Rank Tribalism And Justice

Every lawyer who does any courtroom work has encountered bullies in black robes. Some judges are exceptionally decent and keep their temper, even when it would be understandable if they lost it. Some judges, like most of us, have their good days and their bad days. And some judges use their office to indulge all the worst bits of their low character, abusing and belittling and demeaning with impunity.

It's that impunity that makes a bad judge a loathsome bully. Bad judges engage in abuse because they know there's almost nothing anyone can do about it. Under normal professional or social circumstances, if someone you deal with is consistently insulting and abusive, you can shun them, or respond in kind. You can stand up for yourself. But when the bully wears a black robe, there's damned little you can do about it. Standing up for yourself in court will earn you sanctions, bad results, and even jail for contempt. And the commissions and panels that putatively supervise judges routinely give them passes even for contemptible and lawless behavior.

So when the timid and frequently indifferent watchmen actually call a judge to task for bullying behavior, it's a cause for celebration.

At least for most people. For rank ideologues, it's an opportunity for fatuous identity politics.

Our friends at the Legal Satyricon have a good recent example. Yale Law Professor Adam Cohen wrote a piece in Time magazine about the Washington Supreme Court's recent disciplinary action against King County District Court Judge Judith Raub Eiler. You can find the Washington Court's actual decision here, or once that disappears, here in pdf form.

The Washington Supreme Court's opinion, much more so than Cohen's brief summary, paints a picture of a relentlessly snide, belittling, demeaning judge. Cohen put that depiction into the broader social context of a culture that promotes being snide, belittling, and demeaning for popular entertainment. Neither the Washington Supreme Court, nor Cohen, suggested that Judge Judith Raub Eiler's problem was that she is unfeminine.

But academicians and theoreticians can see the words between the lines that mere mortals cannot. Hence Cohen's piece drew an angry broadside at Feminist Law Professors. The screed is anonymous, which I find notable only because (1) it's written by one of the masthead writers who usually goes by their name, and (2) writers at Feminist Law Professors have been highly critical of internet anonymity and its effects. (Consistent with my normal position, I support the writer's decision to be anonymous.) The Feminist Law Professors blogger attacks Cohen, suggests that he is not suited to be a professor at Yale, equates his criticism of Judge Eiler to calling a black person "nigger", attributes to Cohen the position that Eiler's behavior is objectionable because it is insufficiently "feminine," and that Cohen's position is like that of the stereotype-driven chauvinists in the notable discrimination case Price Waterhouse v. Hopkins.

This is, to be blunt, a freakishly biased take on what Cohen actually wrote, and what the Washington Supreme Court actually did. I would be very surprised if the Feminist Law Professors blogger actually read the Washington Supreme Court discipline decision before indulging in this screed. I would be equally surprised if the blogger had ever actually appeared on behalf of clients in front of judges. If the blogger had done either, he or she would know some important things. He or she would know that both men and women complained of Judge Eiler's demeaning conduct. (Perhaps the blogger would dismiss the women's input as false consciousness.) He or she would know that Judge Eiler's conduct — like the conduct of most bullying judges — was disproportionately levied against the powerless. He or she would know that bullying judges — even female bullying judges — often reserve their most vicious behavior for female lawyers and female litigants, whom they perceive as easier prey. He or she would know that holding judges to a standard of decent conduct is essential to protecting the rights of all groups traditionally the object of discrimination, including women.

There's no question that society treats rude conduct by women more harshly than rude conduct by men. But that doesn't mean that the conduct of women ought to be above critique, and it does not mean that every criticism of the conduct of a female public official is a consequence of bias rather than a consequence of behavior we ought not tolerate in our public servants, whatever their gender. Read the Washington Supreme Court decision, and see if anything in it suggests that Judge Eiler's conduct was deemed unacceptable because it was too masculine. Read Cohen's column, and see if anyone but a ideology-addled polemicist would take it as a call for female submissiveness, rather than a call for decent behavior by people in power.

And while you are at it, rest assured that it is possible to be committed to the formal, legal, and social equality of men and women, interested in the ways that law and society thwart that equality, and open to discussion of remedies without being a compete fucking intellectually dishonest ninny. You just might not know that from reading the sort of things that Feminist Law Professors publishes.

Last 5 posts by Ken White


  1. says

    I would like it noted for the record that I deliberately avoided referring to Price Waterhouse as a seminal case.

  2. Imaginary Lawyer says

    I'm kind of stunned myself that FLP published this nonsense. However, I doubt that the author failed to read the opinion – he or she probably is a friend of Judge Eiler if not a sockpuppet.

  3. says

    I don't know, IL. I suppose it is possible. But it had more of a "the actual facts of the situation are irrelevant to my academician's take on it" vibe to me.

  4. Imaginary Lawyer says

    It is certainly consistent with that vibe. But the turn-that-frown-upside-down recasting of Judge Eisler's behavior – oddly mirroring the judge's own defense of her behavior – as "no-nonsense" and appropriate, the insistence that such behavior would be seen as perfectly OK from a male judge, the anonymity, the open letter format, and the obsession with the phrase 'with all due respect'…well, that rings to me like somebody who has a personal axe to grind.

  5. says

    The comments on the Time article are thoroughly depressing. So many of my fellow Americans take absolute delight in state authority, reflexive tribal hatreds and punishment for its own sake. Get me a fucking spaceship out of here.

  6. says

    My take on reforming judicial behavior is that adding more women would help:


    You would think taxpayers would be able to hire only the best people as judges and fire the ones who don't seem suited to the job. After all, for most lawyers, a job with full medical and dental benefits; a pension; and no billable hours or the need for an ever-expanding book of business is heaven on earth.