ROGUE JUDGE Bans Jeannie Suk Gersen From Representing John Doe in Critical Title IX Due Process Case
One of the most important Title IX due process cases to reach a federal appeals court has been discredited before it even started. Harvard law professor Jeannie Suk Gersen, an influential critic of campus sexual misconduct proceedings has been banned from representing her Boston College client at oral argument next week. The legal team for “John Doe,” led by due process superlawyer Andrew Miltenberg, filed a motion for reconsideration Monday explaining Gersen’s importance to the team. Because of “personal tragedy” and related religious obligations for Doe’s original lawyer in the trial, and his other lawyer’s pending delivery of her child, Gersen was “retained specifically to take over writing the response brief” and arguing in court next week.
Why then did Judge David Barron unceremoniously toss her from the case?
It’s not that Doe will go unrepresented without Gersen, but Doe chose to bring in Gersen as the lawyer of choice to argue the appeal. That’s Doe’s right. So long as Doe can afford to do so, and Gersen is willing to take on the representation, a party has the right to be represented by the attorney of his choosing. But without explanation beyond “would create a recusal,” Judge Barron decided otherwise, and at the eleventh hour. As noted by Brooklyn College Prof. KC Johnson, who chronicles Title IX litigation, the panel hadn’t even been appointed when Barron issued the order. And he wasn’t on the panel when it was announced a few days later.
Judges, particularly those who have gotten a paycheck for the entirety of their legal career, often fail to consider that a client has to pay for their inadvertent decisions. Gersen was retained for her representation on this case, and Doe paid for it. Gersen certainly put significant time into the case in preparation for oral argument, and Doe paid for it. With Gersen tossed from the case, someone else had to scramble to prepare for oral argument in the case. And yet again, Doe paid for it. There is an actual out-of-pocket cost to such decisions, even if judges don’t consider such banalities to be their problem.
But here, to the extent any judge felt any inkling of conflict giving rise to the need for recusal, that wasn’t Jeannie Suk Gersen’s fault. It wasn’t Doe’s fault, who did nothing more than choose the lawyer whom he thought would best represent his cause, as is his right. The problem, if there really was a problem, is solely the judge’s. blog.simplejustice.us S.H.Greenfield thecollegefix-G.Piper
UPDATE: 1st Circuit reverses course. Gersen to represent Doe
