Recently, there was much consternation about Judge Kacsmaryk’s decision to delay posting notice of a hearing. Indeed, a coalition of media organizations actually argued that this decision could violate the First Amendment! Ultimately, the proceeding went as planned, with no disruptions or incidents. There were protests outside. And the event was widely covered by the press. Thankfully, democracy did not die in the darkness.
Throughout this entire process, I chuckled. People who had zero experience with federal district court litigation suddenly became experts. In reality, trial judges have vast discretion over their dockets and courtrooms. In any normal case, this sort of request would never have raised an eyebrow. And the information would have never leaked to the press. But, with the abortion ad-hoc nullification machine at maximum power, all the usual rules are ignored.
If you’d like some evidence of how much power judges have to keep their proceedings secret, consider the sidebar conference. Generally, everything a judge says is in open court. But the judge can ask the parties to “approach” the bench, at which point the judge and attorneys can have a private conversation that the witness, jury, and other parties cannot hear. Some courts have noice-cancelling devices that make it impossible to even hear anything. (The district court that I clerked in did not have that technology, and was very small, so the parties were asked to speak low, but not too low so that the court reporter could not hear them.) Generally, the court reporter transcribes these proceedings. But sidebars may be redacted from the public transcripts.
A particularly egregious exercise of sidebar-redaction came during the Harvard affirmative action trial in Boston federal district court. Jannie Suk Gersen, a professor at Harvard, writes about what happened in Judge Allison Burroughs courtroom. During the trial, the judge held lengthy sidebar discussions with counsel, and declined to release those matters in the public transcript. Indeed, those sidebars were not initially included in the record that was transmitted to the United States Supreme Court!
The secrecy would continue. Gersen filed a letter with the court, asking to unseal the sidebars. Judge Burroughs held two hearings about which sidebars to unseal. And the public was barred from those hearings! Only the other attorneys could attend. Gersen, who had made the initial request, was not allowed to attend that hearing. Gersen later attended a public hearing about unsealing those transcripts, where the judge announced the rulings. (The judge had already told Harvard and SFFA what her rulings would be at the prior sealed hearings.) Lawyers for Harvard objected to releasing the information, even as the case was pending before the Supreme Court! Why?
… Harvard argued vigorously against unsealing certain sidebars, reminding the judge that concern about “the press gallery” was the reason she had sealed some discussions in the first place and maintaining that she should keep them sealed “because of the increased or the continuing public attention on this case.”
Imagine that. A district court limiting some access to the public in light of “continuing public attention.”
Apparently, the Supreme Court became concerned by the incomplete record, and asked for the sealed proceedings. Recently, the District Court sent the Supreme Court a “password protected and encrypted” thumb drive containing sealed materials. And what was Judge Burroughs trying to keep secret? A crass joke about Asian-American college applicants.
Thomas Hibino worked at the Boston location of the Department of Education, Office of Civil Rights. William Fitzsimmons is the Harvard Dean of Admissions. In 2012, Hibino emailed Fitzsimmons an attached memo:
On November 30, 2012, amid a friendly back-and-forth about lunch plans, Hibino e-mailed Fitzsimmons an attachment that he described as “really hilarious if I do say so myself!” Hibino explained, “I did it for the amusement of our team, and of course, you guys”—presumably Harvard admissions officers—”are the only others who can appreciate the humor.” The joke memo had been written on Harvard admissions-office stationery, during the earlier investigation. It was purportedly from an associate director of admissions and parodied the admissions officer downplaying an Asian American applicant’s achievements. The memo denigrated “José,” who was “the sole support of his family of 14 since his father, a Filipino farm worker, got run over by a tractor,” saying, “It can’t be that difficult on his part-time job as a senior cancer researcher.” It continued, “While he was California’s Class AAA Player of the Year,” with an offer from the Rams, “we just don’t need a 132 pound defensive lineman,” apparently referring to a slight Asian male physique. “I have to discount the Nobel Peace Prize he received. . . . After all, they gave one to Martin Luther King, too. No doubt just another example of giving preference to minorities.” The memo dismissed the fictional applicant as “just another AA CJer.” That was Harvard admissions shorthand for an Asian American applicant who intends to study biology and become a doctor, according to the trial transcript.
Fitzsimmons e-mailed Hibino back, “I’m stunned!” Fitzsimmons apparently believed that the admissions officer whose name was on the Harvard stationery had actually authored the memo. She “passed away a few years ago and I’d forgotten that she had such a sense of humor,” he wrote. “We’ll ‘de-construct’ at lunch. Where should we go?” Hibino wrote to clarify, “No, no! I did that from purloined stationery from your shop! Pretty convincing, huh?!!!!! I forget—are we getting together here or there?” (Through Harvard’s press office, Fitzsimmons declined to comment, and calls and messages to Hibino were not returned.)
It seems the Office of Civil Rights stole stationary from Harvard, which they used to put together this awful memo. The Dean of Admissions thought the memo was funny. Justice Kagan recently mused that maybe she has no sense of humor. Maybe I don’t have a sense of humor either. I’m not laughing.
And it also isn’t funny that the judge tried to keep this information out of the record:
The sidebars about the memo show that S.F.F.A. wanted to question Fitzsimmons, during his courtroom testimony, about his reaction to the memo’s “stereotypical comments about Asian Americans.” S.F.F.A. argued that the dean of admissions was “laughing along” with a joke including Asian stereotypes. Harvard objected that the memo and Fitzsimmons’s reaction should be excluded as “irrelevant,” because it was “so tangentially related to anybody’s credibility” or to a claim of Harvard’s “discriminatory animus” against Asian Americans. Furthermore, Harvard claimed that the move to introduce this evidence was “calculated to be handed to the press” and “intended to embarrass Dean Fitzsimmons.”
This information would seem to at least be relevant to the Supreme Court’s consideration. But the trial judge, apparently, thought it better to keep this matter out of the record.
The Supreme Court should direct the Solicitor General to obtain the memorandum from the Department of Education. This document needs to be in the public domain.
Gersen continues:
Judge Burroughs did not think that it was fair to assume that Fitzsimmons found the stereotypes in the memo funny, and she didn’t want what she saw as his “wholly ambiguous” comment to be public. “It has the potential to be explosively prejudicial, not to me because I take it for what it is, but in terms of the external world’s response to this,” she said. “At some point, I feel for the guy,” she added, asserting that asking him about the memo on the stand would be “designed for media consumption and not for any great search for the truth.” She ruled the memo and e-mails not relevant, and excluded them; if there were a jury, it would not have heard about them. And because she also sealed the sidebars, the press and the public knew nothing of them, either. . . .
But we also know that Judge Burroughs thought that the material could “explosively” affect how the public saw the facts. So, her decision was not just to exclude the evidence but also to seal it and attempt, even long after the trial ended, to prevent the public from knowing about a federal official’s allegedly anti-Asian remarks. An attorney familiar with the case told me, “Judge Burroughs mistakenly conflated admissibility under the rules with her own decision, as the fact finder, that this evidence would have no weight with her. And then, because it would have no weight, it would be sealed to prevent embarrassment to Harvard witnesses.”
Are judges allowed to make decisions based on concerns about media consumption?Back to Judge Kacsmaryk. He delayed posting the announcement of a hearing till the evening before. The public still would have been able to attend, and the press could have schlepped from Dallas. It would have been harder to bus in protestors. And there was not enough time to dry-clean their Gileadian bonnets. But Kacsmaryk’s position was a reasonable attempt to deal with an unknown security situation.
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