The brave voices who now admit they knew all about Judge Kozinski’s porn peccadilloes, but only spoke out after Heidi Bond was brave enough to take the lead and they could follow behind her in safety, talk about the whisper network. There were whispers of risk and impropriety, so those who sought and obtained clerkships with Koz knew what they were getting into.
Penn State lawprof Dara Purvis says the Legal Academy should not allow the women who took the risk to do so again. Rather, they should blackball judges who are reputed to be a danger to students.
If there are credible reports that a judge’s chambers are not safe for our graduates, professors should band together, refuse to send our students to that judge and publicly explain why.
But judges have their whisper networks too. And Chief Judge Colleen McMahon of the Southern District of New York is hearing the whispers.
But a corollary development is largely being ignored.
It is the re-emergence of a very offensive “defensive” practice that today bears the moniker of a prominent politician, but that used to be known as the “Graham Rule.”
The Graham Rule says that a man should make sure he is never alone in a room with any woman other than his wife for any reason—including perfectly legitimate business reasons.
That way, he can avoid both the temptation to engage in inappropriate behavior and any chance that he might be the victim of an unwarranted accusation.
The Graham Rule walls off women from the associational benefits enjoyed by male lawyers and clerks, denying them the same participation that males enjoy.
That scares me to death.
Because I remember a time when entirely too many women, in our profession and every other, were denied opportunities for mentoring, for networking, for assignment to the best deals and the most exciting, challenging cases—all because someone was, or claimed to be, living by the Graham Rule.
Are some male judges ready to circle the wagons?
As revelation cascades upon revelation, some perfectly sensible men, concerned that there may be difference of opinion between men and women over what constitutes unacceptable behavior in the workplace, have wondered aloud in my presence whether something like the Graham Rule might not be a salutary and effective prophylactic.
Judge McMahon put it gently, and somewhat underwhelmingly, from what I hear on the whisper network. The “business” of a judge isn’t to provide a place for female clerks to go in the morning. It’s not that they have any desire to discriminate against women, but they aren’t prepared to dedicate their jobs, chambers, careers, to cater to whatever some particularly woke female clerk may later decide is harassment. They want female clerks. Just not badly enough to invite potential misery into their chambers.
Facing a potential minefield, what’s a judge to do? If your answer is the absurdly simplistic “just don’t harass,” you’re likely not clerk material in the first place. Harassment is whatever someone claims it is, without parameters or limitations. As any moderately sentient lawyer knows, if the putative victim defines the offense, the putative perpetrator has no clue what it will be until after the dirty deed is done. Nobody is willing to live like that.
Even the “good guys” are concerned about what they’re inviting into their chambers going forward. They’ve seen the bus run over the good guys just like the bad guys. Hiring female clerks in an effort to provide equal opportunity may demonstrate their good intentions, but good intentions won’t stop that landmine from exploding should they step on it.
What could go wrong? An off-color joke gets told in chambers? A less-than-social-justice-approved question gets raised? More to the point, who knows what will be deemed offensive these days? Should judges obsess over whatever microaggression arises? Their job is to serve as judges, not to recreate the courthouse to meet the ever-changing, often post hoc, demands of the baby lawyer to whom they’ve given the opportunity to clerk.
Judge McMahon is right about the Graham Rule, that it’s a terrible thing to wall off female law clerks from the opportunities they should enjoy. But even if a judge tries to be as sensitive to the demands of female clerks as possible, any mistake could land them on the prawfs’ blacklist. Or worse, on the front page of the newspaper. As she asserts, it’s illegal and immoral.
It is illegal because it violates the law to treat women and men differently at work in any respect. That includes refusing to meet with or mentor colleagues of one gender but not another, or cutting colleagues of one gender off from opportunities, even in the name of propriety.
And it is immoral because it puts the onus for controlling inappropriate behavior on the wrong person.
While true, this doesn’t quite address the problem, providing no parameters as to what makes behavior inappropriate, no limit on the “wrong person” from accusations of behavior that is innocuous except to the person offended. Some people can find reasons to be offended by almost anything. And Judge McMahon seems to be giving this warning.
Women in this room, especially young women, you dare not let this pernicious form of discrimination creep back, in the guise of making your workplace safer.
For if you do, you will discover that women can be victimized because of their gender in many ways, not all of which involve sexual misconduct, but all of which are detrimental to your chance of becoming an outstanding member of our profession.
Perhaps this means to stop seeking out reasons to be offended, to claim harassment, or you will overplay your hand and force judges to either invoke the Graham Rule or worse, stop hiring female clerks. Perhaps this means something entirely different. It’s hard to say. But Judge McMahon never had a “me too” moment.
And never once—never once—did any of them say or do anything that made me uncomfortable.
She offers the solution in the Liman Rule, referring to the legendary Arthur Liman.
It went like this: Don’t do anything you wouldn’t want your mother to read about on the front page of The New York Times.
It’s a nice rule from an earlier, simpler age, but neither Judge McMahon nor mom are the metric of discomfort giving rise to accusations today. And the judges know it.