The XX Factor: What women really think.

Mukasey and Sex Discrimination

At today's confirmaton hearing for Michael Mukasey, Bush's pick for attorney general, Sen. Dianne Feinstein asked questions about a disturbing ruling Mukasey made as a federal judge in the Southern District of New York. Here are the facts (I just looked them up): In 1983, a woman police officer was sexually assaulted. She later testified that the attack took place over six hours and was by a fellow officer. But when she initially reported the assault, she said she'd been attacked by a man she'd met at a laundromat instead of naming her assailant. A few days later, she named the male officer. He denied the accusation and passed a lie dectector test. So did she.  Still, she was charged criminally for having falsely stated that she didn't know the man who'd attacked her. She was also suspended from the NYPD without pay, and eventually fired. Her alleged rapist retired with his police pension intact.

 Two years later, the woman brought a sex discrimination suit. Judge Mukasey ruled that she couldn't bring her case to a jury because there wasn't enough evidence to support it. The U.S. Court of Appeals for the Second Circuit reversed, saying that it was the jury's job to decide whether the allegations were true and "whether the discipline meted out to [the woman officer] was unlawfully disparate to that received by her male fellow officer." A trial followed. The jury ruled for the woman and awarded her more than $260,000 in damages. (Her name is in the record, but somehow I don't feel right about publishing it here--a whole different issue.) For a second time, Mukasey thwarted the woman's claim, this time by setting aside the jury's verdict. Mukasey said that "no reasonable jury could infer an unconstituional pattern or practice of gender discrimination" from the facts. (I'm quoting the Second Circuit again.) And he ordered a new trial. Also for a second time, the Second Circuit reversed. It held that Mukasey's grant of a new trial was an abuse of discretion.

 Feinstein wanted to know if Mukasey considered this an "unusual" case. Mukasey said that to call it unusual was "a stark euphemism." And then he talked about all the women law clerks he has hired--"each of them hired on the merits, on the merits." He also talked about his effort to get a woman admitted to an all-male club he used to belong to, and leaving the club when he failed.

But his handling of the sex discrimination case seems awfully rigid, doesn't it? He got knocked down by the Second Circuit, and he insisted he was right, at this woman's expense. Trial judges aren't often that stubborn. I wonder what was going on here.