to interpret the results. We also show that gender differences are diminishing over time, but it is not likely that the gap will disappear in the near future. Finally, we discuss how forensic economists may have to rely on additional information when forecasting earnings if they are no longer allowed to use gender.
Here's the proposed federal Fair Calculations in Civil Damages Act which "prohibits courts from awarding damages to plaintiffs in civil actions using a calculation for projected future earning potential that takes into account a plaintiff's race, ethnicity, gender, religion, or actual or perceived sexual orientation."
Tuesday, October 31, 2017
It's Halloween... which for law and gender means time to remember the Salem Witch Trials.
Most of the victims of the trials were women. And most of the accusers. Scholars have talked about the trials as misogyny and at the same time as women's assertion of agency and power. They also suggested the lax evidentiary standards allowed social judgments about women to be determinative of legal guilt.
Stacy Schiff, The Witches: Salem, 1692 (2015)
Carol Karlsen, The Devil in the Shape of a Woman (1998)
Jane Moriarty, Wonders of the Invisible World: Prosecutorial Syndrome and Profile Evidence in the Salem Witchcraft Trials, 26 Vermont L. Rev. 43 (2001)
Mary Beth Norton, In the Devil's Snare: The Salem Witchcraft Crisis of 1692 (2003)
Peter Hoffer, The Salem Witchcraft Trials: A Legal History (1997)
Wednesday, October 25, 2017
Women are underrepresented in virtually every international body responsible for adjudicating, monitoring, and developing international law. As of February 2017, three of the 15 judges on the International Court of Justice are women; the International Tribunal for the Law of the Sea has 21 judges, only one of whom is a woman; and the International Criminal Tribunal for the Former Yugoslavia has no permanent women judges. This working paper analyzes the extent to which international human rights law and standards support the GQUAL Campaign’s call for States to pledge to achieve gender parity on international courts and monitoring bodies.
States establish the nominating or voting procedures that apply to any particular international body. There are a number of opportunities for States to shape the pool of applicants, the composition of any short list, and the final composition of the international body. Because States have a fundamental role in establishing the procedures and controlling the final outcome, the GQUAL Campaign calls on States to address underrepresentation by adopting measures to rectify the gender imbalance on international judicial and monitoring bodies.
The Campaign is rooted in well-established and widely accepted provisions of international law. Article 8 of the Convention on the Elimination of all Forms of Discrimination against Women (“CEDAW”) establishes the right of women to represent their governments at the international level, on equal terms with men and without discrimination, and to participate in the work of international organizations. To gain a fuller understanding of the international legal basis for gender parity in addition to the CEDAW framework, this working paper identifies and analyzes complementary international human rights law standards pertinent to the GQUAL Declaration found in the UN Charter, selected international human rights treaties, UN resolutions, and policy statements.
The absence of women in equal numbers with men as international judges and members of human rights monitoring bodies is a grave issue. Gender disparities in international institutions undermine the international commitment to equality and non-discrimination. Further, the lack of gender parity erodes the legitimacy of international legal institutions and their mandates to uphold these universal values. This working paper contributes to the effort to address this gap by drawing attention to the scope of international human rights law and standards that can be marshaled to ground the GQUAL Declaration in international law and accepted best practices.
Wednesday, October 18, 2017
Jena McGill & Daphne Gilbert, Of Promise and Peril: The Court and Equality Rights, 78 Supreme Court Law Review (2d) 235 (2017)
In this brief reflection, we look back on 32 years of equality advocacy and outcomes at the Supreme Court of Canada. We recount the fraught trajectory of the Supreme Court of Canada’s section 15 jurisprudence over the past decades, tracing the evolution of three distinct approaches to equality rights and highlighting the unique role that the Women’s Legal Education and Action Fund (LEAF) and its feminist equality advocacy has played in shaping the Court’s jurisprudence at each stage of section 15’s life. We then look to the future of section 15, suggesting that recent jurisprudence indicates the emergence of a new era in equality rights at the Supreme Court characterized by a distinct turning away from section 15 arguments. We offer some preliminary comments on what this trend might mean for the future of equality rights and for the future of feminist litigation strategies under the Charter, arguing that some of LEAF’s ideas about how to pursue substantive equality under section 15 that have not been acknowledged by the Court offer promising new directions for the next chapter of section 15 jurisprudence. We conclude that while under the current state of section 15 jurisprudence equality rights may be imperilled, the promise of section 15 remains.
Tuesday, October 17, 2017
Nancy B. Arrington, Leeann Bass, Adam Glynn, Jeffrey K. Staton, Brian Delgado, Staffan I. Lindberg, Gender Diversity in High Courts
Increasing the diversity of political institutions is believed to improve the quality of political discourse and, subsequently, the quality of political outcomes. Moreover, the presence of diverse officials in positions of power signals the openness and fairness of political institutions. These benefits of diversity should be particularly acute in the judiciary, where judges are tasked with the symbolically and substantively powerful duty of interpreting and defending constitutional values. Extant scholarship suggests that well-designed appointment process can promote diversity without explicitly gendered goals, much less quotas. If correct, these proposals raise the possibility of promoting greater diversity without having to resolve politically charged debates about quotas. Yet, scholars disagree about the effects of particular design choices. Worse, estimating causal effects of institutions in observational data is particularly difficult. We develop a research design linked to the empirical implications of existing theoretical arguments to evaluate the effect of institutional change on the gender diversity of peak courts cross-nationally. Specifically, we consider the effect of an increase (or a decrease) in the number of actors involved in the appointment process. We find mixed results for any existing claim about the role of appointment institutions play in increasing diversity. Yet we also find that any institutional change seems to cause an increase in the gender diversity of peak courts.
From the Intro:
The presence of more women on peak courts may in influence the law, and by implication, core matters of public policy, either because women understand the law in particular contexts or evaluate facts differently than men (e.g. Boyd, Epstein and Martin, 2010; Glynn and Sen, 2015; Collins, Manning and Carp, 2010) or because male judges behave differently when they share the bench with women (Boyd, Epstein and Martin, 2010; Farhang and Wawro, 2004). It is also possible that more diverse courts promote the legitimacy of the justice system (e.g. O'Connor and Azzarelli, 2011; Kenney, 2013), and increased gender diversity on important courts may be conceived of simply as an unalloyed normative good (e.g. Malleson, 2003).
Thursday, October 12, 2017
Livia Holden, Women Judges and Women's Rights in Pakistan, 7 Onati Socio-Legal Series (2017).
Although the first appointment of women judges in Pakistan dates back to 1974, the significant appointment of “lady judges” in the past decade has caused a jump in female representation in the judiciary to more than one third in family courts – a quiet move that sends a message of adherence to the principle of gender equality as per the international treaties to which Pakistan is signatory. By investigating the everyday interactions and preoccupations of women judges in their daily management of justice, this paper explores the socio-legal reception of the human rights discourse from the perspective of the female judges. The challenge in this scenario is whether this change will only be formal or whether it will also lead to substantial and accountable justice. The findings here additionally elucidate how the global agenda impacts local expectations and conceptualizations of rights within and beyond the state.
According to statistics from Pakistan’s Law and Justice Commission (2009-2013), women now represent at least 1/3 of the judiciary in family courts in Pakistan. This figure makes Pakistan the country with the greatest number of women-appointed judicial officers among common law legal systems in Muslim majority states.1 Given the overall scarcity of information—not only in Pakistan but throughout the world—regarding modalities of judicial appointments (especially as concerning social diversity), this figure should be taken with a certain degree of caution. Nevertheless, it seems to be a significant indicator of an increasing awareness regarding gender representation in the judiciary, which is not, however, the primary focus of this paper.2 On the basis of qualitative data positioned on a national level by including state law and relevant legal precedents, this paper addresses the main concerns of women judges in Pakistan in their daily professional lives. This data assists in understanding how the global agenda of women’s rights is received and implemented in Pakistan. * * *
In June 2011, the Thomas Reuters Foundation’s poll of experts declared Pakistan among the three most dangerous countries for women “due to a barrage of threats ranging from violence and rape to dismal healthcare and ‘honor’ killings”. The same report also signaled that 90% of women in Pakistan are exposed to some form of domestic violence. Even though our fieldwork experiences suggest that such quantitative data require scrutiny, these should nevertheless be considered as components of the social framework in which female judges work in Pakistan.
Friday, October 6, 2017
Once Stephanos Bibas is confirmed, the Third Circuit will have 12 active judges: 10 men and 2 women. That gender imbalance is appalling.
Two Third Circuit openings remain — one for Pennsylvania, one for New Jersey. We do need those seats filled, because the court has a crushing case load and we need the court back up to full strength.
We need both of those seats filled by women.
Senators, this is an air-raid-siren crisis. The shortage of women judges on the Third Circuit weakens the court and undercuts its legitimacy. It undermines public confidence in the federal judiciary at a moment in history when that confidence is needed urgently. It weakens our legal system and our democracy.
Nationwide, more than a third of active circuit judges are women. That’s double — double! — the Third Circuit’s proportion. If other circuits can do it, we can too.
We have done it in the past. The Third Circuit has a proud history of service by women on the bench. As recently as 2006, the court had four active judges who were women. But all four have since taken senior status, and from 2000 to 2012 10 Third Circuit seats in a row were filled by men.
Senators, you didn’t cause this problem, but it is a problem you can fix.
Nine of the 22 sitting federal district judges for the District of New Jersey are women. Thirteen of Pennsylvania’s sitting district court judges are women. Our law school faculties and practicing bars are brimming with qualified women who would bring credit to the court.
And this shouldn’t be a partisan issue. Four of President Trump’s 12 pending circuit nominees are women, right in line with the national rate. In the two most conservative circuits in the nation, the Fifth and Eleventh, 40% of the active judges — 10 of 25 — are women. Republicans are just as capable as Democrats of finding outstanding women to fill circuit judgeships.
President Obama nominated Rebecca Haywood last year, who would have been the first black woman to serve on the Third Circuit.
Wednesday, October 4, 2017
While the mass incarceration of men has dominated the discussion of policing and prisons over the past few years—and rightly so—there’s been a recent shift in thinking about incarcerated women, and not a moment too soon. According to a report by the Vera Institute, women’s incarceration has increased a startling 14-fold since 1970. Like their male counterparts, these women are also overwhelmingly women of color.
Despite the shocking increase in their numbers, however, the specific issues and needs of female prisoners have largely gone ignored. In particular, as National Domestic Violence Awareness Month begins in the U.S., it’s worth noting that the vast majority of women in prison are single mothers who have been victims of domestic and/or sexual violence.
These concerns have rarely been part of prison-reform discussions, and yet this fact is typical of the history of women’s incarceration in our country.
Criminal justice in the American South for decades following the Civil War was meted out unjustly, disproportionately affecting African Americans, regardless of gender. And, thanks to a unique historical record created by women in a Mississippi prison in the 1930s, it’s possible to see that the similarities between women’s incarceration then and now is significant. In both periods, women were more likely to be incarcerated for nonviolent crimes than for violent ones. Likewise, many of the incarcerated women in both cases were victims of domestic and sexual violence whose income was vital to their family household.
This report matches my own experience. In practice, I handled a pro bono class action on behalf of the women prisoners in D.C. See Women Prisoners of DC v. District of Columbia.
Thursday, September 28, 2017
It was the Government v. the Government on Whether Sexual Orientation Discrimination is Gender Discrimination
In the recent Second Circuit case, it was the Government - the Equal Employment Opportunity Commission v. the Government - the Department of Justice. The government bizarrely found itself on opposite sides of the issue.
Erin Mulvaney, US Agencies to Clash in Appeal Over Sexual Orientation Bias
The U.S. Court of Appeals for the Second Circuit will hear arguments in a high-profile case next week that could telegraph what’s to come in the ongoing legal battle over whether sexual orientation should be protected under federal civil rights law. Zarda v. Altitude Express is also notable in that it pits two government agencies—the U.S. Department of Justice and the U.S. Equal Employment Opportunity Commission—against each other in the courtroom.
After a three-judge panel of the Second Circuit ruled back in April that Title VII of the Civil Rights Act of 1964 does not protect LGBTQ workers, the full appeals court agreed to revisit the decision en banc. Arguments are scheduled for Sept. 26 in New York.
The ultimate answer to the question of whether Title VII should be expanded in scope to include workers from discrimination based on their sexual orientation will have widespread effects on companies across the country. So far, rulings on the issue have varied, and eventually the Supreme Court will almost certainly provide its own view. Lower court arguments will be crucial in setting the stage for a possible circuit split and an eventual high court showdown.
The U.S. Court of Appeals for the 2nd Circuit had a burning question for Donald Trump’s Department of Justice on Tuesday: What are you doing in our courthouse? By the end of the day, the answer still wasn’t clear. Something else was, though: The DOJ’s new anti-gay legal posture is not going to be received with open arms by the federal judiciary.
The Justice Department’s latest wound was fully self-inflicted, as Tuesday’s arguments in Zarda v. Altitude Express should not have involved the DOJ in the first place. The case revolves around a question of statutory interpretation: whether Title VII of the Civil Rights Act of 1964 outlaws anti-gay workplace discrimination. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to encompass sexual orientation discrimination. The 2nd Circuit is not yet one of them, and Chief Judge Robert Katzmann signaled recently that he would like to change that. So on Tuesday, all of the judges convened to consider joining the chorus of courts that believe Title VII already prohibits anti-gay discrimination in the workplace.
It’s important to understand some background before getting further into how those arguments went. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination doesprotect gay employees. Under President Barack Obama, the Justice Department took no position on this question. But in late July, Attorney General Jeff Sessions’ DOJ unexpectedly filed an amicus brief in Zarda arguing that Title VII does not protect gay people. The 2nd Circuit had not solicited its input, making the brief both puzzling and gratuitous. Its purpose only became apparent in September, when the DOJ filed a similarly uninvited brief asserting that bakers have a free speech right not to serve same-sex couples. Both anti-gay briefs were startlingly incoherent, seemingly the product of political pandering rather than legal reasoning.
Regardless, the DOJ’s decision to weigh in on Zarda ensured that oral arguments would include the weird spectacle of one federal agency opposing another in court. That doesn’t happen often—and really shouldn’thappen—because the executive branch is expected to speak with one voice on legal affairs.
Friday, September 15, 2017
by Congresswoman Yvette D. Clarke who represents New York’s Ninth Congressional District in Congress. She has served in Congress since 2007 and is co-chair of the Congressional Caucus on Black Women & Girls.
September 14th marks what would have been Constance Baker Motley’s 96th birthday. In 1966, Judge Motley became the first Black woman to serve as a federal judge. Yet, fifty years later, Black women are still heavily underrepresented at nearly all levels of the legal profession. While Black women are also underrepresented in the arts, sciences, media, and numerous other industries, our underrepresentation in the legal profession is particularly troubling, given its unique role in protecting the rights of those who lack the knowledge or resources to protect their constitutional rights.
The history of Black female attorneys in the United States really begins with Charlotte E. Ray. On March 2nd, 1872 Ms. Ray became the first Black woman to serve as a licensed attorney in the United States. Charlotte E. Ray was born in my home state of New York in 1850 at a time when slavery still existed and even freed Black women were taught that the measure of their success was their ability to care for the men in their lives. Not willing to accept this narrow definition of purpose, Ms. Ray hid her gender in order to gain acceptance to Howard Law School. She worked twice as hard as her male colleagues to graduate Phi Beta Kappa and was admitted to the District of Columbia Bar that same year. This made Ms. Ray only the third licensed female attorney in the United States. Ms. Ray was also a dedicated social advocate and served as a delegate to the 1876 Conference of the National Woman’s Suffrage Association.
While Charlotte E. Ray laid the foundation for Black women to serve as attorneys in the United States, it took nearly fifty years until a Black woman gained admission to the highest bar in the nation. This occurred on January 29, 1926 with the admission of Violette Neatley Anderson to the Bar of the Supreme Court of the United States. Ms. Anderson had served as a court reporter for fifteen years before attending the Chicago Law School. Like Charlotte E. Ray, Violette Neatley Anderson was deeply involved in her community and recognized the need for women of color to help each other overcome the unique barriers that stood in their way.
Yet, the tide of progress remained slow for Black women in the law. It took until January 25, 1966 until Constance Baker Motley was nominated to serve as a federal judge on the U.S. District Court for the Southern District of New York. By this point, Ms. Motley was already a towering figure in the law. Born in New York to parents from the Caribbean, Ms. Motley joined the NAACP’s Legal Defense and Education Fund soon after graduating from Columbia Law School. At LDF, Ms. Motley helped draft the original complaint in Brown v. Board of Education and became the first Black woman to argue a case before the Supreme Court, ultimately winning nine of the ten cases that she argued before that body.
More than fifty years after Constance Baker Motley became the first Black woman to serve as a federal judge, Black women are still grossly underrepresented at nearly all levels of the legal profession. Despite comprising more than 6.6 percent of the US population, Black women accounted for less than 5 percent of full time law school graduates for the 2014 and 2015 academic years. A January 2017 NALP report similarly found that Black women only accounted for 2.32 percent of associates at major law firms and a paltry 0.64 percent of partners.
Of the 578 active district court judges in the United States, 6.4 percent (37) are Black women. While this is roughly proportionate to our share of the U.S. population, 65 percent (24) of these district court judges were nominated within the past few years by President Obama. Unsurprisingly, Black female representation drops precipitously on the circuit courts. Of the 160 active circuit court judges, only 4.4 percent(7) are Black women. Two of those judges, representing 29 percent of the total figure, were appointed by President Obama. We need not even proceed to the highest court in the land, since it is well known that no Black woman has ever served on the Supreme Court