November 01, 2018 Feature

#MeToo and the Judiciary Speakers Deliver Real-World Advice

By Linda Strite Murnane

Turn the tables on being a victim.” This was advice from one of the four women who spoke at the Standing Committee on Diversity in the Judiciary’s evening program on August 1, 2018, during the ABA Annual Meeting. The program, held at Loyola University Law School, was moderated by Michael Bergmann, chair of the Section Officers’ Conference and past ABA Judicial Division chair.

The speakers were Ally Coll Steele, founder of the Purple Campaign; the Honorable Stephanie Domitrovich, Sixth Judicial District, Pennsylvania; Marcia McCormick, professor of law and dean for academic affairs at St. Louis University School of Law; and me, a retired U.S. Air Force colonel and a past Judicial Division chair with experience as a judge in the Air Force and on staff with international institutions affiliated with the United Nations.

The program was inspired by former law clerks who came forward in December 2017 to confirm the open secret that Ninth Circuit Court of Appeals Judge Alex Kozinski had subjected employees to sex-based harassment and other forms of abuse for years. The judge’s alleged misconduct was first reported in the Washington Post on December 8, 2017.1

According to a memorandum from “Concerned Harvard and Yale Students” in August 2018, “Although Kozinski’s harassment was widely known—and sometimes even occurred in public, in front of multiple eyewitnesses—no one intervened.” The memorandum goes on to detail recommendations made by the authors of the document to assign responsibilities to the law schools.

During the panel discussion at Loyola, the speakers addressed the issue of sexual harassment and sexual assault in the judiciary. The speakers also described the need for strong whistleblower protections to allow individuals who have been subject to these conditions in their courthouses and in their judicial workplaces to seek redress without the fear of being ostracized. The speakers noted that judges who engage in this type of behavior can impact the future of new lawyers who seek opportunities to serve as judicial law clerks as a first and important step in advancing their career.

Poignant, real-life examples demonstrated that being talented, capable, well credentialed, and in what many would consider a powerful role does not provide a safe haven from individuals who, due to power inequities, feel they can take inappropriate sexual liberties.

During their presentation, Dean McCormick detailed the recommendations contained in the June 1, 2018, Report of the Federal Judiciary Workplace Conduct Working Group to the Judicial Conference of the United States. Included in the report’s findings is the conclusion that “[v]ictims are hesitant to report harassment and other inappropriate behavior for a variety of reasons, including lack of confidence that they will be believed, fear that no action will be taken, and concerns that a complaint will subject them to retaliatory action or affect future job prospects.”

Ally Coll Steele spoke about the establishment of the Purple Campaign. She was inspired to take on the mission based on her own experience with sexual harassment as an 18-year-old intern on Capitol Hill. She was a featured speaker at the Harvard Law School bicentennial, her alma mater, addressing issues related to barriers facing women in the practice of law.

She left her job at a prestigious law firm to cofound the Purple Campaign, the mission of which “is to end the systemic problem of workplace sexual harassment that permeates every industry in the United States.”

I described an environment in which there was no judicial code of conduct to address misconduct by judges at an international court and urged everyone to appreciate the power disparity created when a staff member or intern has been subjected to this type of behavior. I said, “So many of us have had people come to us to say, ‘I need to tell someone what happened to me, but please don’t tell anyone or do anything about it.’” Based on my experiences, I added that if you want to bring an end to the impunity that surrounds sexual harassment and sexual assault committed by those in positions of such great power, you have to be willing to say, “I can’t take your complaint in confidence. If I do, I am complicit in making you a victim. Have the courage to make it end now.”

Judge Domitrovich described the compelling personal experience she had as an elected official in her jurisdiction, which included being the victim of sexual assault as well as a follow-up campaign to ruin her professional and personal reputation. Rather than hide, Judge Domitrovich fought for her professional future.

I described a similar situation in which I became aware of sextortion occurring in an institution in which I was employed. After confronting the person responsible directly, I reported the conduct to appropriate officials within the institution. I later received a letter from the undersecretary general for Human Resources at the United Nations informing me that my complaint would not even be investigated, as the alleged perpetrator had responded by stating that the problems stemmed from my performance at the institution.

“What was amazing is that the performance evaluation completed by this same individual referred to me as ‘stellar’ and ‘brilliant,’ so either I was ‘stellar’ and ‘brilliant’ or I was a performance problem, depending on whether it involved reporting sextortion.” When I learned that the complaint would not be investigated, I resigned immediately. “To do anything else would mean that I was condoning the behavior. If I couldn’t make it better, I had to leave.”

I also discussed my experiences while serving on active duty in the U.S. Air Force. There was a particular event that occurred when I was a judge: “I was the only woman judge assigned to a specific circuit at the time. I was seated in my office and heard all of my fellow judges—all men—laughing in the office next to mine. I wondered how it could be that I was not included in the merriment,” I told the audience.

It turned out that there had been an advance sheet published that included decisions of women trial judges currently on the bench. “There weren’t many of us,” I explained, “so it was a small collection.” My male judicial colleagues were comparing the advance sheet to Playboy, holding it up, turned sideways, joking about how bad the “centerfold” photos were. As with most advance sheets, there were no photos, of course.

Confronted with the situation, I reported the event to my immediate superior, but also to the next superior in the military chain of command. Like many other women, I made the request, “Please don’t do anything or tell anyone.” I explained that the need to get along with my male counterparts overrode my interest in correcting the office dynamic. “I had been in the Air Force long enough and had experienced enough in the ‘sexual harassment leadership lab’ to understand how things worked.”

In retrospect, I regret taking that approach. While the situation was effectively resolved, as each of my male colleagues came to apologize for their behavior and it was not repeated, things might not have worked out that well if my request that “nothing be done” had been honored. “That personal experience informed my conduct going forward,” I shared.

Richard Nunes, chair of the Standing Committee on Diversity in the Judiciary, fielded questions from the audience during the presentation, and many of the participants described concerns about the impact on establishing mentor-mentee relationships and the potential negative impact on future professional opportunities as a reaction to the #MeToo movement.

As one participant noted, it is challenging to enter the legal profession wondering if attorneys whose experiences would improve the professional development might shy away from teaching and mentoring young women lawyers entering the profession.

Among the advice given to those in attendance was the need to open a line of communication that is direct and clear and ensures that the expectations of each person in the professional relationship are clearly understood.

The clear message from all the speakers, however, was that tolerating sexual harassment and sexual assault is not the answer. 

Endnote

1. Matt Zapotosky, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct, Wash. Post (Dec. 8, 2017), https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html?noredirect=on&utm_term=.7d60c48b775c.

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Col. Linda Strite Murnane

Colonel Linda Strite Murnane (Ret.) is a past chair of the American Bar Association Judicial Division. She served nearly 30 years on active duty with the U.S. Air Force and also worked with the United Nations at the International Criminal Tribunal for the Former Yugoslavia and the Special Tribunal for Lebanon.