There is little doubt that Harvard Law professor Jeannie Suk Gersen has the chops. Not only is she a renowned scholar, but she’s written extensively and boldly about the failures of Title IX due process. And the case is before the First Circuit Court of Appeals, Boston’s federal appellate court, where she’s right at home. To be blunt, Gersen is a brilliant choice of representation for the appellee in Doe v. Boston College, scheduled for oral argument in less than a week.
Why then did Judge David Barron unceremoniously toss her from the case?
It’s not that Doe will go unrepresented without Gersen, He’s not only got lawyers, but excellent lawyers, as he’s represented by Andrew Miltenberg. But for the sake of this argument, Doe chose to bring in Gersen as the lawyer of choice to argue the appeal. That’s Doe’s right. So long as Doe can afford to do so, and Gersen is willing to take on the representation, a party has the right to be represented by the attorney of his choosing.
But without explanation beyond “would create a recusal,” Judge Barron decided otherwise, and at the eleventh hour.
There are reasons why a judge might issue such a denial. If a lawyer was brought in after the appellate panel of three judges was named for the purpose of manufacturing a conflict, forcing recusal of a judge whom a litigant believe to be antagonistic to his cause, the court might view that as an attempt at gaming the system and refuse to allow it. After all, counsel is there to represent the appellee, not to get rid of a meddlesome judge.
But there is neither a suggestion, nor a possibility, of such a nefarious motive here. At the time Jeannie Suk Gersen was named as the person who would conduct oral argument, when her name was placed on the appellate brief (which, per Judge Barron’s order, had to be refiled with Gersen’s name removed), no panel had yet been named. Not that there is any judge on the First Circuit whom the appellee wanted so desperately off the case, but no one could possibly know who would be sitting on the case in any event.
Judge Barron, a former Harvard Law prof, formerly serving in the Department of Justice, offers neither an explanation of who might be recused should Gersen argue the cause or why. Presumably, he would be the judge at issue since he denied her appearance. But then, Judge Barron got his commission in 2014, and whatever relationship existed during their joint tenure at HLS was now five years past.
It’s not at all unusual for lawyers and lawprofs to know people who eventually sit on federal benches. What do you think they were doing before they became judges? We became friends or maybe enemies. We went to the same parties. We talked. We argued. We may have even shared secrets from time to time. But we’re also lawyers and capable of rising above personal feelings, good or bad, because we understand that our duty, whether to the law or client, comes first. And at the same time, we take no offense when a dear old pal rules against us. That’s life in the trenches, and we know walking in that being friends won’t win our case, and being enemies won’t lose it.
Here, the denial of Jeannie Suk Gersen’s appearance for the appellee makes no sense. It’s not a matter of consanguinity, so what could it possibly be? Judge Barron offers no clue, but clearly takes it out on the appellee’s choice of counsel. A litigant has a right to the lawyer of his choosing, but no judge has a right to sit on a case and not recuse himself. And ironically, the panel has since been announced.
Judge Barron is sitting on every case being heard that day. Except Doe v. Boston College. Senior Judge Norman Stahl is also sitting on all cases but BC, but there’s no suggestion of any basis for recusal of Judge Stahl.
To the extent the mysterious denial of Jeannie Suk Gersen related to Judge Barron, the problem is alleviated by the fact that he won’t be on the panel considering the case. So why did he cancel Gersen as Doe’s lawyer? Assuming there was a reason, even if it went unstated, the reason no longer exists. Judge Barron’s bizarre and unexplained denial of Gersen’s appearance as counsel for appellee at oral argument should be withdrawn and granted, with perhaps a few words of apology for any suggestion that the denial reflected any suggestion of improper motive by Gersen’s appearance.
But that doesn’t fully address the problems created by Judge Barron’s order. It takes time to prepare for oral argument, and this order no doubt wreaked havoc with Doe’s legal team to deal with the sudden and unanticipated refusal to allow Gersen to argue the case. But there’s more. The court should reschedule argument for a couple weeks later to give the appellee time to prepare properly after this debacle.
Judges, particularly those who have gotten a paycheck for the entirety of their legal career, often fail to consider that a client has to pay for their inadvertent decisions. Gersen was retained for her representation on this case, and Doe paid for it. Gersen certainly put significant time into the case in preparation for oral argument, and Doe paid for it. With Gersen tossed from the case, someone else had to scramble to prepare for oral argument in the case. And yet again, Doe paid for it. There is an actual out-of-pocket cost to such decisions, even if judges don’t consider such banalities to be their problem.
But here, to the extent any judge felt any inkling of conflict giving rise to the need for recusal, that wasn’t Jeannie Suk Gersen’s fault. It wasn’t Doe’s fault, who did nothing more than choose the lawyer whom he thought would best represent his cause, as is his right. The problem, if there really was a problem, is solely the judge’s.
Feel compelled to recuse? That’s up to the judge, but absent some improper purpose, it doesn’t get dumped on a litigant or his attorney. Having done so, the First Circuit needs to undo this bizarre and inexplicable denial of Jeannie Suk Gersen as attorney for Doe and correct its error. Unfortunately for Doe, no fix will alter the fact that he will still be the one paying for Judge Barron’s “canceling” Jeannie Suk Gersen.
Update: After posting, I learned that a motion for reconsideration was made and denied by the three judges on the panel.
Why? Here’s the full text of the decision:
Appellee’s Motion for reconsideration of the order denying Attorney Jeannie Suk Gersen’s motion to file a late notice of appearance is denied.
Nice of the First Circuit to clear up this mystery and protect the constitutional rights of litigants.
Update 2: A “corrected” order has issued, now including the following:
LIPEZ, Circuit Judge, dissenting.
That’s it. No further explanation.
Update 3: Inexplicably (again), the court reversed itself and restated Gersen as counsel for the appellee.
Gersen, in the interim, filed a motion for en banc review, which was subsequently denied as moot.