All of us as judges have had life experiences that could be said to affect our perception of the cases that come before us. Some of us have served as prosecutors and others have not; some have experienced discrimination as women or minorities and others have not; some are intensely religious and others are not, and our religions vary…. These life experiences do not disqualify us from serving as judges on cases in which the issues or the facts are in some indirect way related to our personal experiences.
– Judges Marsha S. Berzon and Richard Tallman, in an elegantly written Ninth Circuit order explaining why Judge Susan P. Graber does not need to recuse herself from a capital murder case because her father was murdered 40 years ago.
Last week, I wrote (with great pleasure) about whether women lawyers should wear peep-toe shoes to court. In my informal poll of seven federal judges, the vote broke down roughly as follows: four in favor, two opposed, and one in the middle. (See the update — Judge Susan Graber seemed agnostic on peep-toes, but advised lawyers, male and female alike, “to consider comfort and color” in footwear choices.)
One of the judges who dissented, lodging her opposition to a litigatrix sporting peep-toe shoes in court, was Judge Kim McLane Wardlaw (9th Cir.):
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.
But don’t get the wrong impression about Judge Wardlaw, who is fierce and fabulous (see my earlier interview of her). She is not some fashion fuddy-duddy. Although she recommends against lawyers wearing peep-toes to court, she owns many pairs of herself, which she happily wears in chambers.
Check out these photos of Judge Wardlaw modeling peep-toe shoes, sent to Above the Law by her colleague on the Ninth Circuit, Chief Judge Alex Kozinski….
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….
Next time you hear a cell phone go off in a movie or at the theater, and think to yourself, “What an a**hole!”, remind yourself: Someday YOU might be that a**hole.
Watch this video, from the start of the Harlan Fiske Stone Moot Court finals, which we attended at Columbia Law School earlier this week. Pay special attention to what happens around the 18-second mark:
Yes, that’s right. The judges entered the room, their robes billowing out behind them. The court crier made the very formal and grandiose announcement: “Oyez, oyez…” The room fell into a solemn silence. And then, at that precise moment, our computer — which was in the process of turning on — made that annoying Windows start-up noise. Loudly.
One could feel a wave of horrified embarrassment sweep through the audience. Justice Alito chuckled, so hopefully he wasn’t too offended. But we were mortified (and rightfully so).
In our defense, this was a complete accident. We were in the process of setting up and turning on our computer, and we didn’t know when exactly the judges would be arriving. We turned our computer on, and it began the start-up process (which can take a little while). Unfortunately, just seconds after we turned it on, the judges made their entrance. And even more unfortunately, as the silence settled over the room, our computer made that colossally loud cyber-fart.
In any event, our apologies, Your Honors! Please do not blame the CLS audience for this rudeness. It was completely our fault.
We took some rough notes on the proceedings. They will probably interest you only if you attended the Moot Court finals yourselves. Or if you care about the hairstyles of Article III judges.
If you want to see our commentary, it’s available after the jump.
Yesterday afternoon, we attended the Harlan Fiske Stone Moot Court finals, at Columbia Law School. We interviewed the four finalists prior to the arguments.
Here’s our interview with Eric Chesin and Geoffrey Reed:
And here’s our interview with David Gringer and Patrick Somers:
After impressive arguments, and deliberation by the distinguished panel — Justice Samuel A. Alito, Judge Susan P. Graber, Judge Brett M. Kavanaugh, and Judge Sonia Sotomayor — the best oralist prize went to Eric Chesin. Congratulations, Eric!
We got to chat at the O’Scannlain law clerk reunion with Judge Susan Graber (9th Cir.), whose chambers are located just downstairs from Judge O’Scannlain’s. We bantered with her about the antique piano she keeps in her chambers (and which she allows the law clerks to play). It was a thrilling encounter!
But when we wanted to take a photo with Judge Graber, she had vanished. So you’ll have to settle for this picture of the door to her chambers. Sorry!
As you well know, here at ATL we have a weakness for the dramatic, the outsized, and the flamboyant. As a result, we tend to gravitate toward judges who are colorful characters, ideological warriors, or both. On the Ninth Circuit, for example, we find ourselves fascinated by figures such as Judge Alex Kozinski, on the right, and Judge Stephen Reinhardt, on the left. (And, of course, She-Who-Must-Not-Be-Named.)
But we have a confession to make: throughout out clerkship, we had the hugest crush on Ninth Circuit Judge Susan Graber.* At right: Judge Graber enjoys a slice of celebratory cake with two Ninth Circuit colleagues, Judge J. Clifford Wallace (left) and Judge Richard Clifton (center).
Judge Graber isn’t sexy in the “blonde bombshell” manner of, say, Judge Kim McLane Wardlaw (with whom we were also obsessed, for different reasons). While warm and friendly, Judge Graber doesn’t qualify as a colorful character (like, say, Judge Kozinski). Instead, she exudes a restrained, matronly dignity, perhaps cultivated during her long years on the Oregon Supreme Court.
So why did we find Judge Graber so darn sexy? Precisely because of her total indifference to sexy. Remember that MTV cartoon character Daria? Judge Graber is sexy in a “Daria” kind of way.
Judge Graber didn’t care about being “sexy,” and she didn’t focus on the “sexy” cases. Based on what we observed, “SPG” didn’t seem to care about serving any particular ideology, conservative or liberal. Nor did she seem to care about what people thought of her, or what the media wrote about her. She just “did her thing,” calling each case as she saw it, typically with moderate results.
Furthermore, Judge Graber’s unflagging dedication to the most boring areas of law imaginable made her strangely attractive to us. While Judge Graber’s colleagues sparred over hot-button issues like affirmative action and separation of church and state, she buried herself in the technocratic interstices of our nation’s most obscure laws. She would write learned opinions and lengthy en banc memos about statutes you didn’t even know existed.
With apologies to Justin Timberlake, Judge Graber is “bringing sexy back” — back to statutory backwaters like the Ports and Waterways Safety Act of 1972, the Employee Retirement Income Security Act of 1974 (aka ERISA), and the Oil Pollution Act of 1990. It’s a tough job, but somebody’s gotta do it. Go Judge Graber!!! Random aside: We hear that the sexy Judge Graber has some pretty sexy law clerks (whom we unfortunately did not meet while in Portland). Is this true? If so, can someone send us pictures, so we can put them on file for our future Law Clerk Hotties contest?
* While our former boss, Judge O’Scannlain, is a distinguished judge, a great mentor to his clerks, and a very handsome man (like Paul Newman) — as well as a true friend to us during good times and bad — we can’t say we’ve ever had a “crush” on him. That would be like having a crush on our father or uncle. GROSS!!! Susan P. Graber bio [FJC] Susan Graber profile [Law.com]
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