Tuesday, February 9, 2021
Natalie Gomez-Velez, Judicial Selection: Diversity, Discretion, Inclusion, and the Idea of Justice,48 Capital Law Review 285 (2020)
Improving the “diversity” of the bench often has been discussed as a component of judicial selection and presented as a goal that nominally has had the support of the mainstream legal community. Judicial selection methods that support fairness and impartiality are particularly important at a time when there is significant evidence of bias and animus on the part of the Executive. Today, there is deep concern that on the federal level, the goal of judicial diversity has been not only abandoned, but reversed. This article examines difficulty in improving judicial diversity despite oft-stated support for greater inclusion. It then discusses the role philosophical theories of justice embracing a “view from nowhere” has been used, erroneously, to link impartiality to colorblindness (read “whiteness”). It critiques this transcendental approach and offers a different philosophical “view from everywhere” which argues that the inclusion of persons representing diverse views and experiences supports impartiality and open-mindedness and should be a key consideration in improving justice and supporting greater diversity on the bench.
Monday, November 2, 2020
Podcast Discusses the Potential Implications and Impacts of the Appointment of Justice Amy Coney Barrett
I discuss the potential implications and impacts of the recent appointment of Justice Amy Coney Barrett to the US Supreme Court. Discussion includes the Court itself with shifting majorities and possibilities for court reform including court expansion, court reduction, term limits or retirement, or a bipartisan court. The discussion also delves into questions about potential substantive changes to the law of abortion, healthcare, same-sex marriage, and the death penalty.
Listen here: Women With Issues Podcast, Potential Impacts of The New Conservative Supreme Court
Monday, October 12, 2020
A review of my recent paper, Tracy Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently, forthcoming, William & Mary J. Race, Gender & Social Justice.
Sixth Circuit Appellate Blog, New Paper Reexamines Judge Florence Allen, Sixth Circuit Trailblazer
An old clerk’s tale refers to the arrival of Florence Allen (1884-1996) to her Sixth Circuit chambers in 1934. “It’s a Girl!” read a banner in the courthouse where Judge Allen would henceforth sit as the first female appellate judge in the U.S. judiciary.
That was but one of many firsts for the late judge, whose remarkable career was capped with a twenty-five-year tenure on the Sixth Circuit. Among other feats, Judge Allen was the first woman in America appointed prosecutor (1919), elected to a general trial court (1920), elected to a state supreme court (1922), and shortlisted for nomination to the United States Supreme Court (1938).
Judge Allen’s place in history has recently come under reexamination in an academic paper by University of Akron law professor Tracy A. Thomas. Released via SSRN on July 28, the paper chronologically surveys the life of Judge Allen, from her upbringing in a progressive and anti-polygamist Utahn family to her leadership in the women’s suffrage movement and onto her career in public office, which also featured unsuccessful campaigns for the U.S. Senate (1926) and House (1932).
Thomas ultimately concludes that Judge Allen “became a token” for the women’s movement by choosing to assimilate to a male-centric legal world, rather than challenge its foundations. Inadvertently, the law professor argues, this approach may have slowed the advance of women in the legal profession.
“She . . . molded herself in the male norm to prove that women could ‘think like a man,’ which to her meant crafting clear, objective, authoritative decisions unencumbered by emotion or her former pro-woman idealism,” Thomas writes. The paper later states that “[a]t the end of the day, more than tokenism then is needed in diversifying the bench.” ***
In her jurisprudence, Judge Allen defied simple labels. She called herself “liberal conservative” and issued opinions that at times pleased unions and other times employers. In a case involving the film The Birth of a Nation, Judge Allen received plaudits from the NAACP. She then lost the group’s support over Weaver v. Board of Trustees of Ohio State University (1933), a case in which Judge Allen declined to dissent from a per curiam holding that discrimination laws did not reach roommate relations.
Judge Allen’s moderate approach on the bench elicits reproach from Thomas, who notes that the judge’s example did not pave the way for more female judges: a second female appellate judge would not be appointed until 1968, and not until 1979 on the Sixth Circuit. Perhaps Thomas is right that more “zealous advocacy” or a more gender-centric approach would have helped accelerate this process, but perhaps not.
Whatever the merits of Judge Allen’s jurisprudence and character, the paper serves as a useful reminder of her captivating and colorful contributions to the judiciary, as well as the Sixth Circuit’s exceptionalism. A judicial pioneer whose sole biography is out-of-print and autobiography unavailable on Amazon, Judge Allen—thanks to Thomas—once again gets her day in the sun.
Tuesday, September 29, 2020
Erika Bachiochi, Amy Coney Barrett: A New Feminist Icon, Politico
National Review, Why Left Wing Feminists Hate Amy Coney Barrett
Amy Coney Barrett is Not a Feminist Icon, Huff Post
My own view is the same as that I explained years ago when asked similarly whether then-VP candidate Sarah Palin was a feminist. No. Feminism is not just girl power, or women doing things traditionally reserved for men. Individual achievement in a field or profession (sometimes called "I-feminism") whether Vice Presidential candidate or Supreme Court Justice is not feminism. But it is a consequence of feminism and the work it has done to eradicate barriers to women's achievement. Feminism is the understanding of the gendered hierarchies and stereotypes of law and society, a commitment to reforming those gender injustices, with the goal of women's full and equal autonomy, agency, and opportunity. Under this definition, Barrett is not a feminist.
Wednesday, September 9, 2020
Judge Mary Pat Gunderson, Gender and the Language of Judicial Opinion Writing, 21 Geo. J. Gender & Law 1 (2019)
The "#MeToo" Movement has forced corporations and the entertainment industry, as well as state and federal executive and legislative branch officials, to take a hard look at gender inequities and sexual harassment in the workplace. But, how does our judicial system fare? Is the one branch of government charged with being fair and impartial in the interpretation and application of our laws truly fair and impartial? Between 2010 and 2018, the Iowa Supreme Court was the only state supreme court in the country that did not include any women or people of color. Does it matter? Is there an institutional bias when only one gender reviews, decides and writes opinions? Is the lack of female perspective on the court detrimental to women?
This piece considers the real possibility of implicit gender bias in judicial opinion writing by deconstructing four recent Iowa Supreme Court ethics opinions written by an all-male Court wherein the survivors were female clients and/or intimate partners of the male attorney/abuser. Not only do the case results themselves raise questions but also the language those results are wrapped in may be even more revealing. This article examines both these results and language through the eyes of an Iowa woman who served as a trial court judge in Iowa's largest judicial district.
Thursday, September 3, 2020
The appointment of female judges in South Africa is part of the transformative constitutional project. This chapter examines the question of gender equality and specifically the contribution of female judges to the transformation of the judiciary in. It explores whether women judges have, in their judgements, conscripted and interpreted the Constitution to highlight and guarantee its transformative potential and possibilities. The chapter attempts to answer two questions: What difference has the cohort of women judges made since their appointment in significant numbers post-1994? What is the impact of women judges on constitutional jurisprudence with respect to gender equality? I conclude that despite some overlap between the opinions of the female and male judges, the opinions of the female judges differ in some significant ways from their male counterparts. This difference is located in the distinct way that female judges have framed the legal issues. The chapter has pointed out that considerable institutional obstacles continue to impede women’s appointment to the judiciary, but once on the bench, they really make a difference.
Tuesday, July 7, 2020
Dahlia Lithwick, Women are Being Written Out of Abortion Jurisprudence
It was hard not to miss that there were six separate opinions filed in June Medical Services v. Russo, the major abortion litigation of this year’s Supreme Court term, and that every one of those six separate opinions was penned by a man. When Roe v. Wade was written in 1973, the majority opinion also came from the pen of a man, Justice Harry Blackmun, who was at pains to protect and shield the intimate and vital relationship between a doctor (“he”) and the pregnant women. Of course, there were no women on the Supreme Court in 1973, so one could hardly have expected a woman to write the decision, or even for a man to write it with the experience of women at front of mind. Oddly, almost half a century later, none of the three women on the high court wrote a word in June Medical.
In the interest of being perfectly clear, I herein lay my cards on the table: I’m not a huge fan of this kind of essentializing and almost four years ago to the day I did a little touchdown dance when the opinion in Whole Woman’s Health v. Hellerstedt, the Texas abortion ruling with facts virtually identical to those from this year’s, was assigned to Justice Stephen Breyer. At the time I found myself moved by the fact that, as I wrote then, there was “something about Breyer, the court’s sometimes underappreciated fourth feminist, reading patiently from his opinion about the eye-glazing standards that Texas would have required in constructing an ‘ambulatory surgical center,’ that makes the announcement of Whole Woman’s Health just fractionally more perfect. This isn’t just a women’s case about women’s rights and women’s health. ***
There are no women in the plurality opinion in June Medical. There are a lot of physicians (mostly male) seeking admitting privileges at hospitals, and there are a lot of judges (mostly male) substituting their own judgment for the women who desire to terminate a pregnancy. And now there are a whole lot of Supreme Court justices, every last one of them male, substituting their judgment for doctors who tried to get admitting privileges and for the judgment of the other men who have myriad and complicated feelings about women who seek to terminate a pregnancy. While the dissenters are voluble about bits of fetal tissue (Justice Neil Gorsuch) and concern for women as victims of greedy abortionists (Justice Samuel Alito), their complete and utter silence about actual women and their actual choices and their lived lives and their hardship is impossible to escape. All these years later, they are being read out of a theoretical dialogue about which kind of balancing tests the men prefer to administer. It is into this woman-shaped silence that Ginsburg has poured out her own life experience, in cases about wage discrimination, contraception, and harassment, in so many other cases over her career. But it is into this woman-shaped silence that we will now fight the next abortion battles, over a constitutional right—as laid out in Roe, reaffirmed in Casey, strengthened in Whole Woman’s Health—which now comes down to a sort of elaborate agency review of whether clinics and physicians acted “in good faith” to comply with laws whose efficacy doesn’t much matter. And one cannot escape the feeling that we have not come a very long way from Blackmun’s deep regard for the wisdom of the male physicians in Roe, and Justice Anthony Kennedy’s deep regard for the wisdom of male Supreme Court justices in 2007’s Gonzales v. Carhart, as we limp toward a celebration of Roberts’ deep regard for precedent and process. The regard for a woman’s right to choose itself? That doesn’t even register as material.
Thursday, July 2, 2020
Challenging the Idea of Women Judging Differently: The Jurisprudence of the First Woman Judge, Florence Allen
I've just posted my recent research on Judge Florence Allen, a law review article previewing the book in progress.
Tracy A. Thomas, The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently (posted July 2, 2020)
A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.
This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.
Wednesday, June 10, 2020
In Disciplinary Proceeding Against Judge, Lawyer Argues Use of the C-Word for Woman Attorney was not Gender Bias, but Indirect Compliment
A part-time judge's use of the C-word doesn’t amount to obvious gender bias, his lawyer argued before New York's top court Tuesday.
Lawyer Michael Blakey told the New York Court of Appeals that a censure would be sufficient punishment for his client, Judge Paul Senzer of the Northport Village Court of Suffolk County, Law360 reports.
The New York State Commission on Judicial Conduct had recommended removal of Senzer for language in nine emails he sent while representing two clients seeking the right to visit their grandchild.
According to the commission, Senzer used the B-word to describe the client’s daughter, and the C-word to describe the daughter’s lawyer.
In one email, he referred to the daughter’s lawyer as a “c- - - on wheels.” In another, he referred to the lawyer as “eyelashes.” Senzer also referred to a court’s attorney referee as an “asshole” and the daughter and her ex-husband as “scumbags.”
Law360 covered Blakey’s argument, made in-person before the court judges, with the exception of one judge who participated remotely.
“We don’t think the gender bias is obvious and we don’t concede it. We could go into multiple interpretations of the words used, but I don’t think that’s necessary. I can just point out the worst one—the C-word,” Blakey said.
“It’s not a C-word by itself. It’s a term of art: ‘C on wheels.’ Which, obviously, refers to the aggressiveness of that attorney. It’s a left-handed compliment is one way to look at it,” Blakey said.
Blakey added that the language is “obviously inappropriate” but argued that its use didn’t merit removal.
Senzer was referring to lawyer Karen McGuire in the C-word email. She offered a sarcastic reaction when contacted by Law360.
“Isn’t it every female attorney’s dream to be called a c- - - on wheels? Right?” she said, spelling out the letters for the word. “Don’t we swear our oath and say, ‘This is what I want my legacy to be’?”
Thursday, May 28, 2020
Law & Society Association, Virtual Conference Program
Gender and Punishment
May 28 - 11:00 AM - 12:45 PM
Moving away from antiquated perspectives that neglected to study gender because there were "so few" women in the criminal justice system, these papers use feminist perspectives to examine disparate treatment, gender gaps, and punitivism.
Chair/Discussant(s) Rupali Samuel, LLM, Harvard Law School
|Gender Equality and the Shifting Gap in Female-To-Male Incarceration Rates
Presenter(s) Heather McLaughlin, Oklahoma State University
Co-Presenter(s) Sarah Shannon, University of Georgia
Negotiating Criminal Records: Access to Employment for Reintegrating Women in Canada
The Gap Between Correctional Law & Practice: An Intersectional Feminist Analysis
The Gendered Economy of Prison Intimacy
Moving Rules: Struggles for Reproductive Justice on Uneven Terrain
May 28 - 11:00 AM - 12:45 PM
Moving Rules will consider how recent developments in the struggle for reproductive justice in Argentina, Poland, Ireland and Mozambique contribute to our understanding of legal rules as complex entities that move as they are made. The papers will consider how rules move across space and time as they are made through feminist cause lawyering, witnessing legal reproduction, communist legacies, and oppositional legal consciousness.
Chair(s) Paola Bergallo, Universidad Torcuato Di Tella
Discussant(s) Ruth Fletcher, Queen Mary University of London
Building Democracy and Legal Change: A Study of Feminist Cause Lawyering in Argentina
We Were Communists - Historical, Political, and Ideological Determinants of Sexual Reproductive Rights
Witnessing Legal Reproduction
Sexual Harassment: Victims and Survivors
May 28 - 11:00 AM - 12:45 PM
Sexual harassment and violence are pervasive problems in various institutional spheres. Many victims and survivors are discounted and ignored. The papers in this session explore a range of questions involving victims and survivors of sexual harassment, such as: what obstacles has the #MeToo movement encountered when confronting sexual assault and harassment in the military? What roles do and should victim impact statements have in revealing systemic institutional sexual abuse in specific cases and shaping broader policy to meet the needs of victims? What role does time have in shaping a victim's experience of sexual violence? Does the law represent an adequate feminist response to such violence? How do innovative multi-media exhibits,provide new ways for observers and bystanders to listen to survivors' stories and experiences?
Chair(s) Julie Goldscheid, City University of New York
Discussant(s) I. India Thusi, California Western School of Law
#MeToo, Confronts Culture, and Complicity in the Military
From "Larry" the "Monster" to Sisterhood: What the Nassar Victim Impact Statements Reveal About Systemic Institutional Sexual Abuse
Multiracial Women, Sexual Harassment, and Gender-Based Violence
Sexual Harassment, Workplace Culture, and the Power and Limits of Law
Female Judges in Five Fragile States
May 28 - 02:15 PM - 04:00 PM
In post-conflict and transitional developing countries, situations of political rupture may create new opportunity structures that favour the entry of women into public positions of power. Post-conflict assistance often includes gender friendly rule of law reforms, and the conflict itself may have placed rights issues in focus. How these conditions affect women's access to, and utilization of, positions of judicial power has not received much scholarly attention. This session explores three main questions regarding women judges in five fragile and conflict-related states: Angola, Afghanistan, Guatemala, Haiti, and Uganda: (1) What are the main pathways of women judges to the bench? (2) What are the gendered experiences of women on the bench? (3) How and in what ways does having more women on the bench impact on judicial outcomes?
Chair(s) Paola Bergallo, Universidad Torcuato Di Tella
Discussant(s) Ulrike Schultz, Fernuniversitat in Hagen
Female Judges in Angola: When Party Affiliation Trumps Gender
Women Magistrates in Haiti: Challenging Gender Inequality in a Frail Justice System
Women on the Bench in Afghanistan: Equal but Segregated?
Women on the Bench in Guatemala: Between Professionalization and State Capture
Women on the Bench – Perspectives from Uganda
Tuesday, May 12, 2020
Call for Papers
AALS Section on Professional Responsibility 2021
Co-Sponsored by AALS Sections on Civil Rights,
Employment Discrimination Law, Leadership, and Minority Groups
Legal and Judicial Ethics in the Post-#MeToo World
The Section on Professional Responsibility seeks papers addressing the role of legal and judicial ethics in the Post-#MeToo world. This program calls for scholars to confront big questions facing the profession about sexual discrimination, harassment and other misconduct. In 2016, the American Bar Association amended Model Rule 8.4(g) to say that it is professional misconduct to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socio-economic status in conduct related to the practice of law.” Few jurisdictions have adopted this change, and some explicitly rejected it on First Amendment grounds. In 2019, the federal judiciary amended the Code of Conduct for U.S. Judges to make clear that misconduct includes engaging in unwanted, offensive, or abusive sexual conduct and to protect those who report misconduct, but some argue the reforms do not go far enough and they do not apply to state judges or to the U.S. Supreme Court. Congress held hearings on sexual misconduct in the federal judiciary in early 2020. Lawyers and members of the judiciary have avoided investigations into credible allegations of sexual assault, discrimination, and harassment by resigning their positions, only to move on in other positions in the legal profession and, in some instances, repeating the same misconduct. Headlines regularly feature attorneys and their involvement in sexual misconduct in the workplace and beyond, whether as bystanders, facilitators, or perpetrators. This program seeks contributions to address these complex and controversial issues. Panelists will discuss the role of lawyer and judicial ethics as a means to remedy the enduring sexual misconduct in the legal profession and beyond. Jaime Santos, founder of Law Clerks for Workplace Accountability and commentator for the acclaimed podcast Strict Scrutiny, is confirmed as a presenter. At least two additional presenters will be competitively selected from this call for papers.
Topics discussed at the program might include:
- Does ABA Model Rule 8.4(g) addressing sexual harassment run afoul of the First Amendment?
- Is ABA Model Rule 8.4(g) merely a values statement or is it a source for discipline?
- What obligations, if any, do disciplinary authorities have to investigate credible, public information about alleged sexual misconduct by the lawyers licensed to practice in their jurisdictions?
- Should regulators adopt new rules or policies to address sexual misconduct, including the ability of lawyers and judges to avoid investigations by resigning their positions?
- If other areas of law (criminal, civil) do not cover aspects of sexual misconduct, is there a role for professional conduct rules to do so because of the lawyer’s special role in society?
- What reporting obligations do law schools have as they certify students’ fitness in bar admission applications? How does this fit within the Title IX framework?
- Should ethical rules on sexual misconduct that apply to the federal judiciary also apply to the U.S Supreme Court?
- How should reporting systems be improved?
To be considered, please email your paper to Renee Knake, Chair of the Section on Professional Responsibility, no later than August 1, 2020 at email@example.com Preference will be given to completed papers, though works-in-progress are eligible for selection. The Call for Paper presenters will be responsible for paying their registration fee and hotel and travel expenses. Please note that AALS anticipates that the Annual Meeting will go forward (https://am.aals.org/), and the theme is The Power of Words.
Tuesday, May 5, 2020
Until recently, few knew the story of Jean Hortense Norris, her life, lawyering, and judicial role adjudicating cases of alleged “fallen women.”
[I]hus, it may have seemed unlikely when about a decade later Mrs. Jean Hortense Norris—who continued using her married name—managed to graduate from New York University Law School to become one of the city’s first women lawyers and a leader in feminist legal activities, including representing defendants accused of prostitution in New York City’s Women’s Court. It may have been even more astonishing that ten years after joining the bar she was named New York’s first woman judge, appointed to serve in the same Women’s Court where she previously defended alleged wayward women. And they may have become most shocked of all when, a decade after that, she was the focus of a high-profile investigation for unfair treatment of the accused sex workers before her, leading to what has been described as another downfall—her public removal from the bench in 1931 for being “unfit.” Or, perhaps these things did not surprise those closest to her at all.
Previous scholarship largely focused on her alleged misconduct as a jurist and official fall from grace. My prior Kansas Law Review article, Fallen Woman (Re)Framed, sought to surface and document more about Jean Hortense Norris—including details about her work as one of this country’s first practicing women attorneys and actions as a feminist legal activist even from the bench.
This said, as noted in that work, its more holistic telling was not intended to absolutely absolve Norris as a jurist. Rather, it promised future presentation of at least some additional facts about the judge and her life—including evidence that Seabury and his staff apparently did not investigate or introduce. This essay offers that expanded record. Exploring two different avenues of investigation that were overlooked by Seabury’s formal proceedings—or any other it seems—as postscript, this additional account may raise more questions than it answers.
All you have to know about Klausner’s ruling is that it leads with and lingers on the men’s national soccer team and what it doesn’t get. You stare at the page, mouth agape, wondering whether your eyes are seeing right. Why, you wonder, is Klausner going on about men? Where are the women? Where are Megan Rapinoe and Carli Lloyd?
Ahh there they are. On Page 3. Halfway down.
As you read on, you realize that Klausner has not really ruled here. He has just stewed. For 32 pages he mulls with an ill-concealed agenda over the nerve these women had to ask for things. Things the men don’t have. Things that have nothing to do with the case.
If you had to summarize the ruling in a sentence, it would be this: The real victims are men.***
Klausner has gone one better than U.S. Soccer officials, who at least are up front in their sexist argument that the women’s game is inferior and so players aren’t entitled to more. Their counsel literally argued “market realities are such that the women do not deserve equal pay.” Former chief Carlos Cordeiro flatly admitted in 2017 in a public statement, “our female players have not been treated equally.”
Which provokes Klausner’s most offensive contortion of all. Just because U.S. Soccer officials admitted that women players are paid less “does not make it true,” he writes.
See also Wash Post, Judge Rules Against U.S. Women's Soccer Team in Equal Pay Dispute
In a ruling delivered late Friday, Klausner sided with the players’ employer, the U.S. Soccer Federation, which argued the claim of unequal pay based on gender discrimination should be dismissed.Klausner ruled that the players’ additional claims of unequal treatment in terms of travel, medical staff and training equipment can go forward. A trial is scheduled to begin on those questions June 16
Monday, April 27, 2020
Brooke Coleman, JOTWELL, The Real World: Reviewing Diane Wood, Sexual Harassment Litigation with a Dose of Reality, 2019 U. Chi. Legal F. 395.
Judge Wood is a beloved jurist and renowned civil-procedure expert. This makes her real-world take on the state of sexual harassment litigation a great read. Judge Wood reminds us that Title VII of the Civil Rights Act has been on the books for more than fifty-five years. As the #MeToo movement starkly revealed, however, Title VII and similar laws meant to prohibit sex discrimination in the workplace and beyond have not done the job. This is true even when there is Supreme Court precedent that should be working. Cases such as Meritor Savings Bank v. Vinson (recognizing harassment in the absence of a quid pro quo) or Oncale v. Sundowner Offshores Services, Inc. (recognizing sexually harassment by a person of the same sex) have been in place for decades. But Judge Wood shows that in the real world, “even blatant cases of sexual harassment frequently fail” in our federal district and appellate courts.
To unpack why, Judge Wood surveys a set of Seventh Circuit sexual harassment cases. The cases are startling. First, lest anyone think that corporations and individuals are routinely slapped with sexual harassment lawsuits over “innocuous or misunderstood” behavior, these cases prove the opposite. The stories are harrowing. One female employee endured repeated sexual advances by her supervisor, including an episode where he followed her while she was on a walk and grabbed her. Another female worker was told by her supervisor that he could see down her blouse during her interview. That supervisor also repeatedly said things such as, “You know you want me, don’t you?” And still another male supervisor grabbed a female employee’s breasts and buttocks and, on another occasion, simulated a sexual act on her while holding a zucchini between his legs. In all of these cases and most others Judge Wood details, the female employees did not prevail.
Judge Wood explains that while her data are not comprehensive, these cases provide a unique window into how sexual harassment cases are handled in the real world. Sexual harassment cases are under-reported, and even when a court case is filed, it often settles. Thus, the cases in her survey represent the small number that proceed to summary judgment or trial. In many of these cases, the parties appealed on an agreed factual record. This provides interesting insight. The agreement on the facts reveals what is actually occurring in the workplace. And the trial and appellate courts’ responses, as detailed in their opinions, provide a better sense of why these cases are unsuccessful.
What Judge Wood observes overall is that substantive and procedural blockades, combined with judicial skepticism of sexual harassment claims, render even the most dreadful of sexual-harassment cases dead on arrival.
Monday, July 29, 2019
The Cleveland Plain Dealer has some recent articles highlighting Judge Florence Allen and calling for her recognition. Allen is colloquially known as "the first woman judge" as she was the first woman elected to a trial court of general jurisdiction (Cuyahoga County Court of Common Pleas, Cleveland), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit, 1932), and the first woman shortlisted for the U.S. Supreme Court.
Andrea Simakis, Before RBG, A Cleveland Judge Made History
Allen is the subject of my current book project, "'A Manly Mind': Judge Florence Allen, The First Woman Judge." The book is an intellectual biography of this famous first, seeking to exploring her ideas, motivations, and jurisprudence. I've spent two years reviewing the historical and legal archives, and now am writing in earnest. A shorter journal article summarizing some of the findings from the research and on Allen's life will be forthcoming in the journal of the new Ohio Legal History Project, an initiative of the Ohio State Bar Foundation.
Florence Allen was an icon of the woman's suffrage movement as both an activist and an advocate. Her suffrage work led to her inclusion as one of the inaugural members of the Social Justice ParkSocial Justice Park, in Columbus, Ohio. Allen was a moderate, believing strongly in the nonpartisan nature of the judiciary, tempering her decisions with logic and reason, and searching within the system for a practical solution. She prided herself on hard work, logic and intellect, and rejected society's limited role for women.
Friday, May 17, 2019
Study Examining Whether Women Judges are More Likely than Men Judges to Affirm Reproductive Health Rights
Michele Goodwin & Mariah Lindsay, American Courts and the Sex Blind Spot: Legitimacy and Representation, 87 Fordham L. Rev. (2019)
We argue the legacy of explicit sex bias and discrimination with relation to political rights and social status begins within government, hewn from state and federal lawmaking. As such, male lawmakers and judges conscribed a woman’s role to her home and defined the scope of her independence in the local community and broader society. Politically and legally, women were legal appendages to men—objects of male power (vis-à-vis their husbands and fathers). In law, women’s roles included sexual chattel to their spouses, care of the home, and producing offspring. Accordingly, women were essential in the home, as law would have it, but unnecessary, and even harmful and sabotaging, to a participatory democracy.
Building from two years of empirical research and examining each federal appeals court’s record on abortion and each judge’s vote on a particular case, this project studies whether women are more likely than their male counterparts to affirm reproductive health rights. We examined 302 cases across each federal appellate circuit, including the District of Columbia and the Federal Circuit. Our findings have both normative and sociological implications. This project tells an important story about the composition of the federal appellate judiciary and the slow climb for women, including women of color, within the elite branches of the courts. This is a story expressed in numbers and it reflects the historical marginalization of women within the law and the problem of homogeneity in the courts.
Thursday, April 25, 2019
Kathryn Stanchi, Bridget Crawford, & Linda Berfer, Why Women: Judging Transnational Courts and Tribunals, Connect. J. of Int'l Law (forthcoming)
Calls for greater representation of women on the bench are not new. Many people share the intuition that having more female judges would make a difference to the decisions that courts might reach or how courts arrive at those decisions. This hunch has only equivocal empirical support, however. Nevertheless legal scholars, consistent with traditional feminist legal methods, persist in asking how many women judges there are and what changes might bring more women to the bench. This essay argues that achieving diversity in international courts and tribunals – indeed on any bench – will not happen simply by having more female judges. Instead, judges with diverse perspectives and life experiences, regardless of their gender, will make a difference in the substance and form of judicial decisions.
This essay makes two contributions to the dialogue about judicial diversity. First, the essay posits that the overall justice project would be better served by abandoning binary categories like “men” and “women” in favor of recognizing that there is great diversity in both sex (however measured) and gender identity (however expressed). Framing any policy discussion in terms of “men” and “women” will fail to account for biological variety, individual difference, diverse gender identities, multiple sexual orientations, and the significant role that law and society play in constructing these identifiers.
The essay’s second intervention employs an expansive view of feminism as a broad justice project to consider that multiple facets of a judge’s lived experience, identity and perspective inform decision-making. Bias and elitism in legal education and the legal profession occlude the judicial pipeline. Instead of carrying a flag for more “women” in the judiciary, advocates for more diverse courts and tribunals should focus on elevating those with the least professional capital: people of color, low-income people, immigrants, graduates of non-elite schools, professionals from rural areas, and people with non-cisgender identities, to name a few groups. Adding more women to the bench may seem to be an immediate solution, but it will not achieve the goal. Attaining true diversity will be more difficult.
Thursday, April 4, 2019
Linda Greenhouse, Why R.B.G. Matters, NY Times
For the judicial icon otherwise known as R.B.G., Justice Ruth Bader Ginsburg’s past few roller-coaster months have included being lionized by Hollywood, laid low by cancer surgery, and most recently issuing one of the Supreme Court term’s more important decisions, placing limits on civil forfeiture, within a day of returning to the bench. People who know almost nothing about the court and can’t name another justice know her name. In a celebrity-saturated age, she is one of the culture’s most unlikely rock stars.
Yet for all the accolades that have come her way, I’m willing to bet that among the most meaningful to her is one that doesn’t even mention her name. I’m referring to the decision last week by a federal district judge in Houston that declared the current male-only draft registration system to violate the constitutional requirement that the government treat men and women equally.
Justice Ginsburg’s influence shone through the spare and refreshingly direct 19 pages of Judge Gray H. Miller’s opinion. He held that the old arguments against registering (and theoretically drafting) women accepted by the Supreme Court when it last considered the question 38 years ago no longer apply now that women are welcomed by the military and eligible for all roles, including combat positions, for which they meet the sex-neutral qualifications.
As might be expected in a case dealing with women in the military, Judge Miller quoted liberally from Justice Ginsburg’s 1996 opiniondeclaring unconstitutional the exclusion of women from the state-supported Virginia Military Institute. Any justification for excluding one sex or the other “must not rely on overbroad generalizations about the different talents, capacities or preferences of males and females,” Justice Ginsburg wrote in one passage Judge Miller cited.
What really caught my attention was how, beyond the V.M.I. references, Justice Ginsburg’s pre-judicial career is embedded throughout Judge Miller’s opinion, National Coalition for Men v. Selective Service System. It’s not that Judge Miller directly cited many of the cases that the young lawyer Ruth Ginsburg won, and in which she methodically showed the nine men of the 1970s Supreme Court how to construct a jurisprudence of sex equality. Rather, he cited the cases that built on the cases that relied on Ruth Ginsburg’s Supreme Court victories. Reading his opinion is like opening a set of Russian dolls, each one nested inside the one that just opened.
Friday, March 15, 2019
The federal judiciary will change its response to workplace sexual misconduct charges effective immediately, the policy-making body for the federal courts announced today.
It is itself “misconduct not to report misconduct,” Chief Judge Merrick Garland, of the U.S. Court of Appeals for the D.C. Circuit, said in a press briefing following the bi-annual Judicial Conference meeting.
The changes clarify what behavior is prohibited, address informal methods to report misconduct, and provide for training mechanisms to educate employees on prohibited behaviors, said Garland, who heads the Executive Committee of the Judicial Conference.
The changes stem from a June 2018 report Chief Justice John G. Roberts Jr. commissioned after sexual harassment allegations against then-Ninth Circuit Judge Alex Kozinski emerged. Kozinski has since retired.
Roberts’ year-end report detailed the steps the judiciary has already taken to address concerns in the #MeToo era, including the creation of a working group to address inappropriate workplace conduct for law clerks and court employees.
The working group made the recommendations implemented today and Garland said it will remain in place to “keeps tabs” on the judiciary’s progress and perhaps make suggestions in the future.
The codes of conduct don’t officially apply to Supreme Court justices, but they have previously said they consult and follow them.
Justice Elena Kagan said during a budget hearing March 7 that Roberts is currently studying whether to develop a code of conduct that applies specifically to Supreme Court justices. It’s something that’s being “very seriously” weighed, she said.
When voters elected the first judges to Louisville's new Jefferson District Court in 1978, only two were women.
Now, only two are men.
Women hold 32 of the 40 judgeships in Jefferson County — including 88 percent of the seats on District Court. And women have vanquished men in 15 of the last 17 head-to-head judicial races.***
Why do female candidates fare so well in judicial races? Some scholars say it's because voters often know little about those running and rely on stereotypes to make their choice.
Among them is the notion that women will be "more honest and have higher integrity" on the bench than men, said Brian Frederick, chair of the political science department at Bridgewater State University near Boston.
Male candidates pay a price because men historically have dominated politics and are seen as more like likely to use the system to enrich themselves, he said.
"Women are not seen as part of the system and are seen as less corrupted by it," Frederick said.
Laura Moyer, political science professor at the University of Louisville who has studied judicial elections, said gender is especially important in non-partisan judicial elections because voters cannot fall back on their party affiliation.
Gold puts it more simply: "I don’t think men vote for men, but women do vote for women."
Jefferson County wasn't the only place where women candidates for judge cleaned up at the polls in November, aided by the #MeToo Movement and a backlash against President Donald Trump:
- In Houston, 19 women — all African-Americans — running on a campaign they called “Black Girl Magic Texas,” won seats on civil, criminal, family and probate courts in Harris County.
- In Akron, Ohio, the Summit County Common Pleas court, once all male, became all female when two women beat their male opponents. “The two men are going down in flames,” said candidate Tom McCarty, whose wife, Alison, was already on the court. [Akron! That's my backyard]
- In Brooklyn, New York, after voting six women to the bench in 2017, voters elected another all-female slate of three.
Still, even though women account for half of all law school graduates, only about one-third of the 10,000 state court judges in the U.S. are female, according to the American Constitution Society.
District Judges, Jefferson County, KY