A Conversation with Judge Nancy Gertner

Vol. 35 No. 2

Judge Nancy Gertner of the U.S. District Court for Massachusetts was recently interviewed by Steve Wermiel, co-chair of the Human Rights editorial board, after she had been selected to receive the 2008 Thurgood Marshall Award of the American Bar Association’s Section of Individual Rights and Responsibilities (IRR). The award was presented to her at the Annual Meeting in August 2008 in New York City. The interview is intended to share the accomplishments of the Thurgood Marshall Award winner with a wider audience than those in attendance at the awards banquet.

Appointed by President Clinton in 1994, Judge Gertner was recognized for her tireless commitment to the preservation and expansion of civil rights and civil liberties for women, minorities, and the poor. As a criminal defense lawyer, she represented many high-profile defendants and focused much of her criminal practice on the protection of attorney-client privilege. Judge Gertner’s civil rights practice was equally groundbreaking, with a caseload that included one of the first sex discrimination class actions involving an academic institution, one of the first sexual harassment cases in Massachusetts, and several cases involving discrimination against professional women. As a jurist, she has been a vocal critic of the federal sentencing guidelines and has written landmark decisions on racially balanced schools, housing discrimination, and racial disparities in federal juries.

Human Rights: As a lawyer in practice, you developed a reputation as a fighter for civil rights. I have several questions about that commitment. First, what inspired your concern with and commitment to civil rights?

Nancy Gertner: I was a child of the sixties. I graduated Barnard when the streets of New York were filled with antiwar demonstrations, when the civil rights movement and constitutional litigation showed us the promise of our Constitution, and when a burgeoning women’s rights movement was beginning to be heard. These movements were impossible to ignore. And I believed passionately in what Rabbi Abraham Heschel said, that the opposite of good is not evil; it is indifference.

I went to graduate school and then law school in the midst of all of this. Yale Law School in particular was a cauldron, boiling over with demonstrations, cutting edge law reform litigation, causes and movements of all sorts. I planned to work as a lawyer for two or three years and then return to the academy. But I got caught up in an extraordinary practice—civil, criminal, appellate and trial, federal and state—mainly civil rights, civil liberties, and criminal defense. I vowed that I would use my skills to help people who seemed all but forgotten.

HR: Did your own exposure to discrimination shape your views?

NG: Interestingly enough, I was exposed to discrimination only after I graduated law school—in the courts of Massachusetts, where there were very few women lawyers, and among my colleagues at the bar. It didn’t shape my views; it reinforced them.

HR: Were there civil rights accomplishments of which you were particularly proud?

NG: I assume that you are asking about my accomplishments as a lawyer.

My husband, John Reinstein of the American Civil Liberties Union, and I were responsible for Moe v. Hanley, the case that found a right to choose in the Massachusetts Constitution. I am also proud of the work I did with the Concerned Black Educators of Boston, a group of black teachers who participated in the Boston desegregation case.

But there is a longer list (in an unpublished memoir, by the way) of criminal cases dealing with the Fourth Amendment’s exclusionary rule, the first case in Massachusetts using battered women syndrome as a defense, cases protecting the attorney-client privilege (against government subpoenas), civil cases dealing with race and gender discrimination of all kinds, including one of the first cases dealing with sexual and racial harassment, “glass ceiling” cases involving women who were denied tenure, civil actions for rape, psychiatric malpractice (namely, psychiatrists who slept with their patients), and a number of police misconduct/Section 1983 cases, etc. (In fact, John and I had an interesting partnership. I would try the criminal case, and he would do the subsequent Section 1983 action, if appropriate.)

I feel blessed to have been able to do what I wholly believed in as a lawyer and then have the privilege of becoming a judge.

HR: When people think of the federal courts, compassion is not the first word that comes to mind. Yet that is a term frequently used to describe your role as a judge. Can you provide some insight into how you make this happen?

NG: I will take your question in two parts: Where does the compassion come from, and how do I make it happen in court? I was born into very modest circumstances on the Lower East Side of Manhattan, circumstances that improved to a degree when my family moved to Queens. I knew about people struggling to make a living, dealing with seemingly heartless bureaucracies, feeling powerless and ignored. I had endless conversations with my parents, especially my father, about how the government and the laws affect ordinary human beings. They had an intuitive humanity that was not about grand theories or principles; it was about respect and integrity. (I call it the “Moishe factor”; Moishe was my father’s name.)

What I loved about being a lawyer was the extent to which it enabled me to take my skills and status and speak for ordinary people. Don’t get me wrong: I loved the grand law reform cases, as well, the intellectually stimulating appellate arguments, the high-profile civil rights and criminal defense cases. But I also loved helping individuals navigate the courts. The victories were sweet, but sometimes all I could do was to slow down the wheels of justice so that human beings would not be ground up in them.

The judicial role constrains me in different ways. There are obviously rules I have to follow, standards and laws I am obliged to implement. But I try not to forget what it was like to stand next to someone in court and feel that person trembling. Or what it was like to be stuck in the visitor’s chamber at the maximum security prison in Massachusetts, when the doors jammed—both incoming and outgoing. Or visit a woman institutionalized at the Bridgewater State Hospital and hear people screaming in nearby rooms. I try not to forget what it was like to be a young lawyer, facing a judge who didn’t much like the person you were representing or what you stand for and made that quite clear.

HR: How has being a woman affected your time as a lawyer? Your tenure as a judge?

NG: Justice Thurgood Marshall, for example, was often asked about the effect a given rule would have on ordinary people, how it would operate in real life. He asked those questions because he had felt acutely the impact of laws and rules that profoundly subordinated African Americans in his life and in his work. Obviously, my experiences of discrimination and denigration don’t remotely compare with Justice Marshall’s. But having had the experience of being an “outsider” and representing outsiders has shaped me. Lani Guinier once described this as becoming an “insider” without losing one’s “outsider consciousness.” Judging, after all, is about more than an abstract calculus of rule and principles. It involves using one’s common sense and experiences in making credibility determinations, evaluating the context in which actions take place, trying to understand human behavior.

I was one of the first women trial lawyers—civil or criminal—in Massachusetts. I can’t say I had an easy time of it. I had a file entitled “sexist tidbits,” in which I recorded every derogatory comment, antiwoman “joke,” and the snide/sarcastic/funny rejoinders I developed. (I still have the file, part of that unpublished memoir, in fact.)

And being a woman also energizes my commitment to other women lawyers. In every way I can, I try to use the status being a judge gives me to enhance women’s progress in the legal profession. For example, I am active in the National Association of Women Judges and a group called the Equality Commission. Both organizations have been working to keep women’s status from backsliding, to prevent the very real possibility that attrition and a contracting economy will reverse the gains women have made over the last several decades.

HR: Do you have any reaction to the fact that you are only the second woman to receive the Thurgood Marshall Award, after Justice Ruth Bader Ginsburg?

NG: I am extraordinary proud and humbled by the award.

HR: Overall, do you think the federal courts do a better job now with civil rights cases than when you went on the bench in 1994?

NG: No. I am on record criticizing the way federal courts respond to civil rights cases. Most civil rights plaintiffs who are alleging discrimination lose on summary judgment. This is so because of the rules—largely court-made—that have emerged over the past twenty years—mechanistic rules about statutes of limitations, or burdens of proof, or discovery. We have taken a complex phenomenon and, as Professor Elizabeth Schneider of Brooklyn Law School says, we have “sliced and diced” it so that it is not recognizable. Cases that should go to juries—because intent to discriminate is a quintessential jury question—are being tossed out for specious reasons, i.e., this or that racial epithet is considered a “stray remark” by a judge, when a jury might think otherwise; too often what we are really saying is that the plaintiff has not proved discrimination to the satisfaction of the federal judge, rather than his or her peers.

I have been at a seminar at which the teacher began his talk to judges on employment discrimination by saying: “Here’s how you get rid of these cases.” I was appalled.

HR: Did you set out to become a highly regarded expert and scholar on federal sentencing or was it a byproduct of practice and presiding over cases?

NG: Actually, I was interested in sentencing as a criminal defense lawyer. I believed that the case did not end with the verdict and usually prepared a lengthy sentencing memorandum for the court. The memos would address who the defendant was, the context in which the crime took place, what the sentencing alternatives were, the benefits of various institutions and programs. And I would continue to represent defendants postconviction. This was unusual then. Indeed, the lack of attention to sentencing, to reasoned arguments about what the appropriate outcome should be, contributed to a degree to the move to mandatory guidelines.

When I became a judge and was obliged to sentence in the Federal Sentencing Guidelines regime, my interest doubled. I concluded that there was far, far more room for flexibility than most judges believed, that courts were interpreting the Guidelines with a rigor that they did not require. I was one of a number of judges invited to attend a sentencing seminar with Professor Daniel Freed of the Yale Law School, my alma mater. Professor Freed and his students were raising important issues about the Guidelines that the litigants who appeared in front of me had not raised, and which few courts had considered. I was enormously impressed. In short order, I began to co-teach that class with Professor Freed, and I now teach it with Professors Dennis Curtis and Kate Stith.

Few law schools taught sentencing then—and even now. This is all the more troubling given the extraordinary rate of guilty pleas in the federal system. Pre-Guidelines, that meant that there was disparity in sentencing around the country, although less than some Guideline supporters have identified. Post-Guidelines, that meant nationwide disparity in charging decisions, and a false uniformity (treating unlike defendants similarly) based on a mechanistic application of sentencing rules.

HR: What, in your view, is the most critical issue for the federal system of sentencing criminal defendants?

NG: After the Supreme Court’s decisions in Booker, Gall, and Kimbrough, the courts have begun to appropriately and constructively criticize the Federal Sentencing Guidelines, the extent to which they overgeneralized, went beyond the dictates of the Sentencing Reform Act, and were not based on empirical evidence. Now courts have to move to the next step—consider alternatives to the Guidelines—not to supplant but to supplement the Guideline regime. For example, we need to think about the efficacy of punishment alternatives, what works with addicts, with younger offenders, what programs are available, the impact of the length of imprisonment on certain categories of offenders. In doing so, we need to look to experts other than lawyers—sociologists, criminologists, etc. This was what sentencing commissions were supposed to do, and more often, did not.

And we have to end what some scholars have described as our experiment in mass incarceration. It is nothing short of an outrage.

HR: Some of your cases have received substantial media attention. How do you feel about the coverage and about controversy over your rulings?

NG: I care deeply about how my decisions and the work of the court are seen by the public. I think we have an obligation to make certain that our work is accessible, that we speak plainly about what we are doing rather than miring our decisions in legal language. I was a high-profile attorney; I understand that public criticism comes with the territory. The only problem is that the judiciary is not supposed to answer. I believe that in a world of 24/7 news coverage, of a “blogosphere” in which many younger citizens get their news, it is essential that the judiciary respond in an appropriate way. We can no longer assume that we and the institution we represent will be respected. We have to earn that respect, affirmatively reach out to the public by speaking out on issues involving the criminal justice system, or participating in educational programs for a lay audience, for example, and responding to factually incorrect news accounts.

HR: Do you have advice for the law students you teach or for young IRR lawyers who are the next generation of civil rights advocates?

NG: Do what you love. Being a lawyer is a privilege. It enables us to live our life in a profession that should care about justice and equality, to put our considerable skills at the service of those goals. Nothing—in my view—is as important.

To be sure, the challenges today are different. Discrimination, for example, is more opaque than it had been thirty years ago. It does not come with a sign that announces “No women need apply” or “Whites only.” It is often more subtle but no less oppressive. And it implicates not just employment, but our unequal educational and criminal justice systems. And addressing these issues involves more than just a litigator’s skills. A civil rights lawyer has to engage the public, the media, and the political branches.

HR: What concerns did you have about moving from practice to the bench, and how would you reflect on those issues now?

NG: In my swearing in as a judge, I said that everyone has to “move to neutral” in this job, no matter where they started. The role is alien to a life well lived. We all come to it with our opinions, our biases, our life experiences. That is inevitable when we choose judges who are in their forties and fifties, when we choose judges who are experienced, who lived in the real world.

It was a struggle at first, feeling that the only way to do the job and follow my oath was to wholly ignore the issues that had engaged me all of my life. It was as if I had to become someone else in order to avoid any conflict between my values and the job.

I then came to realize that that was not necessary. Indeed, just the opposite. The struggle was essential to doing the job. I disagreed with Justice Clarence Thomas, who spoke about approaching the job of judging “stripped down like a runner,” without entangling opinions or the like. I don’t believe that we can do that, nor do I believe we should. I had it easier than most. I fully and completely understood my beliefs. I had acted on them as a lawyer.

The issue was understanding where your personal values end and the judicial role begins. You should still care that the outcome is unjust even when there is nothing you can do about it as a judge, when the rules dictate a given outcome.

I have used the story of the princess and the pea as an example. The real princess, so the story goes, had no trouble feeling the “pea” under twenty mattresses and featherbed. I have no problem looking for the “pea”—the just result—notwithstanding the layers and layers of legal rules that constrain me. Sometimes I can accomplish that result consistent with my oath, and sometimes I cannot.

And the struggle has become more acute in recent years. The law has changed substantially over the several decades of my practice and my tenure as a judge—extraordinary sentences for nonviolent offenders, a plethora of technical and formal rules to defeat civil rights claims, court stripping legislation, etc.

HR: Do you have a ruling of which you are most proud?

NG: That’s like asking which of my children I love the most.

HR: Would you reflect on the Supreme Court’s Seattle/Louisville decision in light of your own experience with Comfort v. City of Lynn?

NG: The case is still ongoing; I cannot answer this question.

HR: Thank you, Judge Gertner. We very much appreciate your taking the time to answer our questions. We would also like to extend congratulations on your winning the Thurgood Marshall Award.

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