← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
#MeToo in the Courts
01:03:12
What’s next, and what’s needed, in the wake of sexual harassment claims concerning the judiciary?
Loading summary
Transcript67 lines
- [00:16]
A
Hi, and welcome to Amicus, Slate's podcast about the law and the courts and the U.S. supreme Court. I'm Dahlia Lithwick, and I cover the courts for Slate, and this is our very last podcast of 2017, and we want to take a moment to wish you and yours a happy and gentle holiday season. While this is technically a show about the Supreme Court, this week it almost had to become a show about something else. And that's because last week I myself became a part of the story of Judge Alex Kaczynski, who retired from the Ninth Circuit Court of Appeals early this week amid claims of inappropriate behavior. Comments and touching those claims first appeared in the Washington Post and then under my own name at Slate magazine. I came to this story very reluctantly, and I've been careful not to talk beyond the column. I wrote in part because journalists don't become journalists to ever become part of the story. That said, it seems almost akin to malpractice not to address the continuing story. And so this week's show is going to try to make sense of some of it through the lens of MeToo, through the lens of the legal profession, lawyers and the courts. And so we're going to be speaking to Emily Murphy and Leah Lipman, both of whom were named in the Washington Post pieces on Judge Kaczynski. We'll also later on talk about what has and has not happened at the Supreme Court in 2017 and what's going to happen in 2018. But first, we wanted to talk to Heidi Bond. Her story about Judge Kaczynski and the contemporaneous post that she put up on her website, which we will post on the show page, told the story of her entire clerkship of Judge Kaczynski in 2006, 2007. Heidi claimed that the judge showed her porn and forbade her from reading what she wanted to read. It is a harrowing account, and I think it really started the ball rolling on a conversation that needed to be had about how we clerk in America. Heidi went on to clerk for Sandra Day o', Connor, for Anthony Kennedy at the Supreme Court. She's a published novelist under the name Courtney Millan. Heidi has a degree in theoretical physical chemistry from the University of California at Berkeley, and she graduated summa cum laude from the University University of Michigan Law School. One caveat in her post, Heidi was really explicit that she does not want to talk about herself in Judge Kaczynski anymore, and we wanted to honor that here on the show. So if you haven't read her post, you should probably do that. And finally, just in the interest of full disclosure, I need to add that I did not know Heidi Bond two weeks ago, but we have spent an awful lot of time on the phone this week for which I am deeply grateful. So, Heidi Bond, welcome to Amicus.
- [03:03]
B
Thank you for having me, Dalia. It is nice to be here.
- [03:06]
A
Good. Well, I want to start by asking you the question that everyone asks me, which is what is this clerkship of which you speak? I think if people didn't clerk on the courts, they have no idea that there is still a relationship in America that looks like a kind of feudal apprenticeship. Can you help listeners understand what what a clerkship is and why it's different from anything else? There's no analog, really, in other professions, right?
- [03:36]
B
Well, I think there are analogs, actually. So this is the interesting thing. I think that there are some very strong similarities between the judicial clerkship and say, for instance, someone who decides to get a PhD and has a graduate advisor in some fields. That advisor is a very weak advisor in some, particularly science. At least my experience was a graduate advisor is all encompassing because the graduate advisor pays your salary, determines what you work on, decides if you can publish a paper, decides if you can graduate. And there are similarly abusive stories that show up in Graduate Advisor. Sort of like you see the same thing, but the basic idea is when you have a judge and the clerk, the clerks assist the judge in researching the cases that come before them, writing bench memos on issues to provide advice to help draft opinions. In many cases, clerks function as sort of additional hands, bodies, minds for the judge to assist them in their duties. And if you're ever one of those people who wishes that you had like three more of yourself, that's kind of what a clerk is supposed to do. They're supposed to be the self that can do all the things that you wish you didn't have to do so that you can get to the really important stuff.
- [05:01]
A
And a clerkship generally lasts one year, and judges have three, sometimes four clerks and you don't publish under your own name that year. That year you may be drafting opinions that someday go up under your judge's name. And I think the other thing that folks don't exactly understand unless they're really in this world about a feeder judge, what does it mean to be clerking for a judge who has incredibly high placement rates at, say, the Supreme Court?
- [05:37]
B
Well, a feeder judge is somebody who tends to send a larger number of their clerks onto Supreme Court later on. And there's a Couple of things that are encompassed in that. A lot of people think it's like a purely recommendation based thing, that if Judge A says to a Supreme Court justice that they have a relationship with, that they should hire this person, that it happens. And that's definitely a part of it. But I think there's some other parts of it that sort of go maybe not unnoticed, but people don't pay as much attention to it. The other. Some other parts of being a theater judge. Theater judges often know very well what sort of clerks certain justices are looking for. And it's not that they necessarily hire people with that in mind, although that happens sometimes. They also, you know, like Kaczynski would have binders on every Supreme Court justice he'd ever sent someone to. And if you got an interview, you would spend weeks prepping to learn how to position yourself, to appear to be the ideal clerk that that person wanted. And, you know, you would go in knowing every kind of question that was going to be asked, exactly what they were looking for in the answers and so forth. And in addition, there's also sort of an expectation that once you were upstairs, which is what they call the Supreme Court, once you were upstairs, that you would reach out in turn and do everything you could to try and help your judge place additional clerks on the court.
- [07:12]
A
And again, I think this requires a little unpacking for lay listeners. But the Supreme Court clerkship, that's the golden ticket in our world, right? I mean, that's, it's, there's signing bonuses there. You're making your own destiny. I mean, it's hard to overstate how much law schools and law professors and the whole legal world values each of those clerkships. That's. That's everything, right?
- [07:42]
B
Yeah, I guess it is. It's weird for me to say that because I did one and it doesn't. Well, whatever. I kind of had an idiosyncratic reaction, but yeah, it is, it is. It does open a lot of doors. It's interesting. I will go to clerk reunions and the people who I see there, you know, they're running the country. They're Solicitor Generals, they're, you know, law professors, they're judges, they're everything.
- [08:10]
A
So, yeah, I want to ask you this question, and I don't know how you want to answer, but you certainly didn't go on to become a judge or a law professor or a Solicitor General.
- [08:23]
B
I was a law professor for three years, actually.
- [08:25]
A
Where did you teach?
- [08:26]
B
I was at Seattle University.
- [08:29]
A
But you've kind of invented a Whole other career for yourself? Partly, I think. Well, you tell me why you left the track that you seem to be on and how you found yourself to where you are now.
- [08:45]
B
It really is kind of multifaceted. So in part, I think what happened was that my reaction to what happened with the Katinski clerkship was one where I remember in law school I used to love every aspect of law and I kind of lost the ability to enjoy some of it, if that makes any sense. And that loss of enjoyment had some pretty wide ranging impacts. I could still do it, I was still effective. I could think about things, but I just didn't want to anymore. And so one of the things I started doing was I started writing romance novels. And I specifically started doing that for a number of reasons, but one of them was that my guides told me not to read them anymore. And yeah, so I started reading my McDonald and here I am 10 years later. It's kind of a long path to describe, but you know, it's actually really fun.
- [09:47]
A
I think you have the best job in the world, I think. I mean, that is the golden ticket. I think one of the things that I've learned this week talking to other folks who dropped out, is that lawyers are so risk averse that stepping off the path is terrifying. And then each of the folks I've talked to has said, oh no, my life is vastly better now. So I think actually you stand as a kind of, oh, we don't need to do this exactly the same way it's been done before. In your post you were pretty clear. I do not want to talk about Judge Kaczynski anymore. There are some big structural changes I would like to see made to have this thing have meaning to me. Can you talk a little bit about what some of those changes are that you think need to be made?
- [10:40]
B
So first of all, I think that there needs to be some kind of a real procedure for what to do if there is a claim of sexual harassment against a judge by some kind of court employee. And as far as I know, the only procedure that's available now is to hire some sort of a misconduct hearing. And that's kind of a nuclear weapon. And in fact, most clerks would find it almost impossible to do so. Because this is your first job out of law school, many students who graduate now have six figures in debt, and that's probably the first figure, may not even be a one anymore. That's not something where you can just say, well, you know, I'm going to walk away and not get a recommendation for my judge. And it's almost certainly true that if you make your judge go through a misconduct hearing, what are you going to do? Oh, also, could you please call these people and tell them that I would be a good employee? I mean, so that's difficult. And I think there needs to be sort of like, graduated responses where you can maybe have some kind of a discussion that goes in place. So that's thing number one. I think there needs to be a procedure. I think you need to be able to tell someone what's going on other than to say, okay, well, jump immediately to a misconduct. So there needs to be some kind of a real structure here. I'm not sure what that would be, but there needs to be some kind of a structure. So that's thing number one. As an aside, it would be interesting if a court chose to publish statistics on how many clerks for each judge somehow didn't make it through the year. Inevitably, you know, somebody has, like, a family issue or they become ill and they might have to quit. So, you know, everyone's going to have some degree of attrition. But if there's a judge that's having, like, you know, 25 to 50% of their clerks quit on a regular basis, that would be very interesting for clerks to know beforehand. So I throw that out there. I think more information might somehow. I also think that there's a great deal that can be done in the legal profession and in law schools to both teach students about what is potentially coming and also to handle it. So I would say, for instance, that when I was in law school, I had multiple people tell me that you take the first offer that comes to you. You don't have a choice. You know, this is the way it works. Too bad, you know, if you don't want the course with someone, you shouldn't interview with them. You know, setting aside the question of, well, what if you go and interview with someone and they make you feel equally uncomfortable? What do you do then? Well, too bad is apparently the answer that some people give. And I really think that we need to not tell people that. I think. I think we need to tell people that you have leverage and that all the arguments about why clerkships are good for your career are also arguments about why they can be bad for your career. And you should really consider whether you might not be better off saying, okay, well, I'm going to go work somewhere for a year and then apply for clerkships again and come back to this. It is okay to not do everything in the exact perfect Order that people say it is okay to say no. And if people tell you it's not okay to say no, I would question whether those people had your best interests at heart. I think that law schools often publish clerkship numbers, and there's no question that larger numbers look better, but that doesn't necessarily mean that larger numbers mean better outcomes for all the students. So I think it's important for law students to feel that they have choice. If they just have a bad feeling about something or they learn something after the fact, you should say no. Saying no is a good thing.
- [14:24]
A
The other thing that is so freighted in this relationship is the confidentiality problem. So we really do, when we take our clerkships, make certain representations about what we can and can't do. And I think you stipulate when you wrote about this that you get that that's for. There is a reason for that confidentiality, but then it's weaponized against you. Can you talk for a minute about the fix for that?
- [14:49]
B
Well, yeah. So the confidentiality problem is difficult because on the one hand, the reason behind the confidentiality issue is that you don't want clerks going around after the fact and saying, oh, well, this opinion that was written by Judge so and so at this time is really about the fact that, you know, his son was having a hard time in school and blah, blah, blah, blah, blah, you know, and I just made that up. That not based on any real anecdote that I've ever seen, but you understand what I'm saying, that you don't want people to look behind the opinion and the words of the court and say, oh, this is about some personal dispute and we shouldn't take it seriously. You want people to take the opinion of the court seriously. That is the statement of what the law of the land is. And I think it's very important for clerks to not undermine that in any way or to give other people ammunition to undermine it. On the other hand, I think you have to draw a line at some point, because if somebody says, well, this confidentiality rule means that I can do whatever I want to you in chambers, and you can never speak about it, that's clearly not right either. I think you have to trust judges to exercise good discretion as to what confidentiality is. And at some point, you do have to look at it and say, okay, that was not an appropriate use of your ability to command confidentiality. Where that line gets drawn can be kind of difficult, but there it is. I think it would be good to make it clear that harassment of any kind is not subject to confidentiality at all. And I believe that was added to the Law Court handbook.
- [16:32]
A
So so you just noted, and it's worth saying expressly, that the Federal Judicial center this past Monday actually did change the Law Clerk Handbook and inserted language saying that, you know, clerks are encouraged to bring such matters to the attention of an appropriate judge or other official. Now you've made the point. It doesn't help if you have to go up the chain of command. So that's something to think about. The other thing that did happen on Wednesday is Chief Justice John Roberts asked for a review of all of the judicial procedures for protecting court employees, including clerks. Do you get the sense from this I know also there was a letter from almost 700 former clerks and legal academics that went to the chief justice saying, we have to have this reckoning. Do you have a sense that the this reckoning is really happening, or do you have a sense that everybody gets to say, phew, we got rid of Kaczynski, that was an outlier, and now we can all pretend there are no problems? Or is it too early to tell?
- [17:35]
B
Heidi I think it's too early to tell. I personally really, really hope that the federal judiciary, of all people, cares about process and not about outcome, because there is no group of people in the nation who understands what process means more. Lawyers and judges are process people. We care about the processes. And, you know, there's a saying that hard cases make bad law. And the idea behind it is that sometimes you're not supposed to think about whether you got the right outcome. But do we have a process that in general is going to give us a more fair result than not? And I think, I hope that people were able to see that we have a process problem here and not just an outcome problem. I hope that people understand that there is far it's just unfathomable that there is only one person who is engaged in behavior that's inappropriate. And what we need to do is try and catch that behavior early on so that we don't have 30 years of complaints that end up festering all at once. Right now we do have a process for dealing with sexual harassment in the judiciary, and it apparently is get enough people to complain to the Washington Post to have them write an article about it. That is a deeply inefficient process, and it's a deeply unfair one in many ways. We need better processes that are fair for everyone involved. So, yeah, I have to say I kind of have faith that the judiciary of all people will care about process. Whether that faith ends up being misplaced, I don't know. But I want to give them a chance to secure and to make a difference.
- [19:32]
A
Heidi Bond was one of the first people to report on improper behavior from Judge Alex Kaczynski, and over the course of a week and a half, he has resigned from the Ninth Circuit. Heidi, I want to thank you on behalf of me and listeners to the show for I know what was very difficult and courageous decision this week and I wish you all the luck in the world. I agree with you. I think that the judicial branch is going to step up and fix this. So thank you for joining us.
- [20:08]
B
Thank you. Thank you for having me.
- [20:10]
A
Emily Murphy was one of the women named in the original Washington Post story. She was clerking at the 9th Circuit for another judge and reported on inappropriate conversations with Judge Kaczynski. Emily is now an associate professor of law at the University of California, Hastings. Emily, welcome to Amicus.
- [20:28]
C
Thank you for having me.
- [20:30]
A
Joining us as well is Professor Leah Littman. She teaches at UC Irvine, and she came forward last Friday in a follow up article about the judge she clerked for, Judge Sutton on the U.S. court of Appeals for the 6th Circuit and for Justice Anthony Kennedy on the U.S. supreme Court. So, Leah, welcome to the show as well.
- [20:51]
D
Thank you for having me.
- [20:53]
A
I wonder if you can each talk about what it is that allowed you to come forward. I know that everything that was hard for me as a journalist must have been exponentially harder for each of you because you teach law and because you're in this machinery. So, Emily, do you want to talk a little bit about what led you to put your name on this?
- [21:17]
C
Sure. I think it was actually the fact well, there were many factors, but the dominating one was the fact that I am now part of a faculty. I am not practicing law. I don't expect to appear before the 9th Circuit or frankly any other court anytime soon and to that extent feel, and I hope this is right, somewhat insulated from potential for retaliation. That's not to say I wasn't warned of that potential, but I knew I had the support of my school and having sort of talked to a few trusted people felt like it was something I was willing to put my name forward on and stake my credibility and put it on the line because of that sort of insulation within academia from direct backlash.
- [22:11]
A
How about you, Leah?
- [22:14]
D
So I actually do continue to practice and am hoping to appear before courts in the near and distant future. So as with Emily, I was and there was some concern about Potential retaliation, not just in practice, but also in academia. And when we say retaliation, that just doesn't mean kind of open antagonism, but also more silent distancing and undermining. But again, as with Emily, I was incredibly fortunate to have the support of my institution. Our now permanent dean I spoke with, and she encouraged me to do whatever I thought best. Rick Hassan, who appeared in the story with me and said he remembered a remark similar to the one I mentioned, is actually my official mentor. And I spent probably every day of the week between the first and second story on the first with him, and he just helped me work through what I was going to do. And I also spent a lot of time talking with the people I had confided in about the incident, and they, too, encouraged me to do what I thought best. I was also fortunate in coming second in that I did not have to be the first person to put my name on an allegation of sexual harassment. So it was easier in a lot of ways for me because of what Emily and Heidi Bond had done. And you too, Dalia.
- [23:55]
A
I wonder if I've been thinking this all week, and I want you to react. I keep looping in my head, how is this different from Anita Hill? How is this different from 1991? What's changed? And I think, and I don't know, you all are gonna have to correct me, but I think one of the things that's changed is that when Anita Hill sat in front of an all male Judiciary committee, even the Democrats didn't support her. We know now that just there weren't structures in place. Is one of the things that's changed that, you know, Leah, you're talking about having a woman Dean, I have a woman editor at my magazine. There are women like Kirsten Gillibrand and Amy Klobuchar who are saying to Al Franken, I'm sorry, no, I think I used to think we needed parity in order to get justice. Now I think maybe you just need enough women in key places that you can at least get the support as you go up the chain. Does that. Does that sound right, Leah?
- [25:00]
D
It certainly helps to have other women around and in positions of authority. I am not certain. I am quite as confident in feeling that without parody, there will be enough of a response to the behavior and reports that have come out. Because it is easier for me to do what I did and, you know, because of what people like Anita Hill did. And it should be easier still for the next generation of female lawyers and law students where they shouldn't have to figure out how to muddle through a workplace that is filled with gray areas and harassment. And so I hope we can get there and that we will get there, but I don't think we are there yet.
- [25:57]
A
Emily, you said to me earlier this week in a conversation offline, I thought we had parody. And that really resonated with me because I feel very much like I'm of a generation that, dude, I read Free to Be you and me in the bathtub when I was a little kid. Like, I knew what was going on. I just really thought we were there. And I wonder if you feel like, okay, well, that was a blip, but, you know, we're basically on solid ground. Or if this has rocked your world the way it's kind of rocked mine.
- [26:34]
C
This has continued rocking my world. That started being rocked, really, in graduate school when I first started to realize that what I had been told and what I had accepted in my youth and even, you know, my college education to some extent, was not true, that everything was cool and everything was equal. And, you know, reevaluating episodes from in school, from. From childhood, from high school through this lens of, you know what, that wasn't okay, and it was a problem. But there was. There wasn't parody, but there was a degree of being conditioned to believe that if you were part of the boys club, you were somehow exceptional. And it's pretty easy to fall into that trap that, well, this means this is actually still meritocracy and you can hang, you can be tough with the guys. And, you know, it's been a personal reckoning to realize that that's not true. It's system systemically not true. And it hurts women and has been hurting women forever. Even notwithstanding the amazing advances that women have made. I think our foremothers went through such terrifying overt discrimination, overt harassment, overt assault. A lot of it, though, went underground and has been continued to be kept underground by power structures that really do go all the way back to childhood. How schools, I think, respond to sex discrimination, how schools, how little girls are told, well, if he's being mean to you or if he's touching you in ways that you don't like, it means he likes you. I was told those things in middle school, in elementary school, by teachers, and it was the prevailing wisdom at the time. I don't fault any individual. But this is. I hope, I hope we're at a moment where things really will be different in the sense that we're having a cultural revelation that eyes are opening to say, actually, we're not at parity, we're not at equality. And we really tolerate a lot of disparate treatment, disparate impact, because we dress it up under the sort of rubric of sort of a fake meritocracy.
- [29:18]
A
I have been thinking all week about, I think Rebecca Traister made this point, but several people have made this point to me, and I think it's important that this isn't about sex. It's about employment. It's about work. And that we, the minute we get hijacked into a conversation about, you know, was it, was his hand on your breast or was his hand on your waist? Was it, you know, was it a threat? Was it a joke? That that's not a conversation that is. Has all that much utility at this moment. But the conversation you're. You're flicking at, Emily, where you're saying, this is about the workplace and how we work with each other. And I think it's doubly difficult in the culture of law firms and courts and law schools because they're such small c conservative enterprises and because, as you say, I think they really hold themselves out as pure meritocracies, but also maybe because they're so enmeshed with each other. I mean, law schools rely on, you know, the clerkship as a marker of their success. Judges rely on law professors. Law professors want to be judges. Clerks want to be law professors. I mean, there just seem to be all working in tandem in ways that make it almost impossible to get out from this general sense that at least some men still treat women in the workplace like they're the dessert cart.
- [30:41]
C
Emily I think that Leah's point about that, that is why parody really matters, is an incredibly strong one, that if we have a few women, token women here and there, we can sort of still have this culture of believing that it's really, truly all about meritocracy. We can have women not helping other women not recognize, you know, sort of believing, as I did when I was young, that I was special somehow and therefore didn't need to help others, which is something, again, something I'm ashamed of as an adult. Parody is probably the only way forward here. And that talent really is broadly distributed among men and women. And we have to look at how we nurture that talent and try to get that parody from early ages.
- [31:35]
A
Leah, do you have a sense that the reason this was a quote, unquote, open secret for decades is because everybody had a vested interest in covering for everyone else? And that's just the nature of the relationship between the legal academy and the law profession and the courts.
- [31:54]
D
I think it is partially that everyone has interests and everyone needs some sort of in and is looking for some additional boost for their career and their profile. And whether it's judges relationship to law schools or law school's relationship to judges, they can reinforce one another's power and access. So yes, it is partially a vested interest situation, but I also think another part of the problem is it's a collective action problem. Some of these incidents in isolation might not seem, and I don't think seemed at the time, reasonably so, worth raising a fuss about. And then when everyone is put in that situation, everyone is going to decide not to do something. Everyone is okay making it someone else's problem. But I think that's not an acceptable solution to arrive at because it is all of our problem. We are all part of the same institutions and the same profession and we have a responsibility to make that better.
- [33:12]
A
Talk a little bit, Leah, about the fixes we have seen put into place this week. We saw that the Law Clerk Handbook was amended to explicitly allow clerks to complain about harassment. We are seeing Chief Justice Roberts, who is, I think, issuing a genuine call for a review of the judiciary's procedures for protecting court employees. And then a letter from several hundred former clerks and others in the field calling on Roberts to do more. Are we going to see a sea change or is this going to be largely. Wow, dodged a bullet on that one. It all resolved nicely and business as usual.
- [33:59]
D
I think it really depends. I think the developments you pointed to, the Chief justice calling for a working group on addressing and preventing harassment in the judiciary and the modification to the Law Clerk Handbook are all positive indications and positive indicators that we are going to do something about the problem. I think it's probably worth emphasizing, however, that some of those changes were precipitated because a group of women got together and decided to make a push for it. That letter, signed by the hundreds of law clerks, was written and passed around by four women. And I think that that kind of reinforces something that you, Emily and I have alluded to, which is, you know, part of the burden of harassment is it's a drain on women's ability to do work. So the four women that organized and led that letter devoted their own time and expended their own CAT capital in saying this is an important issue. I need you all to take this seriously and let's do something about it. And I think that we run the risk of not doing enough to solve the problem, so long as we leave it to the group of people who have been most burdened by harassment to instigate and do the legwork in driving the solutions. Because the reality is that given the current structure of our institutions, our access, meaning anyone's access, our professional access, is still overwhelmingly dependent on men. And men have greater platforms and greater power than women. So long as that's the case, that is a condition that allows harassment to exist. So long as women are going to depend on men for power, access, platform and authority, that has to be part of the solution and part of the conversation. Enabling women, lifting them up and including them in all of the existing power structures that are overwhelmingly staffed by men because the scales have been tipped in their direction.
- [36:27]
A
Emily, what happens when we get to the Mike Pence rule where every male judge says, you know what, this is too hard, I'm just hiring female clerks or I'm just not going to have someone in my chambers doing work with me ever again. So I'm just trying to figure out how we reallocate burdens given the realities on the ground right now.
- [36:47]
C
I think that's such an important and hard question. And I have had conversations and private conversations with very close, very thoughtful male friends and who have expressed, not as their personal position necessarily, but sort of the concern that ends up with something like the Pence rule, which is, well, how do I know a woman is not about to destroy my career? Is essentially what it boils down to. But if I am say something a little bit wrong, and I have two reactions to that, one is we have to have a fair and honest discussion. And maybe that means having these discussions over and over again in private between people who trust each other to say, yes, you know, you now must bear the burden of thinking about what you say or how you present yourself for a little bit longer before you interact with a colleague. And that burden is fair to redistribute because women have been doing that in the professional workplace forever. And you, you should try to understand that. So, you know, I think that thoughtful people can come to appreciate that. And maybe those, like I said, those conversations have to happen in private, but there's also got to be public denunciation of anything like the Pence Rule. It's, I'm not an employment lawyer, but it's very clearly illegal to discriminate on the basis of sex and to restrict women. But that doesn't mean that men won't act in private. It may take a long, hopefully not too long, consciousness raising effort through these continued conversations to say, actually, it's not that you can't say anything nice to your female colleague or that she might destroy your career. It's that you might have to think a little more carefully about how your message is going to be received and to trust. We have to trust women. We have to trust that most women are not out to destroy anybody's career. They're just trying to advance their own. They're trying to do work that is important to them, that brings puts food on their table, that they've trained for, that they've studied for. We have to trust that that's where women's motivations, by and large, by the vast majority, are going to lie.
- [39:10]
A
Leah, do men have some obligation to say it can't only be the women who are leading this initiative?
- [39:18]
D
Yes, I think that they do. I'm okay saying that. And the reason why I'm okay saying that is because it is men who have benefited from a system that has been weighted toward them and they facilitated that system by not doing anything about it. I don't think anyone here, and I apologize if I am speaking for you both and saying something you don't believe, but I don't think that these men should be punished or lose their jobs. What I do think, however, is that they should should think about the kinds of things that Emily was alluding to. They should think about whether what they are saying or doing is making it more difficult for women to do their work and get their work done. And when they are exercising the power and privilege that they have and reaping the benefits of the advantages, maybe they could look to include women. I don't think it would be that much of an ask to ask male Kaczynski clerks whether they are appearing on a panel, whether they are appearing on a show to ensure that that show is not all male or predominantly male panel. I don't think that that would be that big of an ask because it's not zero sum. And there are some men who have stepped up when the conversations have broken down into women arguing that sexual harassment is a problem. And you will notice that when men step in, and this is something that a group of people on Twitter who tweet under the hashtag LadyLawyerDiaries have pointed out. When men step in, the conversation is taken in a new, more positive direction. It is much more hard to dismiss women's concerns when a man or two is willing to validate them. And I reaped a ton of benefit of that. Like not only when Rick was willing to put his name next to mine, but when Gil Seinfeld was as well. And that is also what enabled me to say and do something about this. I kind of wish that wouldn't have had to be the case, but it was. And I really appreciate that they were both willing to, you know, kind of step up to the plate and ensure that, you know, any risks I face were less than they would have been if it was just me.
- [41:56]
C
I want to. I want to step in and say this was not on the record, but the people who were validating me were also men. And I was very grateful for their integrity in doing so. And I understand the reasons they weren't on the record. And I would regretted having to involve them if it. If it came to. Or Steven still comes to that. But to echo that point, that that's very, very important.
- [42:27]
A
I would add my coda to that, which is. And I think I noted this expressly in my piece, that when I kept trying to check my own memories, including of things that happened a long time ago, I kept filtering it through the man machine, my male co clerks, you know, a male colleague who witnessed something. It was interesting because the more I pressed on my own memories and I started questioning whether I was remembering things, I would say, oh, but no, there was a man there and he saw it, and I'm going to turn to him. And I find that so, so profoundly weird. And as the week has gone on, weirder and weirder that I had to almost put on my man headphones and have these people in my ear saying, no, no, that happened. I remember it at the time, and I find that deeply destabilizing. I want to leave you both with one question that I'm trying to think through, and that is, we're process people, we're lawyers, and we like process. Is MeToo a process? It seems that MeToo is depending on where you are on the playing field. It feels kind of nutty. And yet it is clearly eliciting responses when legal processes break down. The media. I think Leah said this. You know, the media stepped in and me too, stepped in. I just wonder how sanguine. And we can start with Julia. You are about how these things are being processed and whether in the absence of something that looks like a process, we are having these one off correctives that aren't systemic at all.
- [44:13]
D
Yes. So I would love if MeToo was a process that was formalized and if our institutions were created and structured to have women who are harassed in mind. I don't think that is yet the case. And so what we are seeing is to use a term that is sometimes thrown around a second best process, a process that has been kind of outsourced to the media and sometimes bringing in the legal process. I'm mindful that there's a potential that judicial counsel investigation will proceed and I certainly don't think that that would be a bad thing. So, yes, it is a process. It's a partial and incomplete process. I did just want to say one other thing about the Pence Rule, though, which is, you know, to take a famous line and tweak it a little. The solution to sex discrimination, which is what sexual harassment is, is not to start discriminating on the basis of sex. The reality is that women's access to career opportunities is limited because we're forced to avoid predators, while men get access to that mentorship. And the Pence Rule just replicates that situation in another mechanism. So I hope that the men who are in power and have access are mindful of that and are also mindful of how easy it is for people with professional privilege to reproduce it. And I hope we can all lift one another up.
- [45:55]
A
Emily closing words on MeToo as a process solution to figure so much of.
- [46:03]
C
A process person too. And I agree with everything Leah said, but I see. I want to add that I think there's two sides to the coin. I think there's the processes that may need to be changed within institutions, within the law, perhaps about how to deal with sexual harassment once it's already occurred, and processes to advance women through things like the now named Mansfield rule being instituted at some law firms and some clients where women need to be affirmatively considered for people positions of leadership. Those pride processes can work too to achieve parity. But I think that the media may need to still play an important role because formal process is a very slow way to change culture. And changing culture may actually prevent these things in the first place. Process is really good for a remedy. Changing the culture may keep it from happening in the first place. To the extent that people are thinking about how to interact with each other because of what they read in the media, because of the conversations sparked by these stories that I think goes a long way towards preventing harassment from taking place in the first instance. So I hope I don't ever want to abandon process. I think due process is so important. I think that due process, like Leah said, the Judicial Council investigation may proceed, but it can't be the only way we rely on to change culture with the goal of prevention.
- [47:41]
A
Emily Murphy is an associate professor of law at UC California Hastings. Her work focuses on the intersection of neuroscience, behavioral science, and the law. Liam Littman is a professor at the University of California at Irvine. Her work focuses on federalism and federal post conviction review. And and to both of you, I thank you so very much for joining me on this really strange but I think critically important episode of Amicus. And I thank you truly for coming forward. I know it was hard. Thank you for being with us.
- [48:13]
D
Thank you.
- [48:14]
C
Thanks, Dalia.
- [48:16]
A
I wanted to take a moment to let you know about Slate's audio book club podcast. If you haven't heard it yet, Katie Waldman and a rotating cast of fabulous critics get together every month to discuss new and important books. Follow along by reading the book club selections and then listening to Katie and company holding lively, sometimes pretty heated debates. In this month's show, Katie is joined by Parul Seagal of the New York Times Book Review and writer and critic Megan o', Rourke, and they are dissecting Emily Wilson's new translation of the great Homeric poem the Odyssey. In our very last segment this week in the last amicus of 2017, we want to turn to amicus adjacent Mark Joseph Stern, who is my partner in crime at Slate. Mark covers the courts and the law and LGBTQ and pretty much I think all voting and everything hellish for Slate and has been my sanity this year. So, Mark, welcome back to the podcast.
- [49:17]
E
Thank you so much. Always a pleasure to be on and give you a dose of sanity and horror in equal measure.
- [49:23]
A
In equal measure. So, Mark, I'm trying to think about what listeners need to class as the big legal and SCOTUS stories of 2017. And I've got Neil Gorsuch, I've got free speech swallows everything. I've got voting Anthony Kennedy. Will he, won't he? What am I missing as the big, big 2017 things that you and I have talked about every single conversation we've had all year?
- [49:53]
E
Well, you know, nobody really cared about it when it came out, but I don't think we should leave off Trinity Lutheran, which was a pretty big decision at the end of last term, in which the court held that a state cannot lawfully bar religious schools from participating in these bids for public money. So this one religious school had wanted to bid to get money to resurface its playground, and the state said, no, you can't do that because our Constitution bars us from funding religious establishments. And the Supreme Court, by a rather surprising 7 to 2 vote, said, actually, yes, states are barred by the free exercise clause, from refusing to let religious establishments and institutions participate in these kinds of programs, excluding them from these public funding programs. And that is a pretty big deal, because even though this particular case only involved a playground, and indeed, Chief Justice Roberts really dwelt on that point in a key footnote in the case that Justices Gorsuch and Thomas refused to join, rather pointedly, the logic of the case really opens the door to some disturbing conflict, consequences, and as Justice Sotomayor pointed out in dissent, erosion of the separation of church and state. Because there are many state governments that do not want to fund religious programs, schools, institutions, in part because these schools and groups don't have to play by the rules that everybody else plays by. To give one example, a religious school has a right to discriminate on the, the basis of whatever it wants. And many religious schools do not accept or tolerate LGBT students. It's long been understood that if the government doesn't want to fund these schools, then, you know, it doesn't have to. Trinity Lutheran kind of calls that long standing principle into question because now we've discovered that somehow a religious school has a free exercise right to recruit, request, even demand money from the government. So I think one major, major story of 2017 that kind of slipped off the headlines quickly is that separation of church and state is not in very firm hands at the Supreme Court.
- [52:22]
A
And worth noting because I think it dropped off my list, too. We didn't talk about cake bakers. We didn't talk about looking forward crisis pregnancy centers and the free speech valence around that. So I do think generally the collision between the laws of the land and religious objectors and dissenters is, I think it is the story of 2017 and possibly 2018 and the ways in which speech has increasingly been weaponized. We were just talking right before the show, Mark, about the Trump administration and undocumented minors seeking, making lawful abortions and the ways in which this is now openly being discussed as a religious issue in the Trump administration. So. So it does seem to me that faith is, is in the front seat, right?
- [53:19]
E
Passenger seat, every single seat. And also hiding in the, in the engine somewhere.
- [53:24]
A
Yeah, in the gas tank.
- [53:26]
E
In the gas tank. Look, the Trump administration says it can, can block abortions for undocumented minors because the government doesn't want to be complicit in the abortion. And what does that mean? They literally don't want to allow it to happen. That opening the doors of the shelter to let the minor leave would make them complicit in abortion. That's a pretty radical argument, but it's actually not that much of an extension of Hobby Lobby, Right. In which these Hobby Lobby continually comes back to haunt us. Right. Hobby Lobby says, oh, well, the owners of a business don't want to be complicit in sin by allowing their own employees to access birth control through their insurance. That that's complicity as well. And of course, this complicity question comes up again in the cake baker case that you mentioned, Masterpiece Cake Shop, in which this baker in Colorado, Jack Phillips, says, you know, he doesn't want to be complicit in the celebration of same sex marriage or same sex union. He doesn't want to express any support for this union. And by baking a cake for the couple, not a cake that says congrats on your gay marriage, but literally just a basic wedding cake that that would coerce him into affirming the union somehow or participating in the wedding ceremony. And now in the abortion case out of California, you know, the state of California simply, simply wants crisis pregnancy centers to put up signs that convey factual information about state funded women's health services. And these crisis pregnancy centers, which many of which do not offer any kind of legitimate medical service, say that that violates their rights to free speech because, you know, they don't want to have to endorse the government's message and become complicit in the government's support abortion. So this idea of complicity that really just kind of sprung up on us in the Hobby Lobby case, I think has come to dominate not only this court's docket, but also really the Trump.
- [55:25]
A
Administration and the discourse. I think in an interesting way, I think we are now having over and over and over again conversations about the boundaries between an individual's faith and whether that can sprawl to entire companies and the entire government. It's a really problematic posture if you believe that this is a country that values religious liberty, but also that religious liberty can't be the only value. Mark, I shudder to do this because I feel like I don't even want to ask you to predict what is happening tomorrow. But I'm going to say, what are you looking to in 2018? What should listeners, I mean, let's say it together, Mueller. But other than that, what should our listeners be, you know, immigration, travel ban, what should listeners be looking out for under the day to day detonation of crazy that will be on the front page?
- [56:22]
E
Well, first of all, you know, the issue of undocumented minors seeking abortion is not going to go away. There are going to be more minors, and the Trump administration will continue to try to block their access to abortion. That issue is almost certainly going to reach the Supreme Court. We have ongoing litigation over the Trump administration administration's ban on transgender military service, which is all an absolute muddle right now. The Trump administration is pretending that it's not prepared to accept transgender enlistments, but advocacy groups have gotten their hands on documents proving that, in fact, the military is perfectly ready and has been ready for a while. We have this impending potential purge of currently serving transgender troops who were invited to serve openly in 2016. So we have that entire mess. And we also have this case that I think another one that's sort of fallen off our radar is that we should focus on Janus, which will be heard in February at the Supreme Court. And this is the case that will hobble public sector unions in America forever. It's an extraordinarily important case that people just aren't paying attention to, but it's really going to seriously diminish the power of unions in about half the country. So 40 years ago, the Supreme Court said that it was perfectly acceptable for public sector unions. So think of teachers unions or firefighters unions to charge a fair share fee to public employees who aren't in that union. You know, the union can't force these employees to join and pay the full share of fees that go to support so much of the union's political advocacy. But. But the unions are allowed to charge a minimal agency fee simply to support collective bargaining, the bargaining between the union and the employer that benefits everybody. Because if nonunion employees don't have to pay that fee, then they're just free riders. They get all of the benefits that the union has negotiated for. They get all of the, you know, time off raises, pension benefits, but they aren't helping to support the union's efforts to secure those benefits. And so the Supreme Court said a long time ago, look, no problem with charging a fair share fee. About 20, 21 states currently do so, including very large states like California and the Supreme Court. The Supreme Court's conservatives have been seeking to kill fair share fees for years. They came very close two years ago, shortly before Justice Antonin Scalia died. But when he died, the court deadlocked 4 to 4 on this question. Now they've taken it up again. And with Gorsuch joining the court, there are almost certainly five votes to declare that somehow a fair share fee constitutes unconstitutional compelled speech and association in violation of the First Amendment. This is a very radical Theory that really just moved from the far, far right fringe of anti union activism straight to the mainstream of the conservative legal establishment. And it looks like at some point next year, some point in 2018, the Supreme Court is just going to hobble kneecap, you know, millions of employees in federal thousands of unions across the country. Jeff. Because five justices don't really like them.
- [59:55]
A
So add to our list of things to think about and watch for, not just public sector unions, but I would say also cell towers, privacy and new technologies. And then voting. Right. We've got the courts looking at gerrymanders and then gerrymanders again and the Ohio vote purge. Mark, in the 30 seconds we have left, what's the thing that you are looking to? What is giving you hope and courage? What is the thing that you use when you're tired because you've written 16 stories a day and it all seems to suck pretty bad?
- [60:33]
E
That is a good question. What do I use to keep hope up? Well, you know, I sat in on arguments and guilt, the gerrymandering case. And I do think it is more probable than not that Justice Kennedy and the liberals on the court are going to impose some restrictions on extreme partisan gerrymandering. And that gives me a lot of hope because if you look at the takeover of state legislatures over the last 10 years or so by far right factions, that has been aided and really enabled by these extreme partisan gerrymanders that allow Democrats to receive a majority of the total votes but still give Republicans a super majority in the state legislature. If the Supreme Court breaks that pattern, we're going to see a lot more democracy in this country. And as Justice Sotomayor said during arguments in that case, you know, democracy is supposed to be a good thing. It's not a dirty word. Having people be able to elect the representative they prefer, that's what our Constitution is sort of all about. So I have some hope that gerrymanders will start falling in 2018, that we'll finally get our hands around this issue and maybe, just maybe, we'll have freer and fairer elections starting in the next cycle.
- [61:54]
A
Democracy. MeToo Mark Joseph Stern, thank you for being here. Mark covers the courts and the law and pretty much everything at Slate. Mark, wishing you and yours a happy, healthy, wonderful holiday season. Failing that, just be okay and have fun.
- [62:16]
E
Thank you. Same to you. We're gonna survive this. Even if someone or another gets fired over Christmas. Dalia, we'll make it.
- [62:23]
A
Hashtag, we'll make it. And that will be all from me for this episode of Amicus. Our email is amicuslate.com and you can always find us@facebook.com amicus podcast. And we really love and appreciate and read your letters, so keep them coming. Transcripts for today's show are always available to Slate + members, and this week's show was produced by Sarah Burningham. Steve Lichti is our executive producer and June Thomas is managing producer of Slave Podcasts. We wish you a happy and joyful holiday season. We will see you again in2018. We will be back with you in just two weeks for another episode of Amicus.