Seeking Equal Judicial Firepower
What good was a line in sand? Could Biden win? Three days after his dramatic challenge to the chief justice, Sally Goldfarb chaired a meeting of the NOW Legal Defense task force to discuss VAWA’s chances. Goldfarb or Reuss announced that, as reported by Nourse, Senator Biden was willing to hold hearings that would involve judges directly. Was that a good idea?
Pat Reuss announced that she wasn’t afraid of testimony by judges—especially if the judges’ old-fashioned assumptions were rebutted by a panel of distinguished law professors. Goldfarb, however, worried that senators might not see the weakness of the judges’ position and that press coverage might help judges carry the day against VAWA. Someone remarked that judges seem to have little respect for Joe Biden.
Then Eleanor Smeal, president of the Fund for the Feminist Majority, made a strong and obvious statement: VAWA needed its own judges. VAWA’s supporters, she said, can’t counter judges with only professors, and certainly can’t counter Chief Justice Rehnquist. “Fight fire with fire,” she said, according to notes from the NOW Legal Defense meeting: Fight their judges with “judges that support us.”
We do have judges on our side, responded Goldfarb, but they aren’t willing to speak against Rehnquist.
Then, said Smeal, You don’t have equal firepower. Among state judges, men outnumbered women by a ratio of 10 to 1, and among federal trial judges men outnumbered women almost 14 to 1.
Goldfarb could think of only one group, however unlikely, that might provide a counterbalance to the weight of male judicial attack. That group, only a dozen years old and far from radical, was the National Association of Women Judges (NAWJ). It had helped create gender-bias task forces, themselves so useful for documenting the inequity that VAWA sought to address. Its newsletter was called Counterbalance.
The NAWJ had its origins in 1979, when two women judges from California decided the time had come to meet with peers across the country, many of them working as the only female judge in a court district or region. No official listings existed of women judges in America. The two organizers, Justice Joan Dempsey Klein and Justice Vaino Spencer, both of the California Courts of Appeal, found help from Professor Beverly Blair Cook of the University of Wisconsin. In the process of writing a history of pioneering women judges, Cook had compiled a partial list of names.
Starting from the professor’s list and adding other names they found, the two judges came up with an estimate: America had perhaps three hundred women judges. Fifteen states had not a single woman judge. The entire federal court system had only twenty-eight women judges—a number that had more than doubled from 1976 to 1979 thanks to President Jimmy Carter. Working from their partial list, Klein and Spencer issued invitations for the first meeting of women judges in America. Approximately one hundred women decided to fly to California for a meeting at a hotel in Westwood, right opposite UCLA, from which women law students volunteered to assist.
AT THIS FIRST MEETING of the NAWJ in October of 1979, judges laughed and cried and stayed up late and drank jugs of wine and told what Justice Klein called “war stories.” For starters, it seemed to Klein that almost every woman had a story of being chased around a judge’s desk. Klein had been chased too, by male judges, first when she was a lawyer and later when she was a young judge—not that she dwelled on it. She was, as she later recalled, “a good-lookin’ kid—nice legs. I was a little hotshot, and there I was: fair game.”
The meeting’s war stories went beyond sexual pursuit. Almost all the judges had stories of women in court being called “honey” or “dear.” One judge from the Midwest had colleagues who, when they started talking “streety,” as she put it, liked to call women “bitches.” And behind the war stories lurked some clear discrimination, perhaps none more telling than Justice Klein’s experience, a year earlier in 1978 when she was named administrative presiding justice for the entire second appellate district of the California Courts of Appeal. That position meant that she oversaw hiring decisions, including staff for the court clerk’s office. She would never forget her early dealings with the court’s longtime clerk. Meeting him in his office, she immediately saw that he liked having what she called “girly pix” with “women’s bare breasts on the walls.” But pictures aside, what struck Justice Klein most was that the clerk’s office employed not a single woman and not a single member of a racial minority group. She suggested to the clerk that it was time to change. “There will be no women clerks here,” she would always recall him saying, “Over my dead body.”
How could the clerk of the court say this to his boss? Here was a state employee telling a state judge that her court systematically and invidiously discriminated against women. Here was a “state actor” (in the language of constitutional law) announcing that he violated the equality protection guarantee of the Fourteenth Amendment of the Constitution. Did the partial victories of Ruth Bader Ginsburg and others, beginning in 1971 with the case of Sally Reed, mean nothing in the California courts? What, for that matter, of Wendy Webster Williams’ 1970 victory in Sail’er Inn in the California Supreme Court? California women had won the chance to work as bartenders, but nine years later California women still had no chance to work as court clerks? Justice Klein told her clerk that his job was getting beyond him. Then she appointed a new administrator to take over the hiring.
The mood at this first meeting was summed up a few years later by one of the women who flew west, Judge Gladys Kessler, then on the Superior Court of the District of Columbia. Kessler had, a few years out of Harvard Law, teamed up with Susan Deller Ross to teach one of the earliest courses on women in the law. Kessler recalled the first gathering:
As more than 100 women judges gathered—at their own expense, on their own time, not knowing the sponsors or the tone of the meeting, but acknowledging their own heartfelt need for such an organization, it readily became apparent that an historic event was occurring.
As the women talked, many came to realize that the tone and motive for gathering originated at least partly in what one of the founders later called the “very lonely, very isolated lives of those women judges.”
In the three days of their first meeting, the founding judges of the NAWJ moved fast. They elected officers, created a statement of purpose, adopted three initial resolutions, and chose Washington, DC, as the site for their first convention. For officers, the choice of leader was both natural and emblematic. As president, they elected Justice Joan Dempsey Klein, who was descended from California’s first judge but had been discouraged from practicing law by her parents and by her counselors at school—who had urged her to become a teacher because, she recalled, “That’s what girls do.” As a statement of purpose, the women judges composed a fairly moderate list of intentions, which included
to promote the administration of justice; to discuss legal, educational, social and ethical problems mutually encountered by women judges and to formulate solutions; to increase the number of women judges so that the judiciary more appropriately reflects the role of women in a democratic society; and to address other important issues particularly affecting women judges.
Adding precision to that somewhat-vague statement of purpose, the founders voted to adopt three concrete resolutions: the NAWJ supported the equal rights amendment, opposed membership by judges in clubs and other organizations that refused to admit women, and urged the U.S. president to appoint the first woman to the Supreme Court.
Approximately fifty judges who could not attend that first gathering in October of 1979 asked to join the NAWJ, and they too became founding members. One was then a county judge from Arizona, Sandra Day O’Connor. Most NAWJ judges could not have guessed how effectively she had been working toward a Supreme Court appointment, for which NAWJ colleagues would soon support her. Back in October of 1971, from her position then as a state senator, she had written President Richard Nixon to urge him to appoint a woman to the Supreme Court. At the time, Nixon was looking at two vacancies on the Court and weighing competing pressures. In favor of a woman were his wife, his daughters, and, he believed, the chance to win votes in the next election. Opposed was the chief justice of the United States, Warren Burger. Burger had already sent word that, as Nixon put it (captured then by tape but not made public until 2000), the chief justice “couldn’t work with” a woman justice. Burger threatened to resign.
A week after that threat, Nixon made a choice that surprised O’Connor: he nominated her close friend, William Rehnquist. O’Connor had dated Rehnquist when both were students at Stanford Law School in the 1950s, and she had taken him home during a law school holiday to her family’s Arizona ranch. Later, when both had married and settled in Arizona, their two families gathered on weekends for hiking trips into the mountains. They were such good friends that on one occasion a few years before Rehnquist’s nomination, the families planned a two-week pack trip together. When an illness for one O’Connor child forced the parents to cancel, the Rehnquists took the mother of Sandra Day O’Connor on their long trek along the Gila River. In 1969 he joined the Justice Department.
As soon as O’Connor learned that Nixon was nominating her longtime friend, she began organizing allies. As thanks, he wrote back that the organization supporting him seemed to have emerged primarily as “a result of your doing.” After attending his swearing in and seeing the Supreme Court for the first time, O’Connor stayed in Washington for the next few days and visited with the new justice and his family.
As the NAWJ met in October of 1979, with the goal of advancing a woman to the Court, they were unaware that another social connection had just developed between O’Connor and an important justice. That August, O’Connor had met for three days with Chief Justice Burger, entertaining him on a houseboat on a remote Arizona lake. Serendipity, as Joan Biskupic reports in her 2005 biography of O’Connor, had created opportunity. A relative of friends—John and Gail Driggs, the mayor of Phoenix and his wife—was the chief justice’s assistant. He and Burger were traveling to Arizona in August of 1979 for a judges’ conference. The Driggs invited them to cruise the red-rock beauties of Lake Powell. To add to the depth of lawyering and camaraderie, the Driggs asked the O’Connors if they would like to go boating with the chief justice. “Would we ever,” replied O’Connor’s husband. Sandra Day O’Connor and Gail Driggs began buying food to cook. During bright days on shipboard, through breakfasts and dinners and watersports, the chief justice warmed to O’Connor. That November, Burger invited her to join him on a trip to Britain, for a conference on Anglo-American law, as a representative of America’s judges.
About two weeks after the first official convention of the NAWJ in Washington in 1980, and in the closing weeks of that year’s presidential campaign, Ronald Reagan made a surprising announcement: if elected president, he would nominate a woman to the Court. Soon after winning election, Reagan had his chance. Possible nominees mentioned by the press included Joan Dempsey Klein, who was said to have Republican connections.
But the nomination went to O’Connor, who seemed to come from nowhere. Apparently unknown to outsiders and the press was that she had dated a future justice and later fought for his approval to the Court, and that she had entertained the current chief justice for days on shipboard in the Arizona wilds. After the chief justice worked to plant her name with Reagan, she then charmed the president with talk of her cattle-ranching past. O’Connor’s exceptional nomination, albeit mysterious in origin, won the support of the NAWJ.
The exceptional nomination proved far from the rule for Reagan. To other courts, he appointed few women. During a gathering of the NAWJ in 1982, Dennis F. Mullins, a low-level official in the Justice Department office that was reviewing judgeship candidates, explained the problem to the New York Times: “A large number of women who have the required experience,” he said, “do not share the President’s strict constructionist political philosophy.’’ He added that these women and their supporters did not know how to get a judge nominated: they had been insufficiently “aggressive or successful” in currying the support of powerful senators.
Currying could engender honeying. In 1985, in her role as president of the NAWJ, Judge Martha Craig Daughtrey led a delegation to Washington to urge President Reagan to appoint women judges. When one of the most powerful senators, Strom Thurmond of the Judiciary Committee, entered the room, he started honeying. The room was a “bachelor’s paradise,” he announced. “I want to congratulate you lady judges,” he said, according to the Washington Post. “You really don’t look like judges, you look like young ladies.”
Old Strom had pulled an old trick: say something that sounds flattering, and if women complain, they sound bitchy. One woman in the room whispered to the woman next to her that “I just want to know what a lady judge looks like.” Whispering, not bitching, went with currying. “Honey stories” might tell something about the powerlessness of women judges, but they created a case of damned if you complain and damned if you don’t.
THE MOVE BEYOND THE TELLING of honey stories by individual judges, to the creation of bias reports by judicial task forces, began partly thanks to a decision made by Judge Marilyn Loftus of New Jersey to attend meetings of the NAWJ. This move had the potential to show the wide-ranging problems that women encountered in courts, the benefits of appointing women judges at all levels, and the difficulty of male-dominated courts in addressing violence against women.
In 1961, Marilyn Loftus graduated from law school and began rising in law so quickly that, as she later recalled, she was too busy for feminist activism. She went straight from school to the state attorney general’s office, and by 1969 she had become first assistant attorney general for New Jersey. Then in the early 1970s women’s groups began pushing to have women named to the bench, as she later recalled, and soon after, she became Judge Loftus of the Superior Court of New Jersey—which brought more hard work, far from the realm of women’s issues. When Judge Klein in 1979 gathered the names of three hundred judges to invite to Los Angeles, she missed Loftus, who received no invitation.
In the summer of 1980, Judge Loftus got a surprise call from a friend, Judge Sonia Morgan of the New Jersey appellate division, who had gone to LA the year before. Morgan told Loftus about the next conference and invited her. “We’re all judges,” Loftus remembered telling Morgan. “We don’t need to be in a women judges group.” To her surprise, after she arrived in Washington for the 1980 conference, Loftus had a marvelous time. At the next annual conference, in Detroit in the autumn of 1981, Loftus walked into a program on gender bias in the courts offered by Judge Hortense Gabel of the New York State Supreme Court and Professor Norma Wikler of the University of California.
The study of gender bias in the courts had spent most of the past decade failing to begin. The concept had its origin one day in 1969 soon after an attorney from Louisiana named Sylvia Roberts had won one of the earliest sex discrimination cases brought under Title VII of the Civil Rights Act of 1964. Roberts then met with a judge, Griffin Bell, who was empowered to give Roberts’ client the job that her victory entitled her to: “switchman” for a telephone company with the genteel-sounding name Southern Bell. To Roberts’ horror, the judge worried aloud whether her client, Lorena Weeks, could do that job. A switchman, he said, would have to know a lot about electricity, and he “didn’t even know how to fix his own air conditioner.” How could a woman, he seemed to worry, handle a male job that befuddles a male judge? Roberts proffered that Weeks’ husband was an electrician—hoping the judge believed that man and woman in marriage are legally one, or at least that husbands tell wives what to do. Weeks got the job. (Judge Bell later, after serving as attorney general of the United States, became a partner in the law firm that lost at the Supreme Court in 1984 after arguing that the Constitution’s right to freedom of association permitted it to refuse to elect women to partnership.) “I realized then and there,” Roberts later recalled, “that if we did not help judges to get past their own preconceptions about men and women, Title VII and all the other laws we were passing and changing would just be words on paper.”
A year later, at the founding of NOW Legal Defense, Roberts became its first general counsel. Her proposal for a program to train judges about gender bias won support from her organization. The proposal also aligned with a 1971 study by two professors at NYU, John A. Johnston Jr. and Charles L. Knapp, who concluded that “‘sexism’—the making of unjustified (or at least unsupported) assumptions about individual capabilities, interests, goals and social roles solely on the basis of sex differences—is as easily discernible in contemporary judicial opinions as racism ever was.” Support from potential funders did not come, however; some insisted that judges were unbiased by definition.
NOW Legal Defense persisted. Students at NYU went into courtrooms as “court watchers” who then reported examples of judicial bias. From well-publicized cases, the organization culled odd judgments. From Colorado: after a man broke into a woman’s trailer, hurled her to the floor, and pushed his hands into her clothes and vagina, a judge, dismissing a sexual charge, called the attack an “attempted seduction.” From Wisconsin: a judge gave only probation to a teenage rapist on grounds that, within our modern and permissive society, the boy was responding “normally.” From Connecticut: dismissing an indictment in an attempted rape, a judge said, “You can’t blame someone for trying.”
Finally in 1980, NOW Legal Defense managed to initiate what it called its National Judicial Education Program to Promote Equality for Women and Men in the Courts, with Professor Wikler as its founding director—taking a leave of absence from her teaching as a tenured professor of sociology. Wikler soon afterward asked the NAWJ to join as a cosponsor. She encountered brief debate. One judge suggested that the association should focus on the needs of children. Another countered that NAWJ would lack purpose if it failed to assist women who appear in America’s courts. Soon NAWJ joined in formal cooperation.
The first presentation on gender bias before a formal judicial education program came in November of 1980, at the National Judicial College in Reno, Nevada. Professor Wikler, speaking at the invitation of a judge who taught there often, titled her presentation “Sexism in the Courts.” Some judges apparently objected. Wikler later heard, she told a friend, that in the back row three state supreme court justices had been throwing spitballs toward her.
A year later, in November of 1981, following some successful presentations to judges and shortly before her return to full-time teaching in California, Professor Wikler addressed the conference of the NAWJ in Detroit. With her was her successor as director, a 1974 graduate of Columbia Law School named Lynn Hecht Schafran.
Schafran had a fine background for a job educating judges about bias. In her last year at Smith College in the early 1960s, she had planned to apply to law schools until she learned that Harvard Law only a decade earlier had refused to admit women. Appalled, she turned to another interest, art history, and earned a master’s degree at Columbia. Drawn still to legal issues, in 1971 she enrolled at Columbia Law, a year ahead of the arrival of its first woman professor, Ruth Bader Ginsburg—whose course on women in the law Schafran took in the fall of 1972. The next term Schafran took Ginsburg’s Equal Rights Advocacy Seminar and then in the summer worked for her at the Women’s Rights Project of the ACLU. There Schafran focused on efforts to eliminate discrimination in private clubs that refused to admit women—clubs to which judges sometimes belonged.
When Schafran expressed interest in clerking, Ginsburg sent her to the judge who had welcomed her when other judges refused to hire a woman clerk. During that clerking year, Ginsburg invited Schafran to the victory party to celebrate Justice Brennan’s opinion in Wiesenfeld. In reply, Schafran told Ginsburg the story about Brennan’s first woman clerk, who became his crucial drafter for Wiesenfeld. He had at first refused to hire her on the grounds she was a woman; only after her law school pushed did he concede. As Schafran’s story to Ginsburg made clear, both of them knew, from their earliest days as lawyers and clerks, that judges discriminate against women.
After her clerkship, Schafran moved to litigating for a large New York firm but managed to find time to help Ginsburg on a case designed to challenge sex-segregated high schools. Responding to that use of time in a formal review before colleagues, one of whom had approved Schafran’s work with Ginsburg, the chairman of the firm’s litigation department berated her. “If you think that’s what the law is all about,” he said looking at Schafran, “you don’t belong here.” Schafran agreed. She did think that was what the law was about, and she did not belong there.
In 1978, a new opportunity led Schafran toward work with judges and discrimination. A former colleague at her firm, who had become legal director for NOW Legal Defense, asked her to serve as the first national director of what became known as the Federation of Women Lawyers Judicial Screening Committee. Designed to assess possible judicial nominees and to find qualified women, it set out to evaluate a range of qualities including what it called demonstrated commitment to equal justice under law. In 1979 when Professor Norma Wikler (who said that in her academic life she had “never met a judge”) agreed to help NOW Legal Defense create its judicial gender-bias education program, Schafran began advising her. As Wikler prepared to return to teaching, Schafran agreed to take her place as director shortly before Wikler was scheduled to speak at the 1981 annual conference of the NAWJ in Detroit. At that meeting, when Judge Marilyn Loftus heard a presentation on gender bias by Professor Wikler and Judge Gabel, she realized that, as she put it later, women were “not being treated equally” in courtrooms. For Judge Loftus that was the moment, as she said later, “when the light went off in my head.”
AFTER RETURNING TO HER CHAMBERS in the superior court in New Jersey, Judge Loftus contacted Robert Lipscher, the administrative director of the Administrative Office of the Courts. Courts have a problem with gender bias, she told him. He responded with openness, urging her to create a program for the next New Jersey Judicial College, the three-day annual meeting at which the state’s judges gather for study and discussion of important issues.
Judge Loftus agreed, but she had a concern suggested by Wikler and Schafran in their presentation: could he set up a study for New Jersey? The administrative officer said he needed to discuss the idea with the New Jersey chief justice, Robert N. Wilentz. With his broad powers, Chief Justice Wilentz did something neither Judge Loftus nor Lynn Hecht Schafran had dreamed of: he decided that gender bias demanded a “task force.” Draft a task force mandate, he told Loftus, and come back with a list of good members.
But when she returned with a draft stating that the task force would investigate “whether gender bias exists in the New Jersey judicial branch,” he objected. “What,” Judge Marilyn Loftus would always remember him asking, “do you mean whether?” He crossed off whether and wrote in that the task force would investigate “the extent to which gender bias exists” in the courts of the state of New Jersey.
The New Jersey task force gathered thirteen state judges and another twenty members including a prosecutor, two deputy attorneys general, some officials of the New Jersey State bar association, and five law professors including Nadine Taub from Rutgers law school. The only member of the committee not from New Jersey was Lynn Hecht Schafran, who was now director of the National Judicial Education Program to Promote Equality for Women and Men in the Courts.
In the fall of 1982, one committee designed a survey including questions asking members of the court system to state whether they had seen incidents of sexist behavior, had seen women given less credibility than men, or had seen differences in the impact of judicial decisions on women and men. More than 850 attorneys responded. During the winter of 1983, Judge Loftus sent working subcommittees of attorneys and judges to seven different regions of the state to invite attorneys to speak candidly. They gathered another two hundred attorneys’ opinions.
Back came variants on the “honey” stories, some adding new insight: a woman attorney recalled the story of a colleague who informed a judge that she had “problems” with her case, only to hear him respond that “women are the problem.”
Greater than problems with judges were those with fellow attorneys. Compared to judges, one woman attorney reported, “the conduct of male counsel is unquestionably more outrageous.” She had, she reported, needed to “deal with everything from comments on my clothing and appearance to outright propositions.” Another added that “most sexism and resentment seems to come from male attorneys.”
Such stories might have merely added to the great anecdotal pile of legal sexism, had Judge Marilyn Loftus not made sure that the task force had a statistician to direct its surveys. Thus anecdotes became data. To the survey’s question whether they had seen judges appear to treat women litigants or witnesses disadvantageously, the response was yes from 71 percent of women but only 30 percent of men. Revealing was the difference in their responses and therefore their perceptions.
Beyond the sexism of judges, the survey elicited stronger condemnation of attorneys. To the nearly identical question—whether they had seen legal counsel appear to treat women litigants or witnesses disadvantageously because they were women—the response was yes from 83 percent of women and 47 percent of men.
Always women seemed to see more discrimination than men. Did judges view women’s expert testimony as less credible than men’s? Yes, said 41 percent of women and 9 percent of men. Did judges view female attorneys as less credible? Yes, said 61 percent of women and 15 percent of men. Did judges make jokes demeaning to women? Yes, said 69 percent of women and 40 percent of men.
In November of 1983, the New Jersey Supreme Court Task Force on Women in the Courts prepared to present its findings as the final event in that year’s New Jersey Judicial College. A summary had been prepared in case the press showed interest, and seven committee members had prepared to speak in what Judge Loftus saw as “very very careful” presentations. No one wanted the New Jersey courts to seem benighted. As Judge Loftus was walking to the presentation, she asked Chief Justice Wilentz if he would add a brief comment, which she saw him hastily scribble on a sheet of yellow paper.
When time for the gender-bias task force’s presentation finally came, at the end of three days of judicial educating, judges looked ready to leave. A few stood up to depart early. Chief Justice Wilentz cut them off. “You sit down,” Judge Marilyn Loftus recalled him saying. “You need this.”
After that rough start, the presentation went smoothly. “Gender bias is a national problem,” Lynn Hecht Schafran explained, reassuring New Jersey judges that they were not being singled out for criticism. Others discussed the group’s summary, which stated, in part,
Stereotyped myths, beliefs and biases appear to sometimes affect decision-making in certain subject areas, e.g. damages, domestic violence, juvenile justice, matrimonial and sentencing. Additionally, it appears that there may be inequality of treatment of men and women in the legal and judicial environment (courtroom, chambers and professional gatherings).
To follow the presentations and distribute the careful press summary, the court’s public information officer had scheduled a press conference—to the great surprise of Schafran, who had seen that most courts want only judges present during judicial education sessions. What task force members did not know was that a reporter from the New York Times had been sitting throughout the main presentations, unobtrusive and not exactly invited, in the back of the room; he then skipped the press conference.
“PANEL IN JERSEY FINDS BIAS AGAINST WOMEN IN THE STATE COURTS” was the next day’s headline on the front page of the New York Times. After quoting the summary about “stereotyped myths, beliefs and biases,” it credited Chief Justice Wilentz for creating the task force and then reprinted his hastily scribbled remarks:
“There’s no room for gender bias in our system,’’ Chief Justice Wilentz told the assembled judges. ‘‘There’s no room for the funny joke and the not-so-funny joke, there’s no room for conscious, inadvertent, sophisticated, clumsy, or any other kind of gender bias, and certainly no room for gender bias that affects substantive rights.
“There’s no room because it hurts and it insults. It hurts female lawyers psychologically and economically, litigants psychologically and economically, and witnesses, jurors, law clerks and judges who are women. It will not be tolerated in any form whatsoever.”
The New York Times article created a ripple effect. In New York, Chief Judge Laurence H. Cooke—at the behest of Supreme Court Judge Betty Ellerin—created a task force for his state. New York’s report hit hard in its overview:
The Task Force has concluded that gender bias against women litigants, attorneys and court employees is a pervasive problem with grave consequences. Women are often denied equal justice, equal treatment, and equal opportunity. Cultural stereotypes of women’s role in marriage and in society daily distort courts’ application of substantive law. Women uniquely, disproportionately and with unacceptable frequency must endure a climate of condescension, indifference and hostility. Whether as attorneys or court employees, women are too often denied equal opportunities to realize their potential.
Where New Jersey surveyed almost 900 attorneys and court personnel, New York surveyed almost 1,800. Where New Jersey created a rather slim report, New York produced a phone book–sized document of more than three hundred pages. Further extending beyond the lead of New Jersey, which devoted modest space to the issue of how courts respond to domestic violence, New York gave the fullest treatment in its report—its first and largest subsection, sixty-six pages—to “The Court’s Response to Violence against Women.”
Regarding violence against women, New York judges set a high standard for candor. Judge Richard D. Huttner, the administrative judge of the New York City Family Court, for example, testified that he had heard a colleague make a statement, with which Judge Huttner at first agreed, concerning victims of domestic violence:
Why don’t they just get up and leave? They have been taking these beatings all these years and now they want me to intercede. All they have to do is get out of the house. What do they want from me?
Only later, Judge Huttner said, did he come to dispute that colleague’s view.
On the subject of rape, the New York task force proved particularly strong. It opened with the statement that “rape is a violent crime that until recently was virtually unprosecutable in New York” because the law “provided more quarter for the accused than protection for the victim.” New York law had tilted against victims, said the task force, in most areas. Corroboration: as late as 1972, New York had the strictest requirement in the country, demanding that corroboration of a victim’s testimony “extend to every material fact essential to constitute the crime.” Resistance: as late as 1982—during years in which some New York law enforcement officials were urging victims in rape attempts to submit rather than resist and thus risk injury—New York law required that a victim prove her “earnest resistance.” Marital rape exemption: in 1984, the year the New York task force began operation, the New York Senate failed to repeal the state law that restricted a wife from charging her husband with rape.
As in New Jersey, the New York task force gathered statistics that assisted the transformation of anecdote into data. To determine whether acquaintance rape was judged as “real rape,” as Susan Estrich asked in her book of that title, New York surveys asked whether judges demonstrated less concern about rape cases in which the parties had some acquaintance. The response was yes—judges seemed less concerned—from 74 percent of women and 53 percent of men.
Because of New Jersey and New York’s lead, other states followed. In 1985, the NAWJ established the National Task Force on Gender Bias in the Courts, with Judge Loftus as its first chair. By 1988, the Conference of Chief Justices of state courts adopted a resolution urging every state to create a task force on gender bias in the courts and, building beyond that model, a task force on gender and ethnic bias as well. By 1990 states publishing reports of gender-bias task forces included California, Colorado, Florida, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, Rhode Island, Utah, and Washington.
Federal courts proved far more resistant than states to examining gender bias. Not until 1987 did a federal court invite a presentation by the National Judicial Education Program, and the invitation came from a former NOW Legal Defense board member, Marilyn Patel, who had by then become judge of the United States District Court for the Northern District of California. In 1990 the Federal Courts Study Committee continued the resistance, considering but rejecting a proposal to encourage task forces on problems of gender bias and race bias. The reason, said the committee: “the quality of the federal bench and the nature of federal law keep such problems to a minimum.” Despite that resistance, two of America’s eleven federal circuits decided, without the Study Committee’s recommendation, to begin their own task forces in the 1990s. First, in response to urging from local lawyers, came the DC Circuit Judicial Council. It appointed as its chair Judge Clarence Thomas. (Nothing happened for two years, until after Thomas joined the Supreme Court and left the task force.) Second, again responding to regional attorneys, came the Ninth Circuit Task Force on Gender Bias in the Courts. That task force would quickly involve federal judges from all across the western states—Arizona, California, Oregon, and Washington—in a process that led to a far-reaching report and to a climactic launching of its report, which would have profound effects on VAWA.
And so, starting in the state courts and moving toward the federal courts, reports from the gender-bias task forces accumulated, most of them thick as urban phone books. Aligned on a shelf, they made an impressive display: reams and reams of documentation of gender bias, historic and current, permeating American courts.
Most attorneys, judges, and law professors never saw that impressive display. Libraries at major law schools received copies, but they usually shelved the reports by state, scattering them through the stacks. Not until Victoria Nourse of the Senate Judiciary Committee began in 1991 to receive copy after copy in the mail from Lynn Hecht Schafran, and to recognize their value for VAWA, did the task forces’ reports as a unified body of work gain a significant audience. Nourse may have been the first person beyond the leaders of the National Judicial Education Program at NOW Legal Defense or the NAWJ who had ever seen the potential power of almost a decade of surveys and investigations into judicial gender bias led by America’s National Association of Women Judges.