Female candidates for any job may be subject to questions or judgments based upon their personal life.  Sometimes it’s just an annoyance, but often such focus is illegal.  If an employer decides, for example, that a female employee is more likely to be absent or less likely to be willing to travel because of her family obligations, that is gender discrimination.  An assumption that she will quit when she gets married again reminds us of the 1950s.  And the hope that hiring an attractive woman will provide amusement for a boss looking for some love – well, that’s just jumping into a sexual harassment claim.

The Senate has been criticized in many quarters for its slow action on federal judges.  Many nominations are virtually free of controversy, yet are held up together with nominations considered too liberal or too something else to certain Senators.  These two judges are examples of nominations that everyone  Federal judges have a large workload, and vacancies have a delaying effect on civil cases, since criminal defendants have a constitutional right to a speedy trial.  It’s nice to have good news to end the year.

Neither of these appointments is controversial.  Both judges have solid credentials and good judicial reputations.  Senator Cardin, who is on the Judiciary Committee, praised them highly.

The major question is when the Senate will have time to consider them, since the summer may be consumed with the nomination of Elena Kagan to the Supreme Court.  The Senate can be quite slow in considering judicial appointments, and there are more than twenty lower court nominations made prior to Judges Hollander and Bredar.

The Supreme Court of the United States heads the most publicity shy branches of government.  The politicians in Congress need publicity for reelection, and many seem to crave it.  The President has no choice but to live in a fishbowl.  But the Supreme Court Justices are appointed and have no need for reelection or popularity.  Some probably shy away from publicity because they are naturally scholarly types, and others do so because judicial ethics and customs put a tight rein on what judges say in public.  To date, there is no videotaping of arguments, and the Justices have not looked kindly on lower courts’ admission of cameras into the courthouses.

Even with these limitations, though, the Supreme Court building is open to the public, and welcomes anyone to attend oral arguments on a first come-first serve basis.  The building itself is magnificent, and the courtroom especially is awe-inspiring (and not very large).  Regardless of whether one is inclined to visit, the newly redesigned Supreme Court website is terrific.

Information to guide visitors provides thorough information about the argument calendar, what cannot be brought into the building, and how to get to the court.  Without leaving your desk, researchers, or just interested citizens, can find lots of information including opinions,  transcripts of arguments, and sources for briefs.  (The Supreme Court link for recent briefs is not working as of this writing.)

Judge Keenan is the first woman jurist from Virginia to serve on the Fourth Circuit

One study found that in sexual harassment cases, plaintiffs were twice as likely to win if the judge was female.  The other study focused on judges of different races, and learned that plaintiffs lost just over half the time if the judge was African-American, but lost 81% of their cases heard before a white judge.

The ABA discussed the studies in a program called about “Diversity on the Bench: Is the ‘Wise Latina’ a Myth?”  Although Justice Sotomayor took heat for her comment, it rang true for many.  These studies concluded that the judges applied the law correctly.  The facts, though, are viewed differently depending on whose glasses are used.  We have all seen this phenomenon at work; a remark that seems innocuous to one person is perceived as a grievous insult by another.  A series of job assignments looks neutral to the white male, while the women easily interpret the pattern of discrimination.

We all bring the experiences of ourselves and our friends to the task of judging what happened in a stranger’s case, and was it motivated by discrimination.  Employment discrimination plaintiffs often choose to have juries decide their cases, since the accumulation of experience helps cut through bogus defenses.  Also, since many judges have excelled their entire lives, they have never felt held back by discrimination.  I believe some have grown to believe that discrimination does not truly exist, unless it is so blatant that there can be no alternative interpretation.  (And those cases settle.)

The problem arises with these blinders because federal courts  decide so many cases on summary judgment.  The judges look at the facts as presented by the lawyers, affidavits, and depositions, and frequently decide that there are not enough facts to warrant a trial.  And this is where the accumulation of experience, the perspective of the gatekeeper, does not let in the possibility that subtle actions whisper discrimination.

This opens a seat on the United States District Court for the District of Maryland.  The Senate has a lot of nominations before anyone will even be placed for a vote for this seat.  The scuttlebutt around Baltimore is that many very well-qualified jurists will apply for the seat, and probably some practitioners as well.