In Brooklyn Federal Court, a judicial dissonance over activism's role in expanding civil rights and equality for women ?

In a cursory review about why voters vote against their own interests, Forbes contributor Bruce Y. Lee postulated several reasons, including : "You just don’t see the whole system and all the connections, causes and effects." Mr. Lee asserted that, vis-à-vis the 2016 presidential election, he was having trouble reconciling why voters would support Donald Trump when he promised to cut taxes at the same time he was critical of rising deficits under President Barack Obama. You can't seemingly have one at the same time that you deal with the other, Mr. Lee implied.

A similar dissonance is playing itself out in U.S. District Court in Brooklyn, where litigation pursued by the publisher of Progress Queens is revealing an institutional disconnect amongst some of the nation's most influential women.

Chief Magistrate Judge Roanne Mann has issued a Report and Recommendation in a lawsuit over the records being sought under a request filed in 2013 under the Nation's Freedom of Information Act. The records that were requested fell in 18 different categories about how the Government prosecutes activists over their activism. In the Report and Recommendation, the Hon. Chief Magistrate Judge Mann advocated for the dismissal of the litigation after Defendant U.S. Department of Justice produced a red herring of documents that represented the partial pleadings in the Government's prosecution of Lt. Daniel Choi over his activism to overturn "Don't Ask, Don't Tell," the U.S. armed services' former policy of discrimination against LGBT servicemembers.

The recommendations of the Hon. Chief Magistrate Judge Mann closely followed the arguments made by the DOJ in refusing to disclose records that were shown to exist or that were likely to exist. The Hon. Chief Magistrate Judge Mann has served for over 20 years on the Federal bench. She was a former law firm partner before her judicial appointment. She is a 1972 graduate of Yale College and a 1975 graduate of Stanford Law School, according to her official biography.

In the year of her college graduation, activists involved in the second wave of the women's rights movement succeeded in getting the Equal Rights Amendment passed through the U.S. Senate, which was the last remaining obstacle before the legislation could be sent to the States for ratification. Although ratification was never achieved, the second wave of the women's rights movement succeeded in using various tactics to alter other laws and American culture. In the same year as the ERA passed Congress, the U.S. Supreme Court, composed entirely of men, ruled in Roe v. Wade to permit women to seek abortions.

One of the primary tactics used by advocates for equal rights was activism. Women picketed businesses, which discriminated against female employees and female customers ; marched for equality, demanding passage of laws guaranteeing equality ; and pressured educational institutions, which hesitated to reform curriculum described as sexist or not reflective of social movements. History has shown us that the long march toward true human equality has necessitated activism. Because that long march is not over, there is still yet a role for activism today.

Like leadership positions in business, leadership positions in the practise of law, whether in the judiciary, for lawyers working as public officials, or for attorneys working in private practise, has largely been an "old boys' club." Opening the door to that club took networking, litigation, persuasion, and passage and enforcement of laws against the discrimination in the hiring of women. More than just some women also had to work harder than men to get beyond being chosen for token jobs in the legal profession.

Making progress to achieve advances in equality took all forms of work -- activist strategies, legislative approaches, litigation, political organising, and electoral pathways. The methods by which women accessed liberation or equality were not equal. Some methods were élitist and reserved for women of means. Running for president on the ticket of a major political party, for example, was only made available to a woman, who was willing to embrace the role of big money in politics. It was just a matter of joining the old boys' club, not reforming it.

The appearance that women have achieved equality is supported by statistics, which show that women now make up a larger percentage of the judiciary, for example, even if parity has not been achieved. Approximately one third of justices serving on the U.S. Courts of Appeals and the U.S. District Courts are women, according to a Fact Sheet published by the National Women's Law Center. Amazingly, the National Women's Law Center pointed out that, "There are still 6 district courts around the country where there has never been a female judge."

The Hon. Chief Magistrate Judge Mann is not the sole woman with a role in the litigation seeking the release of records about how the Government prosecutes activists. The fate of the litigation now rests with U.S. District Court Judge Joan Azrack. Two Assistant U.S. Attorneys, Rukhsanah Singh and Kathleen Mahoney, have been representing the DOJ in its refusal to comply with FOIA until the Courts enter Orders compelling compliance. Another Federal prosecutor, Angela George, has prosecuted activists for their activism. Two other women in positions of leadership to decide whether the DOJ will voluntarily comply with FOIA are, of course, Attorney General Loretta Lynch and Principal Deputy Assistant Attorney General Vanita Gupta, the latter who is head of the DOJ's Civil Rights Division. Activism by women got these jurists into positions of power, and now these jurists are deciding the fate about the transparency of, and the accountability over, how the Government prosecutes activists.

In the most recent filing made by the publisher of Progress Queens in objection to the Hon. Chief Magistrate Judge's Report and Recommendation, the foreshadowing of the regressive incoming administration of President-elect Donald Trump was invoked. President-elect Trump has hinted as selecting justices to the U.S. Supreme Court to overturn women's reproductive rights, calling the matter of abortion not settled, needing to "go back to the [S]tates," setting the stage for a possible set-back in the cause of women's liberation, particularly given that the ERA's fate was undone by its final States' strategy. Because equality of the sexes was never fully codified, women may be see their civil rights eroded under the incoming administration, possibly triggering a new wave of activism to defend the gains for equality that were made by activists in the second wave of the women's rights movement. Women's rights activists are already protesting President-elect Trump. A large-scale march on Washington has also been announced by women's rights activists.

Because the Government has shown no restraint on surveilling, arresting, and prosecuting activists, not even under the administration of President Obama, those practises are expected to continue -- unexamined -- into the administration of President-elect Trump.

During the FOIA litigation, the Hon. Chief Magistrate Judge Mann has not responded to the arguments made by the publisher of Progress Queens in respect of the central tenants of FOIA that support Government transparency to ensure accountability of the Government. If only the Hon. Chief Magistrate Mann and the other women defending the DOJ's refusal to comply with FOIA were to recall how they got into positions of leadership, in the first place, perhaps the critical role of activism as an access point to Government transparency, accountability, and reform would not be lost on them.

  -- Progress Queens