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I’m not a litigator so don’t have an answer for you, OP. I wish I did. Can you speak to a more seasoned litigator in your firm?
To the other posters: why does the comment and context matter? Are there contexts in which it is ok to make racist comments from the bench? I hope not. Do you think your judgment of whether this was racist is better than the person who heard it? Is it relevant whether it was part of the official proceeding vs after one hearing ended and another began?
OP’s statement on its face seems to me to call out the kind of structural racism we are all concerned about. Assume it was the worst racist comment you can imagine - what does OP do?
Thank you Partner 1- I’ve posted the comment below. Your assessment is spot on though; I am asking for help based on the litigation associate/ judge dynamic, not an assessment of whether what was said is actionable. Posters would learn well to follow your lead.
Have to hear the comment and the context
Let’s hear the comment.
Let’s hear the context of the comment.
I think your approach depends on the judge. Is this a judge you know well? Is it a judge who simply needs to be educated, who may not realize that the comment is racist? Is the judge open to being educated? If yes, I would privately let the judge know. If not, is there a more senior person in your firm who could have the conversation? If the judge is truly a lost cause perhaps have a conversation with the chief judge in that district.
Thank you for this thoughtful advice. This is a very old judge who is likely not open to be educated. I do not have a personal relationship with him.
To all who asked, the judge was making small talk with an attorney in the room about the college program his son was admitted to. He referenced a specific school and said:
“My son wasn’t accepted to {college program} because everyone they let in is {ethnicity}. They’ll apparently let anyone in who’s {ethnicity}.”
Everyone in the courtroom, judge included, was white. In the elevator afterward, opposing counsel told me how aghast he was as well.