RETIRED PROBATE Judge Christina Harms has lost her chance for a dream job helping Boston University Law School students find clerkships and internships with federal and state judges. She’ll get over it. But BU Law School lost something dearer when it dangled a job offer in front of Harms and then withdrew it: its good name in the legal community.
So what spooked BU Law School? In January, the state Appeals Court reversed a controversial decision by Harms, who had ruled that a schizophrenic woman should undergo an abortion and sterilization. The wording of the Appeals Court was unusually strong, scolding Harms for raising the sterilization issue “out of thin air.’’ The 31-year-old woman’s parents had sought guardianship only for the purpose of requiring her to undergo an abortion.
BU officials said that the content of Harms’s decision didn’t factor into their decision to cut her loose. Nor, they say, should this case raise the slightest concern about judicial independence. Instead, BU Law School simply “did not want to worry about whether an individual who was at the center of a controversy would need to overcome that obstacle when serving as the public face of the School,’’ according to a Feb. 1 letter from a BU attorney.
Don’t expect to find BU Law School on the short list for a Profile in Courage Award anytime soon. Retired Appeals Court Judge Rudolph Kass called the school’s decision “craven.’’ And he’s being charitable. A law school — more than any educational institution — should understand the need for judges to render their decisions free of public pressure, intimidation, or reprisals. Instead, BU thought only about what is expedient.
“It’s a very bad example to students who are getting a good whiff of this,’’ said Kass, who serves on the ethics committee of Brigham and Women’s Hospital.
The job of a family court judge is a lot tougher than the job of a law school dean or an appeals court judge, for that matter. Among the hardest cases are those involving the doctrine of “substituted judgment’’ - when the court is asked to don what has been described in the legal literature as “the mental mantle of the incompetent.’’ And once in that new robe, the judge must determine what the mentally incompetent person would do if he or she were competent.
The pregnant woman from Norfolk County at the center of the controversial case already had undergone one abortion and given birth to one child, who was in the custody of grandparents. She professed to be “very Catholic.’’ But Harms could find no evidence of religious practice. The woman was overtly delusional during her court hearing. And Harms worried that her condition would worsen if doctors withheld antipsychotic medication to avoid damage to the fetus. Harms concluded that had the woman been competent, she would not have chosen a life of serial unplanned pregnancies and serial abortions. Hence the sterilization order.
The judge’s decision doesn’t sit well with medical ethicists, who reject potentially irreversible procedures performed on subjects against their will. Most people would likely balk at the sterilization ruling and feel relief that it was set aside by the Appeals Court. Count me in that camp. But popular opinion isn’t the issue here. Harms heard the evidence and decided the case in accordance with her good-faith interpretation of the law. She did her job. And if she made a mistake, the Appeals Court rectified it.
People in the field of law routinely make and honor such distinctions. That’s why BU Law School looks so weak-kneed for concluding that Harms was too radioactive for “immediate and sustained interactions with students, alumni, and the judiciary.’’
Harms isn’t suing for the job. But she isn’t letting BU off the hook, either.
“You’re a law school,’’ Harms said. “You’re not Macy’s.’’
During her 23-year career on the bench, Harms was known as a “creative and venturesome judge,’’ said Kass. BU certainly could have used someone with her drive and nerve to secure more clerkships and internships. Last year, BU Law School ranked a flaccid 51st in the nation in the number of graduates who receive judicial clerkships in federal courts, according to a US News ranking.
BU Law School’s faintheartedness isn’t likely to improve its profile or clerkship placement rate. Why, after all, should judges want to form a relationship with a law school that doesn’t have their backs?
Lawrence Harmon can be reached at firstname.lastname@example.org