Books, Federal Judges, Litigatrix, Women's Issues

In Defense of A Woman: Some Thoughts on the Judge Gertner Book Controversy

Federal judges are people too — and I have proof. Earlier this week, one federal appellate judge accepted my friend request on Facebook. Another circuit judge emailed me — from a Gmail account (although we didn’t Gchat; that would have been too cool for words).

Judges are real people — with opinions, not just of the judicial kind, and with personalities. They have interesting lives — off the bench, and before they’re appointed to the bench. Judges are not grown in petri dishes, and donning the robes cannot and does not erase their personal or professional histories.

So I’m not quite sure why everyone is getting their proverbial undergarments [FN1] in a wad over a forthcoming memoir by Judge Nancy Gertner (D. Mass.). The pot was first stirred by the Boston Globe, which began its article as follows: “US District Court Judge Nancy Gertner has a memoir coming out in April, and it bears a very unjudicial title: In Defense of Women: Memoirs of an Unrepentant Advocate.”

“[A] very unjudicial title.” Really? Is this the Boston Globe, or the Boston Herald?

Let’s delve into the controversy….

The Globe article — which has been picked up by the ABA Journal and the WSJ Law Blog, among other outlets — continues:

The 64-year-old Boston jurist said the book being published by Beacon Press focuses on her two decades as a prominent criminal defense and civil rights lawyer before she joined the bench in 1994. As such, she might not have to worry about the federal Judicial Code of Conduct, which prohibits judges from making public statements about cases that could come before them.

But by devoting a memoir to her years as an “unrepentant advocate” for notorious criminal defendants and women who brought sex-discrimination suits, Gertner will almost certainly give ammunition to those who say she tilts toward those litigants instead of prosecutors and corporations.

Is the subtitle of the book, “Memoirs of an Unrepentant Advocate,” such a big deal? Before President Clinton appointed her to a district judgeship, Nancy Gertner worked on some important and high-profile cases — and some of that work helped her reach the federal bench, by making her a leading litigatrix in Boston. Why should she have to “repent” for any of it?

(One quibble: Although I don’t have a problem with the title of the book, I’d advise Beacon Press to remove “U.S. District Court Judge” from the front cover, right below Judge Gertner’s name as the author. It could give rise to accusations that Judge Gertner is somehow using her judicial office to promote her book.

UPDATE: In response to a commenter’s query, I took a look at the Code of Conduct for United States Judges. The commentary to Canon 2B notes: “A judge should avoid lending the prestige of judicial office to advance the private interests of the judge or others…. In contracts for publication of a judge’s writings, a judge should retain control over the advertising to avoid exploitation of the judge’s office.”)

There’s nothing wrong with a federal judge writing a book. In fact, there’s ample precedent for this. The Globe notes that Justice Sandra Day O’Connor wrote a critically acclaimed 2002 memoir, Lazy B: Growing Up on a Cattle Ranch in the American Southwest, and that Seventh Circuit Judge Richard Posner has written about 40 books on jurisprudence, philosophy, and current events.

There are many other examples of Article III jurists turned book authors. What about Justice Clarence Thomas, author of the bestselling My Grandfather’s Son? Just like Judge Gertner’s book, Justice Thomas’s book is a memoir of his pre-robescent years, which might shed light on CT’s current worldview as a justice.

Or take Justice Antonin Scalia’s book on constitutional and statutory interpretation, A Matter of Interpretation. Unlike a memoir, this is a book that discusses substantive legal issues. When it was published, it was greeted not with controversy but acclaim (and deservedly so — it’s a fantastic read, as well as highly persuasive).

What’s really driving the controversy here is that Judge Gertner is, to be sure, quite liberal (as I know from having had her as a (fabulous) professor in law school; we disagreed frequently). Writing about her work as a crusader for the rights of women and criminal defendants just supports claims from her critics that she’s too pro-defendant in criminal cases and too pro-plaintiff in civil case. But Justices Scalia and Thomas are viewed as quite conservative, and their books do nothing to dispel these perceptions. So what’s the problem?

Prominent civil rights lawyer Harvey Silverglate, a former law partner of Gertner, put it well in comments to the Globe:

Judges, like other human beings, have predispositions. Some are called liberals. Some are called conservatives. To hide these facts doesn’t make them untrue. And so by encouraging judges to talk more, when you have a case before a judge, you have a better idea of what that judge might be interested in and what you might have to say in order to overcome that judge’s predispositions.

Indeed. Most federal judges are already too sphinx-like. Let’s encourage them to say more, not less, about who they are and what they think.

P.S. There’s an interesting tidbit at the end of the Globe piece:

Given that Gertner turns 65 next May, an age when she can retire and continue to draw her full salary of $174,000 a year, some in Boston’s legal community privately speculate that publication might coincide with an announcement that she plans to leave the bench. Some wonder whether she will even resume the lawyering that is the subject of the book. Gertner dismisses the speculation.

Given her impressive intellect, penchant for writing, and liberal views, Judge Gertner wouldn’t be a bad judge for the Democrats to have on the First Circuit. But there are no vacancies on the court right now, and the Obama Administration has shown a general penchant for picking judges who are (a) significantly younger than 65 and (b) easy to confirm (a la Lady Kaga).

[FN1] I refer to the “proverbial undergarments” because I hate the “p” word. It has to be one of the ickiest words in the English language — especially when combined with another word I dislike, “moist.”

In Defense of Women: Memoirs of an Unrepentant Advocate [Amazon]
Judge’s book raises some eyebrows [Boston Globe]
Federal Judge’s Book to Focus On Her Prior Work as ‘Unrepentant Advocate’ [ABA Journal]
Is Boston Judge Guilty of Oversharing? [WSJ Law Blog]

(hidden for your protection)

comments sponsored by

Show all comments