Diane Wood, Fashion, Fashion Is Fun, Federal Judges, Kim McLane Wardlaw, Litigatrix, Reader Polls, Shoes, Shopping, Susan Graber

Wearing Peep-Toe Shoes to Court? Women Judges Weigh In

Earlier today, on the Senate floor, debate took place on whether to confirm Solicitor General Elena Kagan as the nation’s 112th Supreme Court justice. The Kagan nomination is not very controversial, due to the nominee’s impeccable credentials and the Democrats’ 59 votes in the Senate.

In the legal blogosphere, a far more divisive debate is raging, over a subject just as important as confirming the fourth woman ever to the Supreme Court: Are peep-toe shoes appropriate professional footwear? Can female attorneys wear them to the office? What about to court?

The debate was ignited over at The Careerist, by Vivia Chen (no style slouch herself — not many legal journalists own floor-length mink coats). Chen recounted this anecdote:

Waiting in line in the ladies room at the Waldorf Astoria Hotel recently, I heard this discussion: “In my day, I always wore pumps to court,” said in a woman in her fifties. “Can you believe this associate went to court with open-toe shoes?” Her companion shook her head, then asked: “How did she do?” The first woman replied, “Her work was good, but her shoes weren’t right.”

Chen then surveyed a number of lawyers, from around the country, and they could not reach a consensus on the appropriateness of peep-toe shoes. The debate continued over at the ABA Journal, where a post by Debra Cassens Weiss generated a flurry of comments.

Given that so many law firms are business casual nowadays, it is probably safe to wear peep-toe shoes to the office. The fashion guidelines issued by the New York office of Weil Gotshal, for example, officially bless “open toe or open heel shoes.” (Still unacceptable: “Athletic shoes, clogs, beach shoes, flip flops, beach shoes.”)

But what about wearing peep-toe shoes to court? On this subject, we decided to turn to the experts: namely, a panel of fabulous female federal judges….

Before we get to the panel, it’s worth noting: many women might want to wear pumps to court. In a recent feature entitled 5 Pairs of Shoes That Are Worth the Investment, over at our sister site, Fashionista, two out of the five pairs are closed-toe shoes: the Miu Miu patent leather pumps ($570) and the Christian Louboutin platform pumps ($865; pictured).

But let’s say that your pumps aren’t so hot, and your favorite footwear is of the peep-toe variety. Is it acceptable to sport open toes in open court?

Some judges say yes. Here’s how Judge Nancy Gertner (D. Mass.) responded to our inquiry:

Since the judge (me) wears “peep toe” shoes to court, it is surely appropriate. And the fact that it is even an issue is troubling!

Judge Gertner is a reliable authority on these matters. She has been a trial judge for over 15 years, since 1994, and before that she was a highly successful litigatrix, known for her high-profile criminal defense and civil rights cases.

(In addition, having had her as a professor in law school, I can attest that Judge Gertner is super-stylish. Just because you’re liberal — and Judge Gertner is definitely left-of-center, to put it mildly — doesn’t mean you have to be frumpy.)

In approving of peep-toe shoes, Judge Gertner is not alone. On the other side of the country, Magistrate Judge Leslie Kobayashi of Hawaii — a former trial lawyer and prosecutor, and President Obama’s nominee to the vacant district court judgeship in that tropical paradise — had this to say:

I do think it is acceptable, and I do wear them in court myself.

Judge Kobayashi’s colleague, Chief Judge Susan Oki Mollway (D. Haw.) — author of the colorful opinion in Gustafson v. Fukino, which we recently wrote about — concurred:

Peep-toe shoes are fine with me. I have heard it said that some people object to ‘toe cleavage,’ but I do not.

(“Toe cleavage,” Your Honor? Well, if it there’s a Wikipedia entry for it, then it’s clearly a real phenomenon.)

So Judges Gertner, Kobayashi and Mollway — three seasoned trial judges, who have seen a lot of female feet in their courtrooms — are fine with peep-toe shoes. And at least two of them, Judges Gertner and Kobayashi, admit to wearing such shoes to court themselves.

But let’s play devil’s advocate. Judges Gertner and Kobayashi: you’re the judges! You can wear whatever you like underneath your robe — and people will always compliment you, no matter what (although deservedly so, in the case of these fashionable jurists).

And some women judges respectfully dissent. Take Supreme Court shortlister Judge Kim McLane Wardlaw — a current Ninth Circuit judge, former trial judge, and former litigation partner at O’Melveny & Myers. Judge Wardlaw had the following advice:

My view is that if you have a question about the appropriateness of your attire, don’t risk it. Women appearing in court should never wear anything that draws attention to their anatomy over the merits of their case. You just never know how your audience — judges, jurors, clients or senior partners — will react. It’s better to play it safe in formal settings and save the peep-toes for after hours.

This is similar to the advice given to The Careerist by Kat Griffin, former Cahill Gordon associate and founder of Corporette (whom we previously profiled): “[A] closed-toe shoe is the preference. Don’t wear open-toe shoes unless you’ve seen a much more senior lawyer do it.”

Judge Wardlaw and Kat Griffin have company in the “proceed with caution” camp. Concurring with Judge Wardlaw is another federal circuit judge, who invoked the spirit of Justice Potter Stewart when we asked her if peep-toe shoes are permissible:

It depends. Some are discreet enough to be acceptable. Some are not. I know an unacceptable peep-toe shoe when I see it.

It’s best to err on the side of conservative attire in the courtroom. That includes footwear.

See also the judges at a recent Chicago Bar Association event (recommending against open-toe or peep-toe shoes, especially in front of a jury).

So let’s tally up the responses thus far. We have three judges in favor, and two judges opposed. Interestingly enough, the three judges who approve of peep-toe shoes are trial judges, and the two disapproving judges are circuit judges.

This could be interpreted in different ways. The trial judges log more hours in court, including time spent with juries, so perhaps their views are entitled to greater deference. On the other hand, the appellate judges are, well, appellate judges — one step up in the Article III food chain. Perhaps they can reverse the fashion judgments of the district court?

Let’s consult with one more (stylish and brilliant) woman judge: Judge Diane Wood of the Seventh Circuit. She was interviewed — twice so far, and perhaps again in the future — for Supreme Court openings by President Obama. In the case of In re Peep-Toe Shoes, Judge Wood ruled as follows:

Personally, I don’t mind peep-toe shoes on lawyers, as long as the overall look is professional. I wear them often myself.

My objections have always been limited to clothing so off-beat or sloppy that it distracts from what the person (male or female) is saying — the Woodstock look, as it were, or the Home on the Range look.

With all the votes in — and squeezing some (nuanced) feet into (definitive) shoes, for the sake of clarity — it appears our panel has split 4-2, in favor of peep-toe shoes. This looks like a win, but not a totally decisive one, especially when you take into account the various cautions and caveats. Where’s Justice Kennedy when you need him?

UPDATE: Shortly after we published this post, we heard from Judge Susan Graber of the Ninth Circuit, who offered this sound counsel (applicable to both genders):

My advice is to consider comfort and color. Occasionally a lawyer totters to the lectern on very high heels, which doesn’t lend credence to her argument (peep toes or not). Both men and women do well to avoid flashy colors that distract from their words.

You’ve heard what the honorable judges had to say. Readers, what do you think? Discuss in the comments, and vote in our pair of polls below.

Little Toe Peep [The Careerist]
Are Peep-Toe Shoes Too Provocative for Women Lawyers? [ABA Journal]
5 Pairs of Shoes That Are Worth the Investment [Fashionista]

Earlier: Fashion Dos and Don’ts From the Windy City
What You Can Wear At Weil

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