His opening anecdote, however, involved not an attorney's weight but her attire. Specifically, the brown skirtsuit that Beth Brinkmann wore to argue before the Court in her role as a member of the Solicitor General's office in 1996. Apparently then-Chief Justice Rehnquist wrote a letter informing Ms. Brinkmann's boss that he and his judicial colleagues didn't approve of the color. The SG responded by defending Ms. Brinkmann and noting that the presence of a significant number of women in his office was recent enough that a sartorial norm had not yet been established. From then on, however, the women of the SG's office wore black to court.
Were this an isolated instance of a jurist with somewhat eccentric ideas about clothing, there would be no need to comment. After all, Rehnquist is the guy who added gold stripes to the sleeves of his black robe after seeing a costume he liked in a Gilbert and Sullivan operetta. But over the past decade I've encountered several instances of judges who seem to moonlight as fashion police officers, particularly when it comes to women attorneys. (Let me hasten to note here that my judge -- that is, the judge for whom I clerked, the Hon. Morris S. Arnold -- would never be so crass, though he does have excellent taste.) Imagine appearing before these distinguished judicial brethren:
- The judge who asked an attorney wearing high-heeled leather boots with her skirtsuit to leave his courtroom and return with more appropriate footwear. In midwinter. In a notoriously cold midwestern city.
- The judge who from the bench informed an attorney that her jewelry was distracting.
- The judge who mentioned in conversation that he's fairly liberal-minded and allows women to wear trousers in his courtroom, but that some of his fellow judges disapprove of such apparel. Asked later to confirm this, he did so and added, "It's not necessarily the ones you'd think."
The underlying question here is whether unwritten dress codes are inappropriately -- and perhaps deliberately -- applied to undermine the professional authority of female attorneys who inadvertently violate them. Women's sartorial selections are indeed more likely to draw criticism than men's, not only because we've been dressing for business for a shorter time but also because we maintain a wider range of choices. (Just ask Hillary Clinton.) And public criticism is indeed a useful tool in the establishment of social norms. A dressing-down from the bench, however, is a sufficiently severe sanction that it should be reserved only for true breaches of decorum -- and then only if the issue really is the clothing and not the gender of the person wearing it.
Alternatively, any judge offended or distracted by counsel's attire could simply follow the lead of Lady Justice and don a blindfold.