Meet Judge Marcia Berzon. She Just Ruled That Migrant Children in ICE Centers Have a Right to Soap, Toothpaste & Brush, & Bed

Judge Marcia Berzon was the keynote speaker at the Cornell Conference on Labor and the Constitution today.

She did not discuss the immigration case because it is still pending.

However, she talked about her 40 year career as a female labor union lawyer and a judge on the Ninth Circuit Court of Appeals (for my students, a judge on one of the “kitty cat” circuits, where each circuit has its own personality).

Boiling down her talk:

First, while she has long advocated for unions, she also has experienced problems with them as her employer. She worked for the AFL-CIO (main labor federation) and had great mentoring! 
But in her many years, not once was a woman lawyer allowed to argue an AFL-CIO case to the Supreme Court. That used to be about a dozen cases per year.

There was a female labor lawyer senior to her. It pained Judge Berzon to see her colleague passed up for the biggest assignments.

Things got worse. When her colleague married a black man, she lost her job. No explanation given. Her friend took a job with a far-left union, the IUE (I use far-left seriously, it’s a union that over time has been tangled up with socialism and communism, back in the day). 

Judge Berzon talked about a case we will discuss in class on Monday: Hopkins v. Price Waterhouse. Every woman (and many men!) who is reading this post can be thankful for the decision.

Ann Hopkins was the only woman in a major consulting business to come up for partner-level promotion in a cohort of about 90 peers. She was an excellent performer but brusque. She swore on the job. Male partners put her case on her hold until she learned “to walk more femininely, talk more femininely, and dress more femininely.” 
By a 5-4 vote, the Supreme Court ruled that Price Waterhouse discriminated on the basis of a gender stereotype. The employer had mixed motives: A valid reason, and unlawful reason. This meant the burden shifted to her employer to prove it would have made the same decision even absent the sex stereotyping.

That ruling, according to Judge Berzon, made a big difference in her career. She didn’t spell this out. 

But she might have meant that she could be a mom and a lawyer (her daughter, Andrea Berzon, is a Pullitzer Prize journalist with the Wall Street Journal). It could have meant she didn’t have to wear makeup to the office-- or could wear pants to work. It could have meant she could swear just like the boys. (In labor law, that goes with the territory... it is not a polite practice.) 
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Judge Berzon also discussed how the labor law bar (attorneys) and academy (professors) have shrunk to levels not seen for the past century. When she worked as a lawyer, there were several dozen federal judges who were labor lawyers, either for unions or management (Supreme Court Justice William Brennan was a management lawyer, a son of a labor leader!). They understood working people and institutions such as protest groups and unions. Today, only four other judges out of 900+ federal judges have that experience.

On the labor law academy side, Cal-Berkeley hired its first such lawyer in the past 25 years in 2018. That’s Berkeley, the so-called Mecca of the Left. The number of tenure-line jobs for labor lawyers is usually ... zero every year. Once our generation dies, we do not know who will train these lawyers and who will do the basic research that is tried and tested in court cases. 

So much wisdom from a woman from Brooklyn who has overcome great odds to Make America Great Again!