For those of us dinosaur lawyers or students of modern American history, that was how the House Un-American Activities Committee (HUAC) grilled witnesses whom it suspected of possibly being, well, un-American during the witch hunts (yes, Salem was not the only one) of the late 1940s and 1950s.
Using my Wayback Machine (apologies to Mr. Peabody), in the early 1950s, a group called the Hollywood Ten defied HUAC and refused to answer the question of whether they were then or had ever had any association, however brief, with the Communist Party. For their refusals, they were imprisoned and blacklisted for decades. But others named names to save their own skins and careers.
Today, the DEI ban is operational. Haven’t women and minority lawyers been chosen on merit, that we were the best candidate for the particular job? It wasn’t just that we had the credentials, the pedigree, the knowledge, the understanding. Also (and I don’t think that people chat about this in the context of DEI but perhaps they should), the emotional intelligence, the best EQ to connect with workplace colleagues and the best to connect with the clients, both present and future. (By the way, isn’t it ironic that March has been Women’s History Month, while February was Black History Month. What do you think will happen to those?)
How do we feel now knowing that we may have only been tokens, that the best qualified candidate for the particular position was obviously a white man who has been deprived of his rightful place in the legal hierarchy? How do we feel knowing that while all of us tried our best to do our best work, the best work (also known as lucrative work) was done and should have been done in the men’s locker rooms, on the golf courses, in venues that were previously men-only worlds and may be again? How does it feel to feel like the outcast, the excluded one, once again? Been there, got the T-shirt.
And what’s worse is the not knowing, the not knowing whether we were hired, promoted, or whatever on the basis of merit, or whether we were hired, promoted, or whatever, merely to check some boxes on various forms submitted to various government agencies at various times.
Depressing?
For women and minority lawyers, it haunts and plants seeds of doubt. Was I truly the best candidate? Why was I selected over others? Why was I not selected over others?
Hiring should not be just an algorithm. It wasn’t in the years when I was being hired. It remains both an external and internal decision. What if the “best qualified” doesn’t have the necessary people skills that are an essential part of the job? What if the “best qualified” looks fabulous on paper, but has the personality of a dweeb? How will hiring managers justify decisions made if the best qualified fits into one or more the DEI candidates? What will be the tests and who will decide what those tests are and their measurements? What does “merit” even mean in the hiring context? And the DEI ban extends not just to the federal government, but to those who work within it, or have clients within the federal government, or who represent clients who are federal contractors. (By the way, you know that Alina Habba’s appointment as interim U.S. Attorney for New Jersey was obviously merit based.)
Meanwhile, there’s been plenty of reporting about the Paul Weiss cave-in to the administration. It’s just one piece of the Trump revenge and retribution tour.
Among the myriad of executive orders, the president has now ordered Attorney General Pam Bondi to seek Rule 11 sanctions for what the DOJ calls “frivolous litigation” going back as far as eight years. If my math is right, that takes us back to the good old days of 2016. Don’t Rule 11 sanctions require proof? Is this the best use of the DOJ’s resources? Of judicial resources?
If Paul Weiss caved so easily, what does that mean for so many other Biglaw firms who already are or soon will be in the government’s cross-hairs? It’s now Jenner & Block’s turn in the barrel.
So, how are other Biglaw firms going to respond to the administration’s various and sundry EOs? What are they going to say? What are they going to do? Just like in Nazi Germany, silence today is complicity.
If lawyers don’t speak out in defense of our profession and the rule of law, then what hope do we have for either? We should not forget the oath we all took to protect and defend the Constitution. It still exists, at least right now.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
The post Are You Now Or Have You Ever Been (A DEI Hire)? appeared first on Above the Law.
For those of us dinosaur lawyers or students of modern American history, that was how the House Un-American Activities Committee (HUAC) grilled witnesses whom it suspected of possibly being, well, un-American during the witch hunts (yes, Salem was not the only one) of the late 1940s and 1950s.
Using my Wayback Machine (apologies to Mr. Peabody), in the early 1950s, a group called the Hollywood Ten defied HUAC and refused to answer the question of whether they were then or had ever had any association, however brief, with the Communist Party. For their refusals, they were imprisoned and blacklisted for decades. But others named names to save their own skins and careers.
Today, the DEI ban is operational. Haven’t women and minority lawyers been chosen on merit, that we were the best candidate for the particular job? It wasn’t just that we had the credentials, the pedigree, the knowledge, the understanding. Also (and I don’t think that people chat about this in the context of DEI but perhaps they should), the emotional intelligence, the best EQ to connect with workplace colleagues and the best to connect with the clients, both present and future. (By the way, isn’t it ironic that March has been Women’s History Month, while February was Black History Month. What do you think will happen to those?)
How do we feel now knowing that we may have only been tokens, that the best qualified candidate for the particular position was obviously a white man who has been deprived of his rightful place in the legal hierarchy? How do we feel knowing that while all of us tried our best to do our best work, the best work (also known as lucrative work) was done and should have been done in the men’s locker rooms, on the golf courses, in venues that were previously men-only worlds and may be again? How does it feel to feel like the outcast, the excluded one, once again? Been there, got the T-shirt.
And what’s worse is the not knowing, the not knowing whether we were hired, promoted, or whatever on the basis of merit, or whether we were hired, promoted, or whatever, merely to check some boxes on various forms submitted to various government agencies at various times.
Depressing?
For women and minority lawyers, it haunts and plants seeds of doubt. Was I truly the best candidate? Why was I selected over others? Why was I not selected over others?
Hiring should not be just an algorithm. It wasn’t in the years when I was being hired. It remains both an external and internal decision. What if the “best qualified” doesn’t have the necessary people skills that are an essential part of the job? What if the “best qualified” looks fabulous on paper, but has the personality of a dweeb? How will hiring managers justify decisions made if the best qualified fits into one or more the DEI candidates? What will be the tests and who will decide what those tests are and their measurements? What does “merit” even mean in the hiring context? And the DEI ban extends not just to the federal government, but to those who work within it, or have clients within the federal government, or who represent clients who are federal contractors. (By the way, you know that Alina Habba’s appointment as interim U.S. Attorney for New Jersey was obviously merit based.)
Meanwhile, there’s been plenty of reporting about the Paul Weiss cave-in to the administration. It’s just one piece of the Trump revenge and retribution tour.
Among the myriad of executive orders, the president has now ordered Attorney General Pam Bondi to seek Rule 11 sanctions for what the DOJ calls “frivolous litigation” going back as far as eight years. If my math is right, that takes us back to the good old days of 2016. Don’t Rule 11 sanctions require proof? Is this the best use of the DOJ’s resources? Of judicial resources?
If Paul Weiss caved so easily, what does that mean for so many other Biglaw firms who already are or soon will be in the government’s cross-hairs? It’s now Jenner & Block’s turn in the barrel.
So, how are other Biglaw firms going to respond to the administration’s various and sundry EOs? What are they going to say? What are they going to do? Just like in Nazi Germany, silence today is complicity.
If lawyers don’t speak out in defense of our profession and the rule of law, then what hope do we have for either? We should not forget the oath we all took to protect and defend the Constitution. It still exists, at least right now.
Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].
