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Is the judicial selection process in crisis?
Akron Law holds feminism conference to discuss issues in judiciary

Legal News Reporter

Published: November 2, 2016

These are dangerous times for judicial appointments, according to Sally J. Kenney, an expert on judicial selection and social movements.

Kenney, the author of the book “Gender and Justice: Why Women in the Judiciary Really Matter,” was the keynote speaker for “The U.S. Feminist Judgments Project: Rewriting the Law, Writing the Future.”

The two-day conference was held Oct. 20 and 21 at Quaker Square Ballrooms in Akron and was sponsored by The Center for Constitutional Law at The University of Akron School of Law.

“Just as our presidential politics have sunk to a new low, I believe our judicial selection process has been in crisis for some time,” Kenney told the crowd of judges, academics and students. “I’m pessimistic about the future, regardless of the outcome of the election.

“With the recent allegations about Donald Trump that surfaced before and after the second debate, I’ve watched Donald Trump pundits say they deplore Donald Trump’s propensity to sexual assault, but they support him anyway because the future of the Supreme Court is at stake. (Pundits say) it’s better to have a sexual predator for a president than let the Democrats replace Justice (Antonin) Scalia with a moderate the way Republicans replaced Sandra Day O’Connor with a conservative.”

Kenney spent much of her talk on how U.S. Republican senators refuse to even consider President Barack Obama’s March 16 nomination of U.S. Court of Appeals Judge Merrick Garland to serve on the Supreme Court.

“Although Garland is a white man who President Obama chose because he enjoyed bipartisan support, the Senate’s strategy of obstruction and delay has impeded President Obama’s attempts to make the entire federal judiciary more diverse and representative,” Kenney said. “Supreme Court nominations have always been contentious and sometimes the Senate has voted not to confirm. Yet never in our history have senators been so brazenly cynical in refusing to even consider a nomination.

“Is it because, as Senator Elizabeth Warren suggests, that they deny the legitimate power of our first black president?”

Kenney said it is important that more women and minority men serve on the bench, and that it is no longer enough that judges are well qualified.

“We need to know what their positions are on domestic violence and sexual assault,” she said. “Do they believe boys need their fathers even if those fathers were batterers? And joint custody puts mothers at risk? Do they believe women routinely lie about domestic violence in divorce cases or sexual assault in general? Do they easily dismiss women’s fear of stalkers and harassers? Do police officers and those serving in the military who are more likely than the general population to be batterers deserve to retain their firearms even after threatening intimates?”

Judges should consistently uphold rules even when those rules go against the political party of the president who appointed them, Kenney said, adding that senators should be held accountable for failing to do their job.

“No one disputes whether Merrick Garland is qualified. No one thinks he has extreme political views,” she said. “Now it appears senators can just say ‘no.’”

Kenney also said it is important that judges be willing to change positions when confronted with social facts.

“I think we should be able to demand that judges be the most distinguished members of the legal profession, without having to turn them into deductive machines or robots or think of them as neutrals,” she said.

Kenney said judges should also have mandatory retirement ages or fixed terms.

“I also believe the issue is not the difference women make on the bench, but the message their absence sends,” she added. “It is important to have women and minority men on the bench.”

The feminism conference drew 49 other presenters from across the country.

Local presenters included Eve Belfance, Akron law director, Wilson Huhn, professor emeritus at Akron Law, Judge Mary Margaret Rowlands of Summit County Common Pleas Court and Judge Elinore Marsh Stormer of Summit County Probate Court.

Tracy Thomas, director of the Constitutional Law Center and an Akron Law professor, said the conference attracted 210 attendees.

Thomas moderated a session based on the book, “Feminist Judgments: Rewritten Opinions of the United States Supreme Court.”

The idea of the book was to rewrite key decisions on gender issues with a feminist perspective. Thomas rewrote Manhart, a 1978 gender discrimination case, for the publication.

“People are pretty blown away by some of the ideas,” said Thomas. “The idea is not to talk to ourselves. The goal is to get people to re-think.”