Mansplaining to Judges is a thing and we are all in very deep trouble.

This was the only picture of female judges I could find on the Internet. OK, not quite, but pretty close, and most of the others were Judge Judy or RBG. (That's Sotomayor, Ginsburg, O'Connor, and Kagan, created by an enterprising woman who wanted to fill a void). 

I went to Richmond this week for an argument at the Fourth Circuit Court of Appeals. My job affords the neat opportunity on occasion to argue cases to panels of 3 judges who ask smart, probing questions about whatever legal issues the parties have argued in the clients’ briefing.

There was an important en banc rehearing before my argument, so I went to watch. When the court sits en banc, the entire set of active judges for the Fourth Circuit hears the case instead of just a three-judge panel -- in this case FIFTEEN. It was a lot of black robes. The lawyers did a good job and I was genuinely interested in the argument as a spectator. But it wasn’t the legal acumen of the judges or the skill of the lawyers that stood out.

Instead, I noted that counsel for one of the parties had a very different manner of addressing the female members of the Court from the way he spoke to male judges. When he answered questions from men, his responses were deferent and congenial – even when the judges disagreed with his argument. When he responded to the women on the panel, he was borderline patronizing. At one point, one of the judges became so frustrated as the lawyer tried to explain a case to her that she herself had raised in asking the question that she cut him off and said “I understand the case, I’ve read it.” I can’t tell you how obtuse this seemed from the gallery. She was a Supreme Court clerk, went to Yale, worked at a major CD law firm and in the Obama administration. She's a straight badass and does not, I’m guessing, frequently need things explained, let alone her own questions. But even this didn’t deter him.

If you come at the king (with your condescending nonsense) you best not ... well just best not. 

The attorney in question was not an obvious clod or overt misandrist troglodyte. He was an effective advocate. He handled most of the legal questions ably and it was a long, tough argument. I have never met him nor seen him argue before. But based on my one observation, my guess is he probably has a great deal of ostensible, conscious respect for the women judges to whom this tone was directed. I am going to give him the benefit of the doubt and assume that he would be surprised if not shocked by my observations. I don’t think I’m being unfair in my characterization and I conferred with another attorney who watched the argument and had a similar takeaway.

Part of the reason it was so striking was the panel’s makeup: ten men and five women, so the female judges are a substantial minority presence on the court, but still greatly outnumbered and surrounded by male voices on the bench (curiously there are at least as many if not more women than men lawyers in the Fourth Circuit, but that’s another story altogether…).

The lawyers in this argument all happened to be men as well. The effect was to heighten the already gender-slanted environment of the legalworld and make the mere fact of a woman judge speaking notable among so many male voices. And the women on the bench were not shy. Four of the five women on the panel asked a substantial number of questions (by contrast there were at least a few male judges who said nothing).

But every time this particular lawyer responded to a man – whether that judge agreed with his position or not (and there were several male judges who did not and a few who did), the response was more typical of what you hear in a Supreme Court Argument – there is some intellectual jousting, but also a great deal of deference to the judge asking the question (though to be clear the SCOTUS is not free from boorish male behavior by a longshot). When a woman spoke, there was a lot more pushback and a lot more explaining by counsel – making the response less an answer to the question than an implicit assumption the female judge misunderstood the lawyer’s argument. More like what boys do to girls in classrooms than what lawyers do before judges (and unfortunate in any context).

Is this the reality of American men: the degree to which we are bred to condescend to women is so deep and ingrained that, even in a situation where the man has no inkling or overt inclination to be condescending and belittling to women and the women in question are owed not only the normal amount of respect due another person but also those of their high ranking office (appellate judges are revered to the point of being fetichized in the legal universe) and the longstanding traditions of the court, the effect of a man’s basic manner of address is still condescending and belittling? Those are some despondency-creating levels of dysfunction.

I argued my own case (to a woman I would dare not condescend to – at least I hope! -- and 2 men), then drove home to Greensboro feeling world weary about the prospect of raising two boys in our culture – one that not only creates this sub-rosa recapitulation of toxic male behavior, but tolerates its overt expression at the very highest levels. I can try to counteract this in my home but, to be honest, I’m still trying to figure out all the ways I am messed up about women. I grew up in this culture too, if anything in a slightly more retrograde era (I didn’t go to Georgetown Prep, but still). I also need to root all these behaviors out of my own makeup, because I’m not dense enough to think that just because I was in the gallery and not up at the podium in this instance, that someone else hasn’t eyeballed me talking to or about a woman in an equally problematic way. 

I am dense enough to try, though. I talked to the boys last night at dinner about it. It came up organically because despondency was apparently on everyone’s lips: the boys wanted to talk about “what’s going on with Donald Trump and that guy who’s having to go to court or something because someone says he raped them.” I divined that to mean Brett Kavanaugh, current member of another Court of Appeals (god help his female colleagues and clerks), going before the Senate.

How do you explain this mess to boy children? 

Oof. The allegations against Judge Kavanaugh make the lawyer’s tone with women judges I witnessed pale in comparison. Kavanaugh's conduct, awful as it may be, may be less egregious than that of the commander-in-chief, in the historical aggregate. How can a culture that would tolerate Donald Trump as president and make Brett Kavanaugh’s nomination a close question be expected to inculcate boys with anything other than toxic levels of baseline misogyny in their makeup?

I actually expressed my despair about this to the kids. I told them I worried that, no matter what was true in our house, they weren’t just learning from me, but from friends, teachers, TV, music, etc. And, for that matter, I wasn’t a perfect role model. As an upper middle class white dude, I’m uncomfortably close to the center of the Venn diagram of American toxic masculinity (I worded this slightly differently to the boys). So I’m not sure I’ve got the right end of the misogyny stick myself (there should totally be a misogyny stick, BTW. If misogyny arises, break glass).

The boys’ responses were as follows: 1. Freddy said “We don’t treat girls/women like that at my school (thank god I opted for the Quaker school in 2018 of all years!) so I’m not only getting bad influences; and you’re not an idiot, like those guys.”; 2. Benny: “I am NEVER raping anyone. Ever. No raping. Raping is bad. People should never rape. What are all the different kinds of rape?” The upshot of my intervention for Benny seems to be he feels empowered to use a new word her previously thought prohibited and will now be mentally and verbally cataloging violent sex crimes. So there’s that. [pats self on back]. 

At the end of the day, what hit me hardest in some ways was how very badly we are missing Nina. In all the ways, but very keenly in this one. Having a strong female role model is important for the boys. Also having the chance to witness a man and woman interacting in what would hopefully be positive, non-misogyny laden ways. I can still work on myself, but it’s in a vacuum and, as with the lawyer today in court, it’s only when the issues come into real world contact with women that it becomes manifest. I have to not only hope I can teach them the right ways to behave – or at least the right principles – without screwing up myself. Also I hope the boys get enough contact and experience with women that they can develop the right kind of habits themselves. Because most of the rubber hitting the road (sorry, unfortunate metaphor, but I can’t afford an editor) isn’t going to be under my tutelage. It’s going to be in Brett Kavanaugh’s dorm mixer or in whichever awful den of male toxicity one of the boys finds himself lodged were he’ll have to decide what’s right and act accordingly.

So, yet another reason why having your wife die of cancer is dumb and another little jot of despair in case you were running short of either this week. You're welcome!