Sykes, Sotomayor, and Women Judges

I had the opportunity last week to attend Women Judges’ Night, an event that the Association for Women Lawyers presents annually (indeed, this year’s dinner was the thirtieth such). The Hon. Diane S. Sykes, L’84, of the United States Court of Appeals for the Seventh Circuit, delivered what was billed as a keynote but was also in the nature of after-dinner remarks. The speech was a very good example of either form, for reasons related to its warmth, its willingness to take on a substantive and even somewhat contentious topic, and the speaker’s self-awareness and humor.

Judge Sykes began with a “confess[ion]”:

[T]the idea of a “Women Judges Night” has always made me vaguely uneasy. I’m uncomfortable with the implications and consequences of gender-identity politics—or any identity politics, for that matter. When we celebrate Women Judges Night every year, what is it precisely that we’re celebrating? If we’re celebrating the appointment or election of women judges just because they are women, then I think we are making a mistake about the qualities necessary in a good judge, which of course are not gender-specific. If we’re celebrating the appointment and election of women judges because they subscribe to a gender-based brand of judging, then we are making an even bigger mistake about the nature of the judicial role. I don’t think we’re celebrating either of these things, but I do think it’s important for us to be careful not to diminish the contributions of women judges by emphasizing their gender as if it had something to do with their qualifications for judicial office or has substantive significance in their work.

She would conclude with her own assessment of what the event celebrates, along the way touching upon matters from Madison to Washington, D.C.—from her former court, a majority of whose justices were in attendance (viz., Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, Justice Annette K. Ziegler, and Justice Patience D. Roggensack, the last of whom introduced Judge Sykes), to the United States Supreme Court and, in particular, last year’s confirmation of Justice Sonia Sotomayor. 

Continue ReadingSykes, Sotomayor, and Women Judges

Big Win for Plaintiffs in Dukes v. Wal-Mart

Walmart_1 Looks like a big win for the plaintiffs in the gigantic employment discrimination class action in Dukes v. Wal-Mart (a group of some 2 million former and current female employees have sued over lack of promotion opportunitie).  The 9th Circuit en banc, 6-5 with four separate opinions and 137 pages, affirmed class certification under Rule 23(b)(2) for some issues and remanded on others:

We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

The decision was written by Judge Hawkins, with a concurrence by Graber, one dissent by Ikuta and a separate dissent by Kozinski. The latter I am sure is fodder for a cert petition and I do believe this case is heading for a Supreme Court showdown.

Melissa Hart and I have written about how the social framework testimony of William Bielby was crucial, and properly admissible, in establishing the commonality and typicality prong for class certification.

Hat Tip: Rebecca Hamburg

Continue ReadingBig Win for Plaintiffs in Dukes v. Wal-Mart

Civil Rights Enforcement Chief: “We Are Open for Business”

Thomas E. Perez, assistant attorney general for the civil rights division of the US Justice Department, had a clear and firm message when he visited Marquette University Law School on Friday: He’s aiming to do the job he has held since October energetically and thoroughly. 

That wouldn’t seem like a noteworthy statement, except for the political context of Perez’ situation and the controversies that attend many of the areas of enforcement in the civil rights division. 

Perez said he would prefer to be like “the proverbial Maytag man,” sitting around with no one needing his services. But that is hardly how he described the work load of his division. 

Perez spent almost all of his remarks, lasting about a half hour, defending the need for civil rights enforcement in today’s America and pointedly hitting the theme that the division is “open for business.”

Continue ReadingCivil Rights Enforcement Chief: “We Are Open for Business”