* This transcript was edited and condensed for better reading experience. Click the subtitles below to watch the vivid, candid, full-of-laughter conversation between Judge Barkett and ILJ editor Kathy Zhang.
Judge Rosemary Barkett is the winner of the Prominent Women in International Law Award in 2017, and a judge on the Iran-US Claims Tribunal since 2013. Before her appointment to the Tribunal, Judge Barkett was on the Court of Appeals for the 11th Circuit for 20 years. Before that, she served as the Chief Justice of the Florida Supreme Court, and was the first woman Justice to serve on the Florida Supreme Court. More recently, in 2015 Judge Barkett was appointed to the Panel of Conciliators for the International Center for the Settlement of Investment Disputes. In 2016, she was elected Honorary President of the American Society of International Law.
Let’s start by talking a little bit about your background.
My father and mother were both born in Syria, in 1899 and 1905 respectively. After they married at a young age, they attempted to come to the United States, with my father’s brothers. But my mother was pregnant, so they had to wait. When they later tried to come, they were refused, having been caught by the limitations of an immigration law in force at the time. After my brother was born and the quota system refused permission to enter from Syria, they thought that if they managed to come through Mexico, then they could come and join their family in Florida. Some way or another—which is an amazing story in itself—at the age of 19 or 20 for my father and 16 or 17 for my mother, they managed, with a child, to travel from a place near Homs in Syria to Marseille, where they took a boat to get to Mexico. When in Mexico, they found themselves barred by the same quota immigration laws for entry into the United States. They spent twenty years in Mexico, where my siblings and I were born. My first language was Spanish, although my older brothers and sisters spoke both Arabic and Spanish. We ended up coming to this country when I was about 6, and I went to Catholic schools here and obtained my education thereafter in Miami.
How do you think being an immigrant and a child of immigrants have shaped your view about America and its promise, inscribed on the Statue of Liberty?
When I was growing up, my mother loved this country. She was a total fan of the “America,” —she spoke with an accent—and I derived a great appreciation and love for it from her. Throughout my legal career, the more I learned about the constitutional principles and the attempts to obtain equality, and the more I saw the country pick itself up and recover and try to do better when it fell the other way, the more impressed I became from a whole different legal perspective.
I was extraordinarily lucky that I had both the Syrian experience, the Mexican experience, and the American experience. The more experience that you are exposed to, the more understanding you have of the various viewpoints and perspectives that different people have. I am also very fortunate that in terms of my job description it works, because a part of what I think a judge has to do is to understand the positions that are presented, and you understand better when you have as wide a perspective as you can obtain.
As a human being, I just cannot minimize the tremendous opportunities and joy of having all of those experiences and music and food and people. I want everyone to have this experience! Not everyone can be born to immigrant parents, but they can go places, relate to people, learn languages, experience food and music, and be open to all of that. I think that makes you a better person. The similarities between people’s desires, needs, wants, and concerns seem to be the touchstone of gaining more understanding of how to make the world a little bit better.
Law school classes in recent years have become increasingly diverse in their multicultural fluency. Do you think this is going to shape the law going forward?
I hope so. Diversity is extremely important because we are a diverse race. We have to understand and represent the views of varying groups of people and perspectives. You cannot understand if you don’t open your mind in some fashion. You can’t always have the same experience, but you can learn about them by reading, travelling, and talking to people. You can try to understand why someone has a different perspective and what in them developed those perspectives. So yes, it is hugely important.
Do you think that drive to learn about different experiences and to hear and understand them informed your choice of career to be a lawyer and a judge?
It is very limiting to have one life—but I can’t say I’m disappointed in having chosen the law. I love the law, I loved being a lawyer, I love being a judge. I’m not sure I can answer the question of whether or not my experiences as an immigrant or my childhood informed that decision. I don’t consider myself a brilliant person by any means. I’m smart enough, but I’m not the philosopher that I would like to be… But the law ended up being a great fit for me. I love the concept of an organized society where people can interact peacefully with one another.
And this concept is facilitated by the rule of law?
Definitely. Except that people don’t define the rule of law the same, and that’s a huge problem. I have been to conferences all over the world, sponsored by all kinds of regimes, and everybody is speaking about the rule of law. But the rule of law as it is expressed in a country with a dictator is very different from the rule of law in a democracy or in a republic. I think a lot more work has to be done about trying to get people on the same page about what are the essentials that the world thinks of as part of what the rule of law should be. This is not easy because there are cultural issues that conflict with the rule of law, very frankly.
What was the transition from lawyer to judiciary like, and why did you decide to make that transition?
I started practicing law in a small trial law firm with 8 to 10 people. Like many small trial law firms, things went along very well for a while and then disagreement arose and people decided to go their own ways. Then, I decided to practice on my own for a year, which became a very hard situation to maintain—you are constantly on the run. So, I reached a point where I knew I would either have to go to work for a firm, or join somebody, or do something. At that point the members of the Judicial Nomination Commission approached me—I was practicing in a small legal community where everybody knew everybody, and people on the committee wanted a trial lawyer on the bench. They said I should apply, which was something that had never occurred to me. I never thought I could be a judge; I didn’t know anybody; I was not politically aware probably as much as I should have been. But I applied anyway, thinking that I could take a year or two as a judge and see the law from that perspective and I could become such a great trial lawyer after that. I got appointed, and I didn’t want to leave the bench at all because I love being a judge. It was a terrific and has been a terrific experience.
Can you tell us a little about your transition from the Florida Supreme Court to the Eleventh Circuit, and then to the Iran-US Claims Tribunal? What were the biggest differences you found between the state and federal institutions?
Procedurally, the differences between the state courts and federal courts are not so great. You consider evidence, you study the law, and you try to apply the law to the facts in particular cases. The appellate process is the same. The lawyers come, they argue and the judges debate in conferences. You then write opinions and explain why one side is more correct than the other.
Substantively, it is very different. For one thing, the Eleventh Circuit covers the federal jurisdiction, much of which is not dealt with in state courts. For another, the way in which judges look at the rules differ a little bit. For example, in Florida we have a concept that says, in a criminal case, if there is only circumstantial evidence and the circumstantial evidence is equally consistent with a finding of guilt as well as with innocence, you cannot convict because guilt is not beyond reasonable doubt. On the Eleventh Circuit, I was surprised by the law that the jury decides everything, even in the aforementioned circumstances. I still think that does not make much sense, but things like that—and the more obvious things, federal laws, bankruptcies, everything else that does not have anything to do with state law—are different. In the state court, you are also a little closer to the people, the lawyers, the litigants. You are much more aware of the ramifications of what your decisions are. The federal court seems a little bit more distant.
What about the differences between the U.S. and international institutions? Are there any cultural differences between these two?
The differences are huge. For the record, I am not someone who has spent thirty years in the international law arena. Although for many years—even before I got on the court—I have been involved in international law from an interest perspective. I was very involved with ASIL. I participated in helping develop programs to educate judges about international law—again, the more judges know, the better judging would occur. That’s how I got to know Charlie Brower and other giants in the international legal field. However, I never thought there would be a career for me there until I was asked in 2013 to consider the Iran-US State Claims Tribunal. My experience in international law before that was more intellectual, and my experience thereafter has not been huge.
First, the Tribunal is a very different legal animal than the experiences that many international lawyers would have. It is not a one-shot deal like a single arbitration. This institution has been there for almost forty years. It is a quasi-arbitration, quasi-court institution. It has its own rules, and its precedents have been established by different people throughout the years, as judges have come and gone. Second, the way in which international law is practiced on the continent is different from the principles I am familiar with. I think there is lots of wasted time in international arbitrations! But you have to take everything I say with a grain of salt, because I have not experienced two hundred or two thousand arbitrations. I have participated in several non-tribunal arbitrations, and I have seen my own tribunal. It does seem to me that there is a lot that could be considered about and copied from the U.S. system in terms of—for example, motions to dismiss. In the United States, you cannot file a complaint without a good faith belief that there is a legitimate issue. There is nothing comparable as I am aware of in international law. The arbitrators do not have the same level of control as the federal or state judges have over frivolous claims or in imposing sanctions for ethical violations. Therefore, you have to operate in a different theatre in order to achieve justice—which does happen.
You are currently the only female judge on the US-Iran Claims Tribunal. The ICJ is overwhelmingly male, and the ICC skews male as well, though slightly less so. How should we think about this disparity, and do you think it affects the outcomes at all?
This is a hard question. Throughout the years I have seen several law review articles that tried to evaluate decisions based on gender composition of the courts, but I don’t know. There is empirical evidence in a different context, though. Someone has sent me a poster which showed that women-led nations have been doing significantly better in response to the COVID-19 situation. It does seem to me that women are much more open to hearing perspectives and views. Not all of them are as ready to say that “I know it all.”
I think gender, racial, and ethnicity representation on courts and on boards is extremely important, because of its impact on inclusiveness and on the understanding that we are all part of the same world and need to have our group represented. Having said that, the more important thing for me in terms of diversity on courts is the diversity of viewpoints. Sometimes you can have diversity of gender but absolutely no diversity in viewpoints. The value of diversity on appellate courts, for example, is to have more than one viewpoint. If you are going to have multiple members who think exactly alike, why not save the money and have one judge be the appellate person? One has to examine whether there is diversity of thoughts that is going to be enhanced in a particular institution.
Here is a silly little example. I was in a court conference when I was on the Eleventh Circuit. There was a case where a man had just sold all his properties and was going to the Bahamas and had a hundred thousand dollars in his pocket, and the whole question was: why did he have so much money in his pocket? People thought that it must have come from drugs or been illegal. A judge said that a non-criminal person would have put it in the bank. I said wait a minute; my father kept much money in the house. He didn’t really trust institutions, he couldn’t speak English very well… And the other judges were all like, really? And I said yes. He kept tons of money at home somewhere, and it doesn’t mean that he was a criminal.
Can you think of a time during your career when you were made very aware of your gender or your ethnicity? Do you have any advice for young women starting a career on how to navigate those situations?
I think you have to be patient. There are so many degrees that people suffer in gender discrimination in different ways. Many times, you may not be aware that you have been discriminated against. If you don’t get a job, you cannot always tell if it has anything to do with your gender or your race or your personality. There is direct discrimination like that—you cannot have the job because you are a woman—the kind that Justice Ginsberg suffered through, for example.
There is also a lesser, more subtle kind of discrimination—a dismissiveness kind. I have noticed that a lot throughout my life. You are in a group, you express a view, which you think is very sensible, coherent, and clever, and everybody sort of nods. Two speakers later, one of the men in the room expresses exactly the same view and suddenly everybody is nodding and is like “that is really brilliant!” That’s something that I don’t think they see, and I don’t really know how to talk about it other than at some point like this. Women, no matter how brilliant they are, are not listened to in the same way or given the same acknowledgement sometimes. I think I have been very lucky in not experiencing very direct discrimination by being a woman or a minority. The groups of people that I have been part of are, for the most part, very generous sweet people, or at least I saw them that way. If there is discrimination, it happens to me in a more subtle and unaware way.
You mentioned that a lot of work that needs to be done on the rule of law is to get people on the same page and to overcome the cultural issues. Can you expand a bit more on that thought?
It is so complicated because if you want to have a message heard, you have to be the messenger whose message will be heard or can be considered. If someone is too abrasive or aggressive, you have to take that into account. Some way or another we need a whole range of activists, and I call anybody who wants to make the world better an activist. But an activist can range from someone who is willing to go out and put their lives on the line in a demonstration where injustice occurs, to somebody who sits in their judicial office and writes opinions that are fair and tries to impose a rule of law that requires a just result and treats people equally.
Trying to get people together to reach an agreement on what are the basic principles of a rule of law is difficult, because you have to communicate with people and try to bridge important cultural differences. But there have to be certain principles that, I think, can be shared. For example, independence of the judiciary—I can’t imagine a group which would disagree, at least in form, that it is imperative to have a judiciary that is going to treat people equally and not be corrupted by money or power.
But then you get bogged down when you get to other things. Eliminating domestic violence is an issue that I think everybody should be able to get behind, and yet I am aware of some cultures that hold opposite beliefs. I had a debate with a judge in another country who said that “it was not rape to rape your wife, because she was your wife.” We need to find ways of communicating to bridge gaps in views like that. There is something that cannot become acceptable just by saying that it is culturally ingrained. There is something that violates human dignity and even human personhood that you cannot excuse on the basis of cultural differences. I know others have different opinions, but maintaining one’s culture should not be at the expense of hurting someone. This is the whole concept of the golden rule: you should treat people in a way that you want to be treated, you should be left alone to be whomever you want to be. There should be a world that is supportive of letting you be whomever you want to be, and you should never hurt anybody else. In fact, I attribute the whole concept of social justice to my upbringing in Catholic school and in the convent, where those were the values that we were teaching and I was learning.
In this country and around the world, both as a result of rapidly evolving technologies and of shifting political wills, there seems to be a change in how people are understanding “fundamental human rights.” What do you think are some of the most important issues in this area, particularly in regards to women’s rights?
Gender violence. We don’t speak about it enough, we don’t explain to the general public how pervasive it is all over the world—even in our own country. I did a lecture at NYU titled “Bringing Human Rights Home? I Thought They Were Already Here.” It talked a lot about the Supreme Court cases that said police officers have the discretion as to whether to answer a domestic violence call or not. This line of cases is appalling and needs to be changed. I think the cultural views that are held in some countries, that rape is a price of war, are outrageous. I think you don’t own your spouse and cannot inflict physical or mental or any other kind of harm upon her. I think that is one of the largest problems in human rights that is very seldom addressed adequately. I am not the only one who points that out—it happens because men don’t have to deal with this issue as much. Every woman that walks through an alley at night has a fear that men who walk through the same alley do not have, of being raped, of being physically assaulted. We need to engage men in this debate to eliminate gender violence. I don’t understand the mentality that permits fragile people to be abused. Anyway, we should do something about it.
What can we do about it? How can international lawyers make an impact in women’s rights both around the world and at home?
We need to be more obnoxious about it. We need to keep talking about it. We need to follow the example of all the people who have been walking in the streets because of police brutality, peacefully. We cannot let people forget the magnitude of this problem. We should call it out whenever we see it. We need to encourage any of our sisters who are experiencing it to do something about it. We need to support shelters, we need to bring lawsuits, we need not laugh at jokes which are told at the expense of women in law firms because we are afraid that the partners are not going to make us partners. I really think if you are sincere and you stand up, you will be respected for it, assuming that you do it with as much charm as you can muster. It is a complicated process but we all have to engage in it. It would be much nicer if I could bluntly say “that it is the stupidest thing I have ever heard.” But doing it that way is not going to change them and is only going to solidify their views. I also have the tendency to sometimes not be the messenger that I would like to be, but I continue to try and be more tactful at it. But you cannot ignore it—that is what I think we have done for way too long on the whole issue of gender violence.
And let me make that crystal clear: you cannot only do one thing. I get very annoyed at people who are only interested in protecting or advancing their own, individual groups’ rights. That is not how this works. Fundamental rights and human dignity—I apologize for being preachy—is something that cuts across all the spectrums and we have to speak out on all the spectrums. You cannot say that I only care about making sure that women get the equality and power they deserve. It has to be everybody.
What are you most looking forward to? What are you hopeful about?
I hope that the world will get better incrementally. As a realist, I doubt that there will be a dramatic breakthrough, though I will certainly embrace it if there is any! I hope we will be able to understand how to communicate better, so that the values that I espouse will be understood by those who don’t seem to have the same values, or those who seem to have the same values, but somehow can’t see that those values are not being advanced. I am looking forward to continuing to enjoy my life. I got on a paddle board in the Hague on one of the canals, and I did stand up to have a picture taken! I am looking forward to the end of COVID-19. I am looking forward to going back to real work since the Tribunal has been working virtually. Just making life better for everybody.