Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Tuesday, August 14, 2018

Judicial Phenomenon Ruth Bader Ginsburg Celebrates 25 Years on the Court

Joan Biskupic, Ruth Bader Ginsburg, Now a Judicial Phenomenon, Marks 25 Years on the Bench

The documentary "RBG," co-produced by CNN, has made $13.5 million at the box office, according to comScore, and will be broadcast next month on the network. Oscar nominee Felicity Jones will play her in a feature film, "On the Basis of Sex," in December.
 
The justice said recently that she hopes to stay on the Supreme Court at least five more years, when she'll be 90. She has survived two bouts with cancer, colorectal in 1999 and pancreatic in 2009.
 
Ginsburg's celebrity might not have been predicted when President Bill Clinton chose her for the high court in summer 1993. Then a 60-year-old federal appellate judge, she was not Clinton's first choice. He was looking for a flashier appointee and initially tried to woo former New York Gov. Mario Cuomo to the bench.
 
Ginsburg, with her large-rimmed glasses, hair tied back in a short ponytail, presented the picture of seriousness. She spoke of taking "measured motions" as a jurist. Supporters portrayed her as a night owl who spent hours hunched over law books and legal briefs, tepid coffee and prunes at hand. Her daughter created a little book titled "Mommy Laughed," chronicling the few times it happened.
 
Once on the Supreme Court, Ginsburg was a sharp questioner and meticulous opinion-writer. She leaned in but without the attention-getting style of the first female justice, Sandra Day O'Connor, or gregarious longtime pal Antonin Scalia.
 
She was hardly a liberal in the mode of contemporary justices on the left: William Brennan, Thurgood Marshall or Harry Blackmun. But as the court changed over the years and became more conservative with each retirement, she found herself carrying the banner for the left.

August 14, 2018 in Judges, Legal History, Pop Culture, SCOTUS, Women lawyers | Permalink | Comments (0)

Thursday, July 26, 2018

The 411 on the Second New Ruth Bader Ginsburg Movie "On the Basis of Sex"

Absolutely cannot wait for this.  (Coming in December).  So cool that the costumes (at least in the trailer) closely align with the archival photos.

On the Basis of Sex Official Movie Site

Felicity Jones is Ruth Bader Ginsburg in New Trailer for "On the Basis of Sex"

Felicity Jones makes a damn good Ruth Bader Ginsburg.

Jones plays the iconic Supreme Court justice in the upcoming film based on RBG’s life, “On the Basis of Sex.” A new trailer for the film follows a young Ginsburg as she starts law school at Harvard, where she was only one of nine other female students in her class.

“Protests are important, but changing the culture means nothing if the law doesn’t change,” Ginsburg says to political activist and fellow lawyer Dorothy Kenyon (Kathy Bates) in the trailer. 

"On the Basis of Sex" Trailer: Can Felicity Jones Handle Ruth Bader Ginsburg's Accent?" [sic the NYT's headline snark]

A biopic of the Supreme Court justice Ruth Bader Ginsburg could hardly seem timelier, given the current headlines about President Donald J. Trump’s new nominee for the high court, Brett Kavanaugh, as well as the surprise box-office success of the recent documentary “RBG.” But based on the first trailer for “On the Basis of Sex,” fictionalization may prove stranger than truth in this case.

For two years, Natalie Portman was slated to play Justice Ginsburg, but dropped out in 2017, only to be replaced by Felicity Jones. Ms. Jones was born in Birmingham, England, and initial impressions indicate she may not have nailed Ms. Ginsberg’s distinctive Brooklyn accent.

Felicity Jones is Ruth Bader Ginsburg in First Trailer for "On the Basis of Sex"

Felicity Jones Transforms into Young Ruth Bader Ginsburg in Trailer

July 26, 2018 in Judges, Legal History, Media, Pop Culture, SCOTUS | Permalink | Comments (0)

Wednesday, June 13, 2018

Senate Judiciary Committee Hearing Today on Sexual Harassment by Judges

Watch the hearing here on CSPAN Senate Committee Examines Workplace Misconduct in the Federal Judiciary, June 13, 2018

Joan Biskupic, CNN, Senate Judiciary Committee Takes up #MeToo in the Courts

The Senate Judiciary Committee will hear testimony related to judicial misconduct on Wednesday, including from a Washington lawyer who says she collected numerous accounts of sexual harassment by judges, in the first public airing of US judges' #MeToo moment.

Jaime Santos says that after women went public last December with complaints against California-based US Appeals Court Judge Alex Kozinski, she and colleagues began trying to address the larger harassment issue by talking to women who had worked closely with federal judges in prestigious law clerk positions.
"Harassment and abuse within the judiciary are not the rule, but these experiences are not uncommon," Santos, who is a former law clerk from the 9th Circuit, where Kozinski served, says in prepared testimony. "Law clerks and externs from numerous federal courts shared with us that they had felt demeaned, belittled, or humiliated during their clerkships or externships.
 
"Some shared stories about being asked sexual questions during job interviews, hearing their judge or co-clerks speak about female attorneys in derogatory and objectifying terms, and being groped or kissed in public and in private."
 
A CNN special report in January, examining about 5,000 judicial orders arising from misconduct complaints over the past decade, found that courthouse employees and others with potentially valid complaints against judges rarely use the judiciary's misconduct system, or get no relief when they do. Judges overseeing the system seldom find that a claim warrants an investigation or that a judge should be disciplined.
 
On Wednesday the Senate committee is also scheduled to hear from James Duff, director of the Administrative Office of the US Courts, who oversaw a group set up to examine judicial misconduct. Chief Justice John Roberts established the working group in December after The Washington Post first reported complaints from women against Kozinski.
 
In his prepared remarks, Duff highlights the group's proposal for a national Office of Judicial Integrity, with a hotline for employees to seek counseling, guidance and intervention if harassed. Duff also says the current process for reporting complaints against judges "works well when utilized." He said officials are trying to make it easier to use.
The working group reported earlier this month that "inappropriate conduct" in courthouses is "not limited to a few isolated instances," but the group did not detail the magnitude of employee abuse beyond saying it was "not pervasive."
It did make several recommendations, including that judges put a greater priority on improving workplace culture, the code of conduct be revised to make clear what behavior is prohibited and the complaint system be made more transparent and accessible.
 

Live tweeting commentary on the hearing by Courtney Milan (pen name of former law prof and Kozinski judicial clerk Heidi Bond) @courtneymilan 

For more on the Working Group Report from the committee which studied the issue:

The Federal Judiciary Working Group Issues Its Report on Workplace Sexual Misconduct

Working Group Recommends Changes to Prevent Workplace Harassment in the Judiciary

June 13, 2018 in Courts, Judges, Legislation, Women lawyers, Workplace | Permalink | Comments (0)

Monday, June 11, 2018

The Federal Judiciary Committee Issues its Report on Workplace Sexual Misconduct

Workplace Changes Recommended for Judiciary

The Federal Judiciary Workplace Conduct Working Group, a group of federal judges and senior Judiciary officials formed at the request of Chief Justice John G. Roberts, Jr., issued a report recommending measures to improve workplace conduct policies and procedures in the federal Judiciary. The Working Group submitted its findings to the Judicial Conference of the United States, the federal Judiciary’s policy-making body. The report and an executive summary are available online.

 

The recommendations include clarifying workplace standards and communications about how employees can raise formal complaints, removing barriers to reporting complaints, providing additional and less formal avenues for employees to seek expert advice and assistance on workplace conduct issues, and utilizing enhanced training on these subjects for judges and employees.

 

Several recommendations of the Working Group have already been implemented or are underway, such as clarifying that confidentiality rules in the Judiciary do not prevent law clerks or employees from reporting misconduct by judges. Many of the report’s recommendations require further action by the Judicial Conference.  

The report is here.

Commentary by Joan Biskupic, CNN, Judicial "Inappropriate Conduct" Broader than Isolated Incidents, Panel Finds

A special US judiciary working group set up last December after a prominent appeals court judge was accused of sexual harassment reported on Monday that "inappropriate conduct" in the nation's courthouses is "not limited to a few isolated instances."

 
Yet the eight-member group -- which met with scores of former and current employees of the judiciary and invited comment nationwide -- did not detail the magnitude of employee abuse in the US judiciary beyond saying it was "not pervasive." The group also did not note whether, during its five months of study, any action was taken against individual judges or other court employees.
The working group, which was established by Chief Justice John Roberts, made several recommendations in its report, including that:
  • judges should put a greater priority on improving workplace culture
  • the code of conduct should be revised to make clear what behavior is prohibited
  • the complaint system should be made more transparent and accessible.

June 11, 2018 in Courts, Judges, Women lawyers, Workplace | Permalink | Comments (0)

Tuesday, April 3, 2018

Public Perceptions of Gender Bias in the Decisions of Female State Court Judges

Michael P. Fix & Gbemende E. Johnson, Public Perceptions of Gender Bias in the Decisions of Female State Court Judges, 70 Vanderbilt L. Rev. 1845 (2017)

How are women on the bench, and their decisions, perceived by the public? Many scholars find that gender influences the voting behavior of judges and the assessment of judges by state judicial systems and the American Bar Association. However, few scholars have examined how judge gender affects the way in which the public responds to judicial outcomes. Does the public perceive the decisions of female state court judges as being “biased” by their gender identity, particularly in cases involving reproductive rights/family law? Also, does the public view female judges on state courts as more likely to rely on ideology when ruling in cases? Using a survey experiment that varies judge gender in a state child custody case, we examine whether respondents exhibit less support for judicial decisions authored by female state court judges. Additionally, we test whether respondents are more likely to perceive the decisions of female state court judges as ideologically biased or as a product of gender influences (as compared to male judges). Finally, we assess whether these effects are conditional on or exacerbated by respondent characteristics such as gender, race, and religiosity. The influence of gender on public response to state court decisions has important implications for our understanding of why certain court decisions find public support and acceptance.

April 3, 2018 in Courts, Judges | Permalink | Comments (0)

Thursday, March 22, 2018

Evaluating Leadership Patterns of Modern Canadian Chief Justices

Cindy Ostberg & Matthew Wetstein, Strategic Behavior and Leadership Patterns of Modern Chief Justices

This study uses theories of strategic behaviour, leadership change and feminist theory to examine patterns of judicial activity by the three post-Charter chief justices. Building on prior scholarship, we use various methods to examine patterns of majority voting, dissenting activity, opinion writing, ideological voting, and panel size across the 1973-2014 period. While Chief Justice Lamer and Dickson exhibited clear patterns of task leadership, we find strong evidence of strategic change by Chief Justice McLachlin after her promotion to chief. She moved from a prolific dissenter as an associate justice to a chief that exhibited behaviour of both a task and social leader, which scholars see as highly uncommon. Her efforts to solidify her central role as a collegial leader within her own court are remarkable, and took place during a period of increasing panel sizes and a shrinking court docket.

March 22, 2018 in Courts, International, Judges | Permalink | Comments (0)

Wednesday, March 14, 2018

Update on Work of Federal Judiciary Workplace Conduct Working Group on Sexual Harassment

Judicial Conference Receives Status Report on Workplace Conduct Review

Nearly 20 reforms and improvements have been implemented or are under development to help address workplace conduct concerns in the federal judiciary, James C. Duff, Chair of the Federal Judiciary Workplace Conduct Working Group, reported today at the biannual meeting of the Judicial Conference.

 

In introducing Duff before he delivered his report, Chief Justice John G. Roberts, Jr., who is the Conference's presiding officer, told the group, "I would like to reiterate what I stated in my year-end report. I have great confidence in the men and women who comprise the federal judiciary. I am sure that the overwhelming number have no tolerance for harassment and share the view that victims must have a clear and immediate recourse to effective remedies. The Work of this group will help our branch take the necessary steps to ensure an exemplary workplace for every court employee."

 

“Any harassment in the judiciary is too much,” Duff said in his report to the Conference. He told the Conference that the Working Group hopes to simplify and develop additional options, at both the national and local levels, for employees to seek assistance with workplace conduct matters. . . . 

 

Representatives of current and former law clerks and a cross-section of current judiciary employees met with the Working Group at its most recent meeting and had what Duff described as "an informative and productive discussion."

 

The Working Group also is receiving input via a mailbox on uscourts.gov, through which current and former judiciary employees can submit comments relating to the policies and procedures for protecting all judiciary employees from inappropriate workplace conduct.... 

 

The following either have been accomplished or are in progress:

  • Provided a session on sexual harassment during the ethics training for newly appointed judges in February.
  • Established an online mailbox and several other avenues and opportunities for current and former judiciary employees to comment on policies and procedures for protecting and reporting workplace misconduct.
  • Added instructive in-person programs on judiciary workforce policies and procedures and workplace sexual harassment to the curricula at Federal Judicial Center programs for chief district and chief bankruptcy judges this spring and upcoming circuit judicial conferences throughout the country this spring and summer.
  • Removed the model confidentiality statement from the judiciary’s internal website to revise it to eliminate any ambiguous language that could unintentionally discourage law clerks or other employees from reporting sexual harassment or other workplace misconduct.
  • Improve law clerk and employee orientations with increased training on workplace conduct rights, responsibilities, and recourse that will be administered in addition to, as well as separately from, other materials given in orientations.
  • Provide “one click” website access to obtain information and reporting mechanisms for both Employment Dispute Resolution (EDR) and Judicial Conduct and Disability Act (JC&D) claims for misconduct.
  • Create alternative and less formalized options for seeking assistance with concerns about workplace misconduct, both at the local level and in a national, centralized office at the Administrative Office of the U.S. Courts, to enable employees to raise concerns more easily.
  • Provide a simplified flowchart of the processes available under the EDR and JC&D.
  • Create and encourage a process for court employee/law clerk exit interviews to determine if there are issues and suggestions to assist court units in identifying potential misconduct issues.
  • Establish a process for former law clerks and employees to communicate with and obtain advice from relevant offices and committees of the judiciary.
  • Continue to examine and clarify the Codes of Conduct for judges and employees.
  • Improve communications with EDR and JC&D complainants during and after the claims process.
  • Revise the Model EDR Plan to provide greater clarity to employees about how to navigate the EDR process.
  • Establish qualifications and expand training for EDR Coordinators.
  • Lengthen the time allowed to file EDR complaints.
  • Integrate sexual harassment training into existing judiciary programs on discrimination and courtroom practices.
  • Review the confidentiality provisions in several employee/law clerk handbooks to revise them to clarify that nothing in the provisions prevents the filing of a complaint.
  • Identify specifically the data that the judiciary collects about judicial misconduct complaints to add a category for any complaints filed relating to sexual misconduct. The data shows that of the 1,303 misconduct complaints filed in fiscal year 2016, more than 1,200 were filed by dissatisfied litigants and prison inmates. No complaints were filed by law clerks or judiciary employees and no misconduct complaints related to sexual harassment.

March 14, 2018 in Equal Employment, Judges, Workplace | Permalink | Comments (0)

Friday, March 9, 2018

Where are the Women on the European Court of Justice?

Rebecca Gills & Christian Jensen, Where are the Women? Legal Traditions and Descriptive Representation on the European Court of Justice, in Politics, Groups, and Identities (Feb. 2018)

What constrains the representation of women on the European Court of Justice (ECJ)? In this paper, we investigate how gender-based double standards can diminish the likelihood that the member state will select a female candidate. We find that the appointment of women to the ECJ depends upon the relationship between the appointee's policymaking backgrounds and the degree to which legal traditions in the member state provide policymaking experience to ordinary judges. The fact that this configuration has a disparate impact by candidate gender reflects the fact that female candidates are expected to demonstrate partisan neutrality or policymaking expertise, while male candidates are assumed to have these traits. Our findings demonstrate the importance of informal job requirements and institutional constraints on the ability of governments to achieve their representation goals.

March 9, 2018 in Courts, Gender, International, Judges | Permalink | Comments (0)

Wednesday, February 28, 2018

Book Review: Justice Claire L’Heureux-Dubé: A Life

Kim Brooks, Justice for Equality, JOTWELL, reviewing Constance Backhouse, Claire L’Heureux-Dubé: A Life (2017).

Claire L’Heureux-Dubé was Canada’s second woman to join our Supreme Court of Canada. She was famous for her strong personality, her charm, her directness, and eventually her willingness to dissent. She was loved by some, loathed by others.

My opening paragraph so dramatically understates the significance of Justice L’Heureux- Dubé. It pretends that the life of one woman – a woman who faced substantial personal and professional challenges – can be adequately captured in a few words.

Enter Constance Backhouse’s brilliant biography. Biography is an art. How to render a person visible? To be appropriately honest about her failings and reflective about her successes? To situate her life within its broad context – social, political, economic, and scientific? To reflect her social character – her relationships and the effects of those relationships on the path of her life?

Backhouse’s considerable work answers these questions.

In over 700 meticulously researched pages, she takes us on a magnificent journey. ***

These opening twenty-eight chapters (in a book with thirty-eight chapters) are gorgeously written with specificity that leaves the reader feeling like she is standing right beside L’Heureux-Dubé as her life unfolds. That’s credit to Backhouse’s use of detail, her reliance on hundreds and hundreds of hours of interviews with L’Heureux-Dubé and those who know her, and her fierce analytical skill, which renders plain the subtle.

Unconventionally, but useful especially to the legally trained reader, the biography then looks carefully at six of Justice L’Heureux-Dubé’s Supreme Court of Canada decisions – decisions she rendered on sexual assault, spousal support, human rights for same-sex couples, tax law, Quebec secession, and immigration. These decisions are presented as signature moments in Justice L’Heureux-Dubé’s self-expression. Backhouse situates each decision in its broader social context. Each of these last six chapters has its own story to tell and each should be included in any course materials that include the underlying decision. Each is dazzling.

February 28, 2018 in Books, Courts, Judges, Legal History, Women lawyers | Permalink | Comments (0)

Thursday, February 15, 2018

Gendered Relations of the Judges on the Brazilian Supreme Court and the Impact on Judicial Decisionmaking

Rafaela Carvalho, "They Don't Let Us Speak": Gender Relations and Judicial Decision-Making in the Brazilian Supreme Court

Supreme Courts are generally portrayed as institutions particularly well-positioned to defend and promote rights of minorities, including gender rights. However, gender discrimination often occurs within these institutions. Although existing empirical studies have largely focused on how the gender of the judge affects his or her decisions on the merits of the case, gender hierarchy and gender stereotypes can have an impact in other aspects of Court’s operation, such as in how judges relate to one another during deliberations. The paper aims to explore one facet of this phenomenon by looking at gendered relations judges in the Brazilian Supreme Court decision-making process. By examining a database containing all the court rulings debates between 2001 and 2013, we analyze the impact of gender in two dimensions of judicial behavior in a collegiate setting. More specifically, we test whether the gender of their colleagues affect how Brazilian Supreme Court Justices behaves when it comes to (i) dissenting from the case reporter's opinion; and (ii) asking for deliberations to be suspended, after the case reporter has spoken, in order to further study the arguments and case files. In all these dimensions, we expect the justices' confidence in the reporter's or the dissenter's knowledge or authority on the issues being discussed plays an important role, which makes them relevant to understanding the role of gender stereotypes. Our preliminary results point to gender biases in the Justices' attitudes towards female case reporters and female dissenters in at least one of these dimensions: when the case reporter is female, the other Justices are more likely to dissent. We interpret these results as suggesting that gender stereotypes -- for example, that women are less competent or reliable, and/or less likely or less able to retaliate -- might help us understand decision-making in the STF and in Brazilian courts more generally.

February 15, 2018 in International, Judges | Permalink | Comments (0)

Friday, February 9, 2018

Justice Sotomayor: You Can't Fight the Facts of Women's Inequality

"You Can't Fight the Facts": Sotomayor Makes Case for Pay Equality

Justice Sonia Sotomayor this week homed in on pay inequality as one of the country’s biggest issues, as lawsuits are underway challenging the gender pay gaps at major companies and the Trump administration defends its scuttling of an expanded federal pay data rule.

 

In an appearance Wednesday at Brown University, Sotomayor was asked by a student what she considered the greatest challenges facing women.

“Women doing the same work still earn less than men. You can’t fight the facts. Pay equality is one of the biggest issues our nation faces,” Sotomayor said.

 

In November, the National Women’s Law Center and the Labor Council for Latin American Advancement sued the Trump administration’s Office of Management and Budget and the U.S. Equal Employment Opportunity Commission. They charged that government officials illegally blocked an Obama administration rule that would have required employers with 100 or more employees to report pay for their employees by race, gender and ethnicity.

 

The data rule was eliminated without explanation or opportunity for public comment, according to the lawsuit filed in U.S. District Court for the District of Columbia.***

 

Pay inequality wasn’t the only gender-related challenge on Sotomayor’s mind during the Brown discussion. She made a larger point about gender equality in the law:

“When I started, [law] firms of 300 and 400 had one or two female partners, and they were touting how progressive they were. What a joke, right? They told me that over time, we would reach equality. Well, I started in 1979, and there’s still only one-third women as federal judges, and we’re a lot of women in the profession. So, what’s happening?”

February 9, 2018 in Equal Employment, Judges, SCOTUS | Permalink | Comments (0)

Monday, February 5, 2018

MeToo Defendants: Winning by Quitting

Judiciary Closes Kozinski Misconduct Probe, Saying it "Can't Do Anything More"

The Second Circuit Judicial Council on Monday said it will take no action on a sexual misconduct complaint against former federal appellate judge Alex Kozinski because his retirement deprived the panel of any authority to “do anything more.”

 

“Because Alex Kozinski has resigned the office of circuit judge, and can no longer perform any judicial duties, he does not fall within the scope of persons who can be investigated under the [Judicial Conduct and Disability] Act,” the council stated in an order published Monday. 

 

Kozinski, a former chief judge of the U.S. Court of Appeals for the Ninth Circuit, was accused of sexual misconduct in December by six former clerks or staffers, including former clerk Heidi Bond. The Washington Post, which first revealed the misconduct allegations, reported that Kozinski showed them pornographic images multiple times in his court chambers.

 

The complaint filed against Kozinski and subsequently referred to the Second Judicial Council by Chief Justice John Roberts Jr. was based on The Washington Post allegations.

Kozinski announced his retirement, effective immediately on Dec. 18.

 

Katherine Ku, Pressuring Harassers to Quit Can End Up Protecting Them

Although the #MeToo movement is rightly being celebrated for bringing down men who have abused their power, many of these men are not at the end of their careers. Already, the process of salvage has begun. Talent agent Adam Venit, accused of groping by actor Terry Crews, had to relinquish his position as head of WME’s motion picture division, but he was back at the agencyafter a 30-day unpaid suspension. New York Times star reporter Glenn Thrush, accused of inappropriate behavior by four female journalists, has been reassigned from the high-profile White House beat but is scheduled to return to the newsroom this month, after two months’ unpaid leave and training, counseling and substance abuse treatment.***

 

[I]t appears that Kozinski’s future in the legal profession almost certainly will be decided without the benefit of a robust investigation. At some point, a law school dean may have to weigh whether to place him in a position of trust over budding legal careers. Law firms may need to assess whether he’d be a fair mediator or arbitrator for their clients’ disputes. And the people making those decisions will have to do so without knowing the full scope of his misconduct.

February 5, 2018 in Judges, Workplace | Permalink | Comments (0)

Tuesday, January 30, 2018

MeToo in the Courts: An Investigation into the Complaints

Joan Biskupic, #MeToo in the Courts: Sexual Misconduct Kept Under Wraps,  CNN Investigation

The abuse women have suffered in the nation's courthouses has been a largely untold story. And its system for complaints -- where judges police fellow judges -- is a world so closely controlled and cloaked in secrecy that it defies public scrutiny.***

 

Rarely do sexual misconduct allegations against federal judges become public, . . . as they did in late 2017, with myriad complaints against California-based US Appeals Court Judge Alex Kozinski that drew national attention in the current #MeToo moment, forcing his resignation....

 
CNN compiled and reviewed nearly 5,000 judicial orders related to misconduct complaints and available online over the past 10 years. The documents, covering an array of misbehavior beyond sexual misconduct, are remarkably short on details.
  
The CNN analysis found that:
  • Very few cases against judges are deeply investigated, and very few judges are disciplined in any way. In many years, not a single judge is sanctioned.
  • None of the actual complaints (more than 1,000 are filed annually) are made public. In the public judicial orders, claims are sparingly summarized, and accused judges' names rarely appear. Some orders refer to "corrective action" by a judge without saying what happened.
  • Judicial orders are dumped onto circuit court websites as a series of numbered files with no indication of the allegations, person complaining or outcome. The practice makes it even more difficult to identify the most serious misconduct cases hidden among the opaque lists of documents because each order must be opened and individually read to gain even minimal information about the nature of the complaint.
In the 12-month period that ended September 30, 2016, there were 1,303 complaints filed. Of those, only four were referred to a special committee for the most serious level of investigation, according to the Administrative Office of the US Courts. In 2015, of the 1,214 complaints, four went to a special committee.
  
Going back to 2006, fewer than 10 cases annually were deeply investigated and even fewer resulted in disciplinary action. In six of the past 11 years, not a single judge was reprimanded, suspended or otherwise sanctioned for misconduct.

January 30, 2018 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Monday, January 29, 2018

Judge in Gymnastics Sexual Assault Case Draws Criticism

I previously posted about the positive response to Judge Rosemarie Aquinlina's approach to the sentencing phase of the trial of Dr. Larry Nassar in the USA Gymnastics case.

Now here are the criticisms, particularly of the judge's personal comments from the bench.

HuffPost, There's a Line Between Justice and Vengance. Larry Nassar's Judge Crossed It.

Rosemarie Aquilina, the judge who presided over the astounding sentencing hearing of former USA Gymnastics team doctor Larry Nassar this month, has emerged as a heroine for victims of sexual assault.

 

Her decision to allow 156 women and girls to address their alleged abuser in court, with their emotional testimony streamed live across the nation, created an invaluable opportunity for catharsis, and directed vital attention to what is likely the worst sex abuse scandal in U.S. sports history.

 

But Aquilina’s manner during sentencing, in which she said she was honored to sentence Nassar to die in prison and suggested he deserved to be sexually assaulted himself, has raised questions about whether she overstepped her role as an impartial arbiter of justice.

 

It is not unusual for judges to use emotional language during sentencing, or to offer their frank opinion about what a heinous person they believe the defendant to be, based on their criminal conduct. That’s not inconsistent with impartiality, so long as the judge’s opinion is drawn from the relevant facts in the case, and not extraneous factors, such as the race of a defendant.***

 

Jonathan Jacobs, director of the Institute for Criminal Justice Ethics at John Jay College of Criminal Justice, said he was surprised by Aquilina’s remarks on the Eighth Amendment, given her lengthy legal experience. (She was elected to the 30th Circuit Court in Ingham County, Michigan, in 2008.)

 

Jacobs said her comments could be construed as showing a sort of animus toward the defendant, and speculated that Nassar’s attorneys might try to use the remark to get leverage in whatever appeal they make.

Professors Charles Geyh, Brenda Smith, Robert Schuwerk, Stephen Gillers also weigh in.

The Atlantic, Where Nassar's Judge Went Wrong

Vox, Judge Rosemarie Aquilina Crossed a Line in Larry Nassar's Sentencing Hearing

But no matter how good Aquilina’s intentions, for a judge to make herself the face of a social cause poses a threat to the fairness of our system. We rely on judges to ensure that people’s lives are decided by neutral, independent arbiters who impartially evaluate the evidence and apply the law. That’s the only way we can trust in a system that has such awesome power to take away people’s liberty.

 

To be clear, I am not challenging whether the sentence Aquilina imposed was the right call. The problem is not the lengthy sentence; it’s the way she positioned herself throughout the sentencing proceedings.

January 29, 2018 in Judges | Permalink | Comments (0)

Thursday, January 25, 2018

Using the Courtroom for Restorative Justice in the Gymnastics Sexual Assault Case

 The Doctor and the Judge (podcast)

Dr. Lawrence G. Nassar was lauded as the go-to doctor for the United States’ best gymnasts. After he pleaded guilty to multiple sex crimes, Judge Rosemarie Aquilina cleared her docket to give each of his accusers a chance to speak at the sentencing hearing. More than 150 women, including several Olympians, confronted Dr. Nassar in the courtroom and spoke of their abuse. It took seven days.

 

It was an extraordinary use of the courtroom — and a new way of thinking about justice.

 

On today’s episode: Emily Bazelon, who covers legal issues for The New York Times Magazine.; Makayla Thrush, a former gymnast who made a statement at the sentencing, spoke to Sabrina Tavernise, a Times reporter.

Victims in Larry Nassar Case Find a Fierce Advocate: The Judge

Judge Aquilina, who has now allowed nearly 140 girls and women, including several prominent Olympic gymnasts, to give statements against Dr. Nassar, leaned forward from the bench. She smiled at the gymnast, Bailey Lorencen, and delivered her own heartfelt statement in a manner and tone befitting a therapist.

 

“The military has not yet come up with fiber as strong as you,” Judge Aquilina told Ms. Lorencen, calling her a “heroine” and a “superhero.” She added: “Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.’ Thank you so much for being here, and for your strength.”

 

Belying the stone-faced image of dispassionate jurists, Judge Aquilina has emerged as an unusually fierce victims’ advocate in a sentencing hearing that has drawn national attention for the scope of Dr. Nassar’s abuse and for the role that institutions like U.S.A. Gymnastics and Michigan State University played in employing him for decades.

 

Judge Aquilina’s vow to let every victim speak has also unexpectedly turned the hearing into a cathartic forum that has emboldened dozens of women who had remained silent to come forward with accounts of abuse by Dr. Nassar. Court officials initially had expected 88 young women to speak when the hearing began last week, but the number is expected to top 150 by the time these proceedings conclude.

 

Judge Aquilina, 59, who has written crime novels and served 20 years in the Michigan Army National Guard, has offered encouragement, consolation and tissues. She has made no secret that she wants Dr. Nassar to spend the rest of his life suffering in prison.

 

And, in an extraordinary session streamed live on the internet over several days, she has opened her courtroom to any victim who wishes to speak, for however long she wishes to speak. That goes for their coaches and parents, too.

 

“Leave your pain here,” Judge Aquilina told one young woman, “and go out and do your magnificent things.”

 

Stephen Gillers, a professor of law at New York University, said that although judges are often thought of as unbiased and impartial, it is important to remember that this is a sentencing hearing, not a trial. Dr. Nassar, who has already received a 60-year federal sentence for a child pornography conviction, pleaded guilty to several state sexual assault charges and will be sentenced after the “victim impact statements” are finished.

The Transformative Justice of Judge Aquilina

For survivors of rape and abuse, testifying about what they’ve experienced can be a brutal ordeal. They can be badgered and disoriented by defense attorneys on the stand, and have their characters closely prodded and maligned. But Judge Aquilina, again, upended this ritual, enabled by the fact that it was a sentencing hearing, not a trial. She turned obligation into empowerment. She told the women speaking, again and again, how strong they were, how powerful, how full of potential. After Mattie Larson spoke about how Nassar turned “the sport I fell in love with as a kid into my personal living hell,” Judge Aquilina commended her courage. “You are so strong and brave and you are not broken,” she said. “You are glued back together perfectly. Thank you for being part of the sister survivors. Your voice means everything.”

Judge Aquilina Garners Praise, Some Criticism in Larry Nassar Case

Though many have commended Aquilina for giving victims a forum to speak, one judge who has known her for years criticized her as showing favoritism.

 

Ingham County Circuit Judge William Collette said Nassar’s sentencing was “the most violative” sentencing proceeding he can recall. Collette questioned why Aquilina would allow women who are not part of the criminal case to address Nassar in court. He also found it inappropriate for her to tell Nassar, “I just signed your death warrant.”

 

“There has to be some semblance of fairness, no matter how much you hate the person,” Collette said.

 

“Doing justice is one thing," he said. "It is not a judge’s function to get people healed.”

January 25, 2018 in Courts, Judges, Violence Against Women | Permalink | Comments (0)

Tuesday, January 23, 2018

Justice Ginsburg on #MeToo and her Personal Experiences of Sex Discrimination

Justice Ruth Bader Ginsburg Reflects on the MeToo Movement: "It's About Time"

At the Sundance Film Festival on Sunday, Ginsburg had this to say about the #MeToo movement: "It's about time. For so long women were silent, thinking there was nothing you could do about it, but now the law is on the side of women, or men, who encounter harassment and that's a good thing."

 

Ginsburg isn't worried that the #MeToo movement might cause a backlash against women. "So far it's been great," she said. "When I see women appearing every place in numbers, I'm less worried about a backlash than I might have been 20 years ago."

 

Ginsburg recalled moments from her time as both a student and teacher when she experienced sexism and how she handled it. "Every woman of my vintage knows what sexual harassment is, although we didn't have a name for it," Ginsburg said.

 

She remembered one time when she sought help from a chemistry instructor at Cornell. The instructor gave her a practice exam, but it ended up being identical to the real thing. "I knew exactly what he wanted in return," she said. Taking matters into her own hands, she "went to his office and said, 'How dare you? How dare you do this?' And that was the end of that."

 

January 23, 2018 in Judges, SCOTUS | Permalink | Comments (0)

Tuesday, January 9, 2018

Oregon Justices Share Experience of Sitting on Majority Female Bench

Justices of the Oregon Supreme Court

Oregon Justices Share Experiences of Sitting on Majority Female Bench (video)

For the first time in state history, there are more women than men sitting on the Oregon Supreme Court.***

 

Justice Rebecca Duncan was the female justice to tip the scale after being appointed to the bench by Governor Kate Brown in May of 2017.

 

Duncan told FOX 12 the fact that the majority of justices are women is very meaningful, not only for her and the other women on the court, but also for women and girls across the state.

 

“It sends the signal that times do change and progress can be made,” she said. “I heard from people who were incredibly excited, and there were people who had gone to law school, or where law school wasn’t even really an option for them at the time they were entering their professional lives just because of what was viewed as available career paths for women, and they were so excited to see what had been a limit no longer existing.”

 

Justice Martha Lee Walters, Justice Lynn Nakamoto and Justice Meagan Aileen Flynn said they too have heard similar stories since that momentous day.

 

“Everybody wants to know that they’re going to be heard if they appear before a court of law.  What’s the most important thing to them? That they’re going to be listened to, that they think they’re going to have a fair hearing,” Walters explained. “So, if people see people on the bench who they think are similar to them in some way, it makes them think, ‘Oh, there’s someone who I think will listen to me.’ So, we need to have great diversity.”***

 

 

 

The four justices say they are honored to sit on Oregon’s highest court and hope this historic appointment encourages other young women to pursue similar interests.

 

“It’s nice to see that women have now gotten into more senior positions,” Nakamoto said. “That they are in a position to be on a high court."

 

There will soon be a fifth female justice in Oregon after Governor Brown announced Monday that Judge Adrienne Nelson from the Multnomah County Circuit Court will be replacing the retiring Justice Jack Landau.

 

The four current justices also told FOX 12 they are hopeful that majority-female supreme courts will one day be nothing notable at all and instead will be common.

January 9, 2018 in Courts, Judges | Permalink | Comments (0)

Saturday, December 30, 2017

Judges' Rules Help Establish Diverse Attorney Voices in Court

ABA J, Judges Push for Diverse Voices in Court

On the day U.S. District Judge Elizabeth Wolford received a copy of a New York State Bar Association report revealing that women participate in court at lower rates than men, the judge had a meeting to discuss a pending breach-of-contract case.

 

In addition to a male partner, each side had a female associate who, Wolford says, had clearly done the relevant research. With the report in mind, Wolford of the Western District of New York recommended the associates argue at the hearing—and they did.

 

“It was one of the best arguments I have had the privilege of presiding over,” Wolford recalls.

 

According to the July report, female attorneys account for just 25 percent of counsels appearing in commercial and criminal New York state and federal cases. In more complex matters, the percentage declines further. A 2015 ABA report found similar numbers in a study of the Northern District of Illinois.

 

In August, Wolford implemented a standing rule that encouraged young attorney participation. Such rules, which often offer oral argument as incentive, are one way the NYSBA report recommends the bench help address litigation’s gender disparities.

 

Wolford’s rule was inspired by similar guidelines set forth by Judge William Alsup of the U.S. District Court for the Northern District of California. He implemented his rule soon after taking the bench in 1999, but he also requires large firms to document how they will integrate junior attorneys into a case. Alsup says he does so for the good of the profession, as well as for up-and-coming lawyers.

 

“If we don’t train the next generation, then lawyering will suffer and the public will lose confidence” in the system, he says.

 

None of the rules mentions gender or race. But the measures can have the effect of increasing opportunities for women and minorities because they now make up a greater share of young attorneys. In 2016, according to ABA data, women composed more than half of matriculating students at all law schools, and minorities made up more than a third of such students. In 2009, 47 percent of all enrolled students were women and 23 percent were minorities.

 

Attorney Sharon Porcellio, who worked on the New York bar report, says she thinks the rules are an innovative way to address an age-old problem.

 

“Those of us who have been practicing for a long time had hoped that the pipeline theory”—the idea that increasing numbers of women and minorities in law school would lead to equal representation in practice—“would work,” she says. “The pipeline theory has not proven to work.”

December 30, 2017 in Courts, Judges, Women lawyers | Permalink | Comments (0)

Tuesday, December 19, 2017

The Judge Kozinski Sexual Harassment Saga: From Beginning to End

Initially, seven women -- three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused of Sexual Harassment

 

The first accuser, Heidi Bond's responded further on the details on her allegation.

Bond made 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 counseled against the potential consequences of steering women away from prestigious clerkships.

 

Additional women, including national reporter Dahlia Lithwick shared their metoo stories about Judge Kozinski.

Dahlia Lithwick, Judge Alex Kozinski Made Us All Victims and Acccomplices

Nine More Women Say Judge Subjected Them to Inappropriate Behavior Including Four Who Say He Touched or Kissed Them

 

Attorney Susan Estrich, also a feminist law scholar and professor at USC who wrote "Sex and Power" and "Sex at Work," represented Judge Kozinski.  She also formerly represented Roger Ailes in his sexual harassment case.  See NYT, The Curious Case of Susan Estrich

 

The case triggered much thought and commentary:

Dara Purvis, When Judges Prey on Clerks

Vivia Chen, Can We Get Rid of Alex Kozinski?  

Charlotte Garden, On Judge Kozinski and Open Secrets

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

Catharine Crump, Clerkships are Invaluable for Young Lawyers. They Can Also be a Setup for Abuse.

Debra Weiss, Will Complaints of Inappropriate Sexual Conduct by Kozinski have any Impact Impact

Judge Alex Kozinski's Opinion in a 2001 Sexual Harassment Case is Alarming 

 

As a result:

An inquiry was initiated.  Chief Judge Initiates Judicial Review of Allegations Against Alex Kozinski

Judge Kozinski retired on December 18, 2017. Alex Kozinski Announces Immediate Retirement Following Accusations of Sexual Misconduct

Chief Justice Roberts amended the law clerk handbook.  Newly Amended Law Clerk Handbook Affirms Harassment Complaints are Permitted.  "Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official," the handbook now says.

December 19, 2017 in Courts, Equal Employment, Judges, Workplace | Permalink | Comments (0)

Monday, December 11, 2017

Ninth Circuit Judge Kozinski Accused of Sexual Harassment

Three women law professors, including one former dean, and four women externs accuse US Court of Appeal Judge Alex Kozinski of sexual harassment 

Wash Post, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct

Seven Women Have Now Accused Judge of Sexual Harassment

NPR, Federal Appeals Judge Alex Kozinski Accused of Sexual Harassment

NYT, Federal Appeals Court Judge is Accused 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

Alison Frankel, Breaking the Law Clerks' Code of Silence: The Sexual Misconduct Claims Against Judge Kozinski

 

December 11, 2017 in Courts, Judges, Workplace | Permalink | Comments (0)