Sunday, July 9, 2017

Sunday Reading: Rising Above


Given the recent social and political climate, here's a quick disclaimer. Today's post absolutely does not deny the importance of standing up and speaking out bluntly regarding truths that those in disagreement may find harsh or alienating. The role models I am describing do not, by any stretch of the imagination, shy away from arguing things that make others uncomfortable. See, e.g., Justice Ginsburg's Shelby County v. Holder dissent (starting page 32), Justice Sotomayor's Schuette dissent (starting page 51), and Justice Sotomayor's Trinity Lutheran dissent (starting page 27). Also, as she notes in her memoir, Justice Sotomayor once reported a law firm when an attorney, during a recruiting dinner, said that she could only have gotten into Yale because of affirmative action. Assuming law school then was anything like law school now, that's a highly scary thing to do. My role models "rock the boat" when needed. My point here is solely about conduct within the narrow confines of the workplace, in contexts where it is necessary to get things done.*

I've noticed that one thing unites those I admire most in the legal profession. It isn't something all of them would voice in these exact words, but Justice Ruth Bader Ginsburg puts it best in her "Advice on Living":
When a thoughtless or unkind word is spoken, best tune out. Reacting in anger or annoyance will not advance one’s ability to persuade. . . . Collegiality is crucial to the success of [the Supreme Court's] mission
The same, in my experience, goes for legal work, particularly in litigation, and interactions with colleagues and opposing counsel. Justice Sonia Sotomayor's excellent memoir (one of the books that has made the strongest impact on me) doesn't say this as such. but it's strongly implied. In particular, she casts no stones about not getting a full-time offer from her summer firm, blaming only herself. Given how long it took the industry's doors to open to women (see, e.g., the section on the 1970s in this academic article and this piece on more recent trends), it's not a huge stretch to speculate that prejudices about race, gender, and the combination thereof may have played a role. 

These role models are people who treat every person, even those voicing views sharply in contrast with their own, with the utmost respect and civility. The most vivid and well-know example is probably the famously close friendship between Justice Ginsburg and the late Justice Antonin Scalia (his Romer v. Evans dissent may be instructive as to why this may be a shock, i.e. in paragraph two). They are people who rise above the slings and arrows directed their way in order to be the best attorney they can be. 

In Justice Ginsburg's case, she encountered particularly overt sexism, given the timeline of when she attended law school and began her career. You'll rarely hear her speak of it. I had to search hard for a readily accessible online citation for how things were: "Upon graduation from Columbia Law School with top honors in 1959, she received no job offer from any law firm in New York City, presumably because white shoe law firms were aghast that a woman, a mother and a Jew would dare think she was qualified for the job." She has also written that, back then, law firms simply "would engage no women" as a matter of absolute policy.

There is a difficult balance to be struck between exhibiting the collegiality, civility, and grace that the best attorneys embody while still taking a stand for what is right. It has sometimes been so, so hard to rise above. It's entirely likely that, in the next few months or years, I'll sometimes write about some of the challenges in this profession that make it difficult to face down everything with the ideal amount of collegiality. But that's a story for another day.

P.S. This piece from a former Justice Ginsburg clerk regarding his decision to stay home with his daughter for a time is entirely unrelated, but also a good read.)

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