Hon. Mary H. Murguia, U.S. Court of Appeals for the Ninth Circuit

There are a lot of ways to celebrate the contributions of women to human history. And “the women of DLA Piper” (their description) opted to gather people together yesterday to hear from Judge Mary Murguia, newly elevated to the U.S. Court of Appeals for the Ninth Circuit.

It was an inspired choice.

When she took the bench in 2000, Judge Murguia was the first Latina to serve as a federal Judge in the District of Arizona. And her legal career has spanned a period as an experienced prosecutor at the state and federal level, as well as time as an administrator at the Executive Office for U.S. Attorneys.

The judge’s remarks were focused on the occasion of Women’s History Month, and her compelling life story was an appropriate subject for such an occasion.

She recalled that, as a new assistant district attorney in Kansas City in the mid-1980s, she and the two other women lawyers were assigned all of the sexual abuse and domestic-violence cases (along with many other cases). But the gender biases of the times provided a surprising benefit, she said: Those cases, unlike many others, were more likely to go to trial. And the challenges that they carried in poor or missing physical evidence and witness problems made her and the other women lawyers work harder to become excellent trial lawyers.

Through her career, she also had the chance to work on the Timothy McVeigh case and other high-profile matters.

Judge Mary Murguia at DLA Piper event, April 28, 2011

Judge Murguia recalled that when she and U.S. District Judge Susan Bolton both took the federal bench, they immediately tripled the number of women trial judges in the U.S. district (joining longtime Judge Roslyn Silver).

Many may recall where they were when John F. Kennedy was shot, she said (she was only 1 at the time). But different mileposts mark her life. She said she remembers where she was when Geraldine Ferraro was nominated as vice president to a major party ticket. And she can picture when the name of Sandra Day O’Connor was forwarded as a Supreme Court nominee.

Like many successful lawyers, the Judge credits her family with her achievements. Her Mexican American parents worked long and hard for their seven children. Today, six of the seven have post-graduate degrees. And four of them are lawyers.

Judge Murguia laughed as she remembered overhearing her mother and godmother talking about her and her twin sister Janet (then working in the White House and today the President and CEO of the National Council of La Raza).

Her godmother told their mom that she must be very proud to have a federal judge and a White House staffer as daughters. The two sisters, in the next room, wondered how their mom would reply, but they may not have expected this: “I would be very proud if they knew how to make flour tortillas.”

“I am a witness to and evidence of their commitment to the American Dream,” Judge Murguia said. “All the credit goes to them.”

Representing the DLA Piper law firm were litigation associate Laura Kam and partner Cynthia Ricketts, who introduced Judge Murguia. Congratulations to them and all the women who put together such a great program.

Some event photos are at the Arizona Attorney Magazine Facebook page.

This morning, Chief U.S. District Judge John Roll will be laid to rest in Tucson. As we and others reported before, he was gunned down on January 8 in an attack that was directed at U.S. Rep. Gabrielle Giffords.

Many will undoubtedly attend the funeral mass at St. Elizabeth Ann Seton Catholic Church. But far more will be unable to make the trip. For those people, honoring the judge may be as close as your federal courthouse—or even the Web.

As Above the Law has reported, the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, Alex Kozinski, has ordered flags at all federal courthouses in the Circuit to be flown at half-mast. But he’s gone further than that. He wants to share what that looks like.

The Ninth Circuit website includes a growing photo gallery of flags at those courthouses. And Judge Kozinski asked Above the Law readers whether they could assist the Circuit: If you see that your local federal courthouse is not represented, please take a photo (with flag) and send it to the Circuit.

When I read the news item at ATL, I was a bit skeptical. For I could pretty easily picture in my mind’s eye what a courthouse looked like, and what a flag looked like. Aggregating hundreds of them would provide a lot of volume, I thought, but not much insight.

Well, I was wrong. As a visual tribute to a fallen judge—one of the Circuit’s own—it is very powerful. I found myself peering intently at every courthouse, moved more and more as I scrolled down the page.

As you might guess, Arizona’s own federal courthouses reside near the top of the page. Take a few quiet moments today to look at the page and to think on John Roll’s service. In an upcoming issue of Arizona Attorney Magazine, we will run a memoriam to the judge, who was a legal leader and a friend to the magazine.

Three related items:

  • The State Bar of Arizona, in partnership with the University of Arizona, has established the John M. Roll Memorial Fund. Money used will provide scholarships to students attending Judge Roll’s alma mater, the James E. Rogers College of Law at the University of Arizona. More information is here, and you can contribute here.
  • Because every interaction is an opportunity for learning, this news story got me wondering about the origins of flying flags at half-mast. Leave it to Wikipedia to make all clear. Among the fascinating facts:

“The tradition of flying the flag at half-mast began centuries ago, to allow ‘the invisible flag of death’ to fly at the top of the mast—which signified death’s presence, power, and prominence. In some countries, for example the UK, and especially in military contexts, a ‘half-mast’ flag is still flown exactly one flag’s width down from its normal position, and no lower, to allow for this flag of death. This was the original flag etiquette.”

  • Next week, I will report on another look at courthouses—this one will be in book form, used to celebrate a law firm’s anniversary and to exhibit pride in its trial accomplishments.

Today, the Ninth Circuit made an intriguing ruling—not so much for its conclusion, but for its rejection of a certain portion of the state’s evidence. Do you agree?

In Breiner v. Nevada Dep’t of Corrections, the Court held that Nevada’s refusal to allow men to serve as correctional lieutenants at a female prison violates federal law. The result is that Nevada may not restrict to only women eligibility for promotions to supervisory positions at a female prison.

Here is the summary:

“In 2003, an inspection at the Southern Nevada Women’s Correctional Facility demonstrated that inappropriate sexual relationships between women inmates and male guards were frequent. In response to this problem and the media firestorm it caused, the State of Nevada decided that only women could be promoted to supervisory lieutenant positions at the facility. Several male corrections officers applied for the lieutenant positions and, when rejected, sued under Title VII of the federal Civil Rights Act of 1964. The federal district court for the District of Nevada (Dawson, J.) concluded that, because they could apply for other lieutenant jobs at other facilities, and because Nevada had lawful reasons for restricting the promotions to women, its policy was lawful. The Ninth Circuit reversed. Just because other promotional opportunities remained open to men, it reasoned, is not sufficient to permit Nevada to restrict certain promotions to women only.”

So far, I thought, it’s a moderately interesting case. Sure, some people may be pleased (and even surprised) at seeing the Ninth Circuit protect the rights of male workers as well as female workers. But a straightforward application of the law, especially when it protects any rights, is just a day at the office for the Circuit.

Reading further, though, I came across the Court’s reasoning in regard to the State’s position:

“Moreover, the district court’s determination that Nevada had good reasons to restrict the promotions at the all-female facility to women was flawed. Nevada argued that female lieutenants would be less likely to tolerate sexual misconduct by corrections officers and more likely to understand the needs of female inmates. The Ninth Circuit concluded that such claims rested on unproven and invidious gender stereotypes.”

Unproven and invidious? Maybe, but I might have expected “unproven and complimentary,” or “unproven and salutary.” I do understand how stereotypes, even “positive” ones, often serve as an obstacle to understanding and advancement (like the “model-minority myth” that Asian Americans must struggle with). Nonetheless, the phrase made me pause.

Though I cheer any ruling that makes the employment world a more equal place, I wondered about the evidence.

Could the State have proven up that part of its case? Does sharing the same gender—even across an officer–inmate divide—mean anything at all? And is there any way to determine who “would be less likely to tolerate sexual misconduct”? Is it at all possible that people at increased risk of being the brunt of such behavior might, I don’t know, get it more?

Maybe the Court was absolutely right, and such thinking is retrograde. But isn’t one of the benefits of our generation-long transformation to a more diverse workplace that when you gather people with multiple experiences, you get responses and outlooks that are multiple? That transformation has been a great and welcome one, and we still have quite a ways to go. But that evolution is premised, at least in part, on the notion that we shouldn’t hire people who are identical to ourselves if we want better results.

America has learned that difference is very important to the workplace. But important how? (as I’m sure Nevada wondered).

It’s quite likely I’m missing something here, so what do you make of this case? Could women corrections officers bring different and valuable insight to the job?

The opinion is available here.