Fred, Welcome to the Lake.

Wendy, Thank you for Hosting today’s Book Salon.

Bev & Wendy — I’m delighted to be here. — Fred

Good to be here. Fred, You’ve done groundbreaking reporting on the stories behind important late 20th century women’s rights cases. It’s easy now to forget how unequal we were when the modern drive for equality began. Do you want to start us off by talking about the culture confronted by feminist lawyers back in the late ’60s and ‘70, maybe especially in law school an the courts?

Fred welcome to FDL this afternoon.

I have not had the chance to read your book but would like to say Bless you Madame Justice Ginsberg for your actions on bringing these suits.

And the irony that she had to show the discrimination against men in order to achieve some equal rights for women.

Well, I’ll start with one example. Only in the last decade did we learn this: In late 1971 while Ruth Bader Ginsburg at Rutgers was just beginning her work her against discriminatory “gender lines in the law,” the Chief Justice of the US, Warren E. Burger, was sending word to the White House that he, the Chief Justice, would resign if the president dared to appoint a woman to his Supreme Court. President Nixon, it turns out, was only faking or, as Nixon put it, and as we now know from tapes available only in this decade, Nixon was pretending he might appoint a woman was just creating a “screen,” just sort of “playing around.” But the Chief Justice was fooled. The Chief Justice threatened to resign–delivered a letter of resignation–to keep the president from appointing a woman.

As a technical note, there is a “Reply” button in the lower right of each comment If you click the Reply, it will identify the comment you are replying to so that you and we can follow along more easily.

Hello Dakine. One of the remarkable parts of the narrative that shows in Equal is how hard Ruth Bader Ginsburg, when a professor in the early 1970s and starting to try to do work for women, needed to strive to be able to play a lead role in her important early cases, the most important of which led to landmark victories, in which she played an attorney arguing at the supremce court.

And, 1971 was the year before Congress enacted Title IX, prohibiting sex discrimination in education. So law schools were still discriminating blatantly and legally against female applicants. The struggles of women in law school at the time were difficult and important. Do you want to talk about efforts to introduce sex discrimination into the curriculum, or to open up scholarships to women?

I’m seeing nothing new when I refresh my screen, so I’ll follow one of my comments above. One of the stories I reported in Equal, for example, involved a wonderful male lawyer, Mel Wulf of the ACLU, who told me the story of how he “plucked Ruth Ginsburg from obscurity” when she was a law professor at Rutgers who had not yet argued at the Supreme Court on behalf of women. But because Justice Ginsburg let me work in her private files of letters, I was able to see how much initiative she took to become the litigator she became in the 1970s. And when I showed some of her letters to Mel Wulf, he replied “Damn, maybe I didn’t pluck her from obscurity. Maybe she plucked herself from obscurity.” — Fred

If I remember correctly, Sandra Day O’Conner had to dela with much the same thing and went into private practice because all the law firms would offer her were secretarial positions.

And this was a number of years before Joanie Caucus Redfern matriculated at Boalt Hall. :})

The story of opening scholarships and beginning courses and involving then-professor Ruth Ginsburg are all excitingly linked, beginning in 1970. Here’s a quick story:
In 1970, a series of events changed Ruth Ginsburg’s life. First, a group of Rutgers students asked Professor Ginsburg to teach a course on “women and the law.” When Ginsburg had studied law, feminism never entered her conversations with classmates or teachers. Until the last months of 1969, no law school in America offered such a course. The request that she teach one had taken an odd route.
The idea came under the Hudson River, with two law students, on the PATH train from New York City. It originated in Greenwich Village, at New York University School of Law, in early September, 1968. A first-year law student, Janice Goodman, who not long before had been organizing against discrimination in Mississippi with the Freedom Democratic Party and the Student Nonviolent Coordinating Committee (SNCC), was standing in a bookstore line next to a second-year law student, Susan Deller Ross. They got talking about scholarships, and Ross told Goodman that the law school’s most generous scholarship was closed to women. The prestigious Root-Tilden Scholarship provided tuition, room and board, dinners with famous people, paid summer internships, and a living stipend in a package worth about $10,000 dollars a year — at a time when many starting legal jobs paid little more — to 20 male students. As they talked about this blatant discrimination, Ross said: “Don’t you think we should do something about that?” Quickly they created one of the first women’s groups at any law school, the Women’s Rights Committee, and then they were in for a fine battle: to desex Root-Tilden.
As you can tell, I’m partly pasting from Equal. But the story is really exciting: young law students initiating major change.

Amazing how the memory plays tricks with someone. I would bet that Mr Wulf probably did remember it as he was doing her the favor.

Wendy — The stories of women being unable to get legal jobs are just all over the place. Ruth Bader Ginsburg could not, when she graduated from law school in the mid-1960s, get an interview for a Supreme Court clerkship. Sandra Day O’Connor, in her only law-firm interview after she graduated in 1952 near the top of her class at Stanford Law, was told that good typing might win her a job as a legal secretary — an offer she did not receive. And Ruth Weyand–a realy hero in the book for her work to fight discrimination against pregnant women–after graduating from the University of Chicago Law School in 1932, was forced to sign her work R. Weyand and prohibited from showing herself in court. Basically, women attorneys were being rebuffed by the law.

I graduated from law school in 1975, in the first generation of women to benefit from curriculum changes forced by women not all that much older than I. I took a seminar on women and the law in my third year, using a then new landmark textbook I till have on my shelves today.

Dakine — Mel Wulf became a great fan and ally of Ruth Ginsburg in the 1970s. Quickly, with the ACLU, began working on Supreme Court cases on sex discrimination, With Ginsburg in charge of sex litigation for the ACLU, Mel Wulf gladly stepped to the side (though, as legal director, he continued to sign off on all litigation). As he generously put it years later, “I knew when I was outclassed.” — Fred

I think the Lilly Ledbetter case is worth mentioning.

Also, the recently upheld class action certification of the wage and gender discrimination lawsuit,Dukes vs. WalMart-the largest suit of its kind ever filed in US history.

Seconded.

Thanks, I had no idea.

Wendy — Almost surely that landmark textbook on your shelves today was a book produced mostly by students. But what students! I’m counting on fact that the book is Sex Discrimination and the Law: Causes and Remedies. Almost no one called it by that title in the 1970s. Using the names of its authors, students called it “Babcock, Freedman, Norton, and Ross.” The authors were well known, particularly at Yale and New York University, because the book’s origins lay in the earliest courses on women and the law — courses originated at NYU in fall 1969 by Susan Ross and later taught by Eleanor Holmes Norton, whose Yale Law roommate, Barbara Babcock, had been the first instructor to teach a Women in the Law course at Yale after its initiation in spring 1970 by Yale students including Ann Freedman. The courses had evolved into a casebook two inches thick that made it possible for all law schools to offer instruction on gender issues. And as you can tell, some of those then-students or recent law grads are major leaders in the law today.

The Ledbetter case involved a woman denied the right to sue for pay discrimination because of the very unreasonably narrow way in which the Supreme Court interpreted federal law. Justice Ginsburg dissented vigorously and, if I remember correctly, told Congress to fix the problem, which it did, and a law giving Lily Ledbetter’s in the future the right she was denied was one of the first pieces of legislation singed by Obama.

The Ledbetter case came too late for Equal, but I think everyone knows the story of the decision, which I’m quite sure was by Justice Samuel Alito. Basically, as the NYT has reported, in that case the “Supreme Court did not deny that Ledbetter had suffered discrimination, but said she should have filed her claim within 180 days of ”the alleged unlawful employment practice” — the initial decision to pay her less than men performing similar work.” The fact that a decision making it so hard (for a woman in this case) to prove employment discrimination seems particularly appalling from a court that had recently shifted to a ratio of 8 men to 1 woman — a disproportion unseen in entering classes of law schools since 1971.

Thanks for being here today, Fred.

I heard Justice Ginsburg last night on the radio, I think she was at the Gridiron dinner. She was really funny.

She sounds feisty and will hopefully be on the bench for a long time. Who are the leading female lights you’d like to see join her?

Fred, Wendy,
In reality how long before we really see the real change from the Ledbetter decision? (I worked as a Fed EEO Counselor for 13 years a saw a lot of issues)

The Ledbetter case perhaps shows how resistant some justices remain to equality, or perhaps how ignorant they are of workplace realities. But attitudes were strikingly primitive decades ago, the period covered by Fred’s book. Fred, do you want to tell the stories of the pregnancy discrimination cases?

Thank you both for your feedback.

It has long been ,and still is,in the minds of many, that you have to be twice the woman to be half the man.

Reality has,imho, illustrated quite the opposite.

But then, I am biologically biased.

Wendy is exactly right about Justice Ginsburg telling Congress to fix the problem. And that is a device that worked, as Equal tells, first for her (then-professor Ginsburg) in 1978 when she played a major role urging Congress to pass the Pregnancy Discrimination Act. It partly fixed one of the SC’s worst decisions ever. In that decision, Justice Rehnquist (following a trail blazed by Justice Stewart in an earlier decision) managed to say that the Civil Rights Act of 1964 permitted discrimination against pregnant women. The pivotal move, as Equal explains beter than I can here, relied on saying that discriminating against pregnant women did not involve drawing a line between men and women. Rather, discriminating against pregnant women involved drawing a line between “pregnant women and nonpregnant persons”! Is the trick clear? So long as you have women on both sides of the line (some women who aren’t pregnant at the moment of line drawing), then the line has women on both sides and is not a line between men and women. Wild. But Ruth Ginsburg, including with a brillians op-ed article in the New York Times she co-wrote wiht Susan Deller Ross (of the textbook mentioned above on Wendy’s shelve and now teaching at Georgetown Law), led get Congress to fix the problem.

Bev,

I don’t have the practical experiences to predict how long it will take for the Ledbetter case to effect change – especially in this economy, when so many men and women alike are simply grateful if they can hold onto their jobs.

Jane, to “Who are the leading female lights you’d like to see join her?”: How about Judge Mary Schroeder of the 9th circuit? And how about Professor Judith Resnik of Yale Law School, who has been very involved with judicial issues and who has argued (the Rotary case of 1987) before the SC? I’m naming names I’ve not heard often enough yet. Both play important roles in Equal, and my impression is that they are very widely admired.

Fred, as someone who was in college during the Dworkin/MacKinnon/Wildmon reign of terror in the 1980s, I’d noticed the unholy alliance between antiporn feminists and religious right preachers. Would you want to walk up to that third rail and give it a tug?

Fred, some of the most revelatory parts of your book involved the negotiations and machinations behind the scenes at the Supreme Court, as in the pregnancy cases or the Hishon case involving discrimination within a law firm. Do you want to talk about the struggles within the Court that you’ve reported on?

For me, the most frustrating part of the Court’s reasoning in Ledbetter is that she needed to complain about the pay inequity within 90 days of her date of hire. It makes two erroneous presumptions – that she would learn of the inequity and, that she would risk lodging a complaint during her probationary period in which an employer may release an employee from employment for any reason or simply no reason at all.

I look forward to reading your book. I hope it reads as well as Caroline Kennedy and Ellen Alderson’s In Our Defense about the Bill of Rights using case histories as the basis of the text.

To Jane – I’m now picking up on your comment “I heard Justice Ginsburg last night on the radio, I think she was at the Gridiron dinner. She was really funny.” Back on the 13th of February, I was at a conference (see some info at ) planned at Rutgers Law in Newark, where she had been a teacher in the 1960s and early 1970s and where, in many ways, she became who she is (as her biographer Wendy Webster Williams says). The date of the long-planned conference, at which she was planning to give the mid-day keynote, came very soon after her diagnosis and need for cancer surgery, and everyone believed (with great sadness) that she was in the hospital in NYC. Then she phoned the conference, reached the Rutgers dean, and sent word to us all that in fact she was heading home, was at a nearby airport waiting for a plane, and that she was trying to convince the US Marshals chargd with taking care of her that they should drive her to the conference to see her many friends–gathered at Rutgers to honor her. Her stamina and energy are truly rare and admirable

Wendy — The Hishon case involving discrimination within a law firm brought me one of the biggest surprises I hit in Equal. I think nobody ran into this appalling/revelatory story until I dug into part of the Blackmun papers — his files from the SC — that got opened in 2004 and are vast. The basic story of Hishon seemed simple before I hit those files.
Basically, a powerful law firm had argued as follows: its partnership decisions could legally discriminate against women. No kidding! And it argued not just that Title VII did not cover partnerships, but further that the First Amendment of the Constitution granted law partners the right to freedom of association and expression that would be violated if they were forbidden to apply whatever selection criteria they chose — even if this meant engaging in sex discrimination or, incidental to this case, race discrimination.

In the Hishon case, decided 1984, the SC ruled what seemed obvious: law fimrs could not discriminate against women.

Speaking of primitive, its one thing when its mangement-especially in the patriarchal South that spawned the Ledbetter case-but what about the effrontery from a colleague [of sorts] in Congress?

Where’s the professionalism there?Or,just common damn decency?The arrogance is endemic,imho.

To wit:

February 23, 2009

Sen. Jim Bunning (R-Ky.) apologized today for a remark he made over the weekend regarding Supreme Court Justice Ruth Bader Ginsburg’s health.

At a Lincoln Day Dinner in Elizabethtown, Kentucky, Bunning predicted that Ginsburg, who has pancreatic cancer, had only nine months left to live, despite recent surgery to remove a tumor. Ginsburg returned to the Supreme Court today for the start of the new session.

“I apologize if my comments offended Justice Ginsberg,” Bunning stated today in a press release, which misspelled her name. “That certainly was not my intent. It is great to see her back at the Supreme Court today and I hope she recovers quickly. My thoughts and prayers are with her and her family.”_______________________________________________________

Personally, I LUV the smell of petards hoisted in the morning,don’t you?

Wendy, 2 nits to pick. You wrote re: Meritor Savings Bank v. Vinson that the consequence of the case was “to expand Title VII’s definition of sexual harassment.” I believe you meant “to expand Title VII’s definition of sex discrimination,” as there was no such thing as sexual harassment as a matter of law before that case. Also, MacKinnon spells her first name “Catharine.”

I’d also like to suggest for the 2nd edition of this terrific book some discussion of the issue of contraceptive equity: another Title VII claim that argues the failure of employer-provided insurance to cover prescription contraception on the same terms as other prescription medications is sex discrimination in employment. A number of cases have been brought around the country with decidedly mixed results. The 8th Circuit ruled that such plans were not discriminatory in Standridge v. Union Pacific while precedent in the 9th Circuit (Erickson v. Bartell Drug Co) suggests otherwise.

Fred or Wendy either one may answer this, What areas do you see as most likely to be fodder for future discrimination law suits?

Do you see any colleges being sued under Title IX because their football teams chew up so many of the sports slots?

Do you think we’ll see the number of women on the court ever out number men?

Whoops, that msg on Hishon case got away too soon. What nobody (I think) knew was that the chief justice, Warren E. Burger, tried to steal the opinion. There’s no other way to say it. He assigned himself the opiniong and made an amazing, last-ditch effort to allow partnership decisions could legally discriminate against women.

At the risk of digressing — the wrongheaded dangerousness of the feminist anti-porn movement is a subject for another book (some have been written) and another conversation — but I do want to add that crusades against allegedly offensive, abusive or harrassing speech that behind much censorship on so many college campuses are rooted partly in the anti-porn movement.

Fred, I haven’t read the book but it sounds wonderful. Have you gotten any reactions from any of the people you talk about? How about from women who are still fighting to reshape things (but perhaps don’t want their names used, because of the pressures opposing them)?

To Nora and “the issue of contraceptive equity”: One of the stories I wish I had worked out more fully also in Equal is the story of how the early contraceptive battles, which began to take legal shape in the late 1950s, took a track quite different from most later efforts for women’s rights. Reproductive freedom did not make a Fourteenth Amendment argument about equality, as you know. It wound up heading toward a right to privacy. The origins of that right get handled well by David Garrow in his book, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. But read with an arched eye, some of those origins sound pretty amusing. One of my favorites involves one of the architects of that right to privacy (rather than equality) quoted in Garrow who said, of those days when he helped invite the right to privacy” “I was then a single man, living in the Village, and sexually active if not promiscuous . . . I had a personal commitment to birth control.” An argument about equality (maybe in addition to liberty and privacy) would have been interesting, but it seems to have gone mostly unmade.

Drive-by for me because I have dinner prep going on. (I’m retired, it’s just for me, and I took up cooking as a hobby about a year ago, so draw no conclusions about female roles.)

40 years ago, I was about to graduate from college. It took me another 4 years to land on Wall St. So I was a female pioneer and have the arrows in my back to prove it.

I was in an area-economic research-where sexual harrassment was not an issue (and no one would try to do that to me anyhow), like is was (is?) on the trading floor. My gripe is that I was paid less & didn’t get the promotions I deserved. At one particular moment (1986), when my boss was retiring and Chief Economist was up for grabs, I worked late and went over his notes (left in one of the piles on his desk; I have copies to this day) on every candidate after he left for the evening. I gradually worked my way up the list vs. external candidates, but never made it. I found only one minor comment (my boss wrote copious notes) that hinted at my being lower ranked because I am female; nothing that would have stood up in court. This experience taught me that the inability to take women seriously in professional settings is ingrained, subconscious. Quite a wake-up call.

I switched firms, a mistake, as the male hired for the job flunked out after 2 years.

My unsolicited opinion would be discrimination on access to justice be it “tort reform” “mandatory arbitration” for consumer issues, effective assistance of counsel and mandatory sentencing guidelines for criminal matters.
When visiting family in Van Nuys, CA, we always made a point to get a hot dog at LAw Dogs on Sherman Way. Every Wednesday evening, you could get free legal advice from attorneys or judges. Most of the advice was of the landlord tenent or Orders of support – real, necessary public service. Now that the lawyerin’ biz has taken a hit maybe more attorneys will create similar legal services for the working folks.

I dn’t know what discrimination lawsuits we’re most likely to see in the near future, but I can tell you what I’d like to see in an ideal world that isn’t close to existing – equality challenges to denials of reproductive choice to women.

As for the likelihood of seeing women outnumbering men on the Court, I’m not holding my breath. I think (and I should double check,) that women constitute only about 25% of judges, state and federal (Fred probably knows better than I).

But this leads me to a question for Fred: You conclude Equality by suggesting that in order to achieve equality we need more women on the bench and maybe in the White House. How do we press for female leaders while avoiding the pitfalls of identity politics, which we saw pretty clearly in the ‘08 presidential race?

To Peterr on “any reactions from any of the people you talk about”: This book is really open stories based on generosity of many people. Many people let me copy or borrow or transcribe files from basements or garages, and they spent hours talking. Nobody (I think) asked to be anonymous. The greatest early generosity came when Justice Ginsburg gave me the chance to work in unsorted files she had in a ground-floor storage room of the Supreme Court. It was a pretty weird reporting situation, in a room ine paces long and five paces wide, with dim fluorescent lights–sort of like an abandoned handball court or mini-basketball court. Each morning for many days, I worked in that room’s left corner, all alone, pulling papers from a mustard-colored cabinet, full of letters and briefs that Ginsburg had saved from her days as an attorney trying to improve the law for women. And many other attorneys were similarly generous. And, now that I think of it, at conferences I’ve been seeing many of the major lawyers in Equal, to whom I’m indebted as is the law. I mentioned the 2/13/09 conference at Rutgers. And a very big conference 4/22/09 at Georgetown law will bring together many people involved in shaping the Violence Against Women Act, proposed by Joseph Biden (Part 5 of the book), and the web address for that conference is . I’ll be on one panel, along with many people who are key in Equal.

I hadn’t pulled those two threads together in my own mind, Fred, but I think you’re exactly right that the choice between privacy v. equality as a tactic (and, perhaps, as intellectual commitment?) bears directly on the contraceptive equity litigation, which has been argued as a straightforward matter of disparate treatment sex discrimination. There was some internal debate on the advisability of making a disparate impact argument instead or in addition to the disparate treatment claim and none of the cases, to my knowledge, have taken that approach.

I took a course from MacKinnon at the University of Minnesota in 1984 (I was in a Philosophy Ph.D. program at the time) on Gender and the Constitution and she argued quite persuasively that reproductive rights should have been argued on equality and equal protection grounds rather than the “penumbra” of privacy.

Federal courts were beginning to recognize sexual harassment before the Vinson case (see Barnes v Costle.) But MacKinnon’s work on harassment was groundbreaking and often cited.

(And my apologies to her for misspelling her name; I know how annoying that is.)

To Wendy on “How do we press for female leaders while avoiding the pitfalls of identity politics, which we saw pretty clearly in the ‘08 presidential race?”: I guess I keep thinking in terms of a fact I mentioned before: with 8 men to 1 woman on the SC, we’re looking at a ratio of men to women unseen in entering classes of law schools since 1971. An entire generation of brilliant women await appointments. Some helpful numbers, for ex., are these: In American law schools, women are 47% of students and 35% of faculty. Membership of women in the American Bar Association has reached 30%. Women now hold 23% of judgeships in federal courts. Only the Supreme Court of the United States remains overwhelmingly male, atop a system of top-down rulings. I think so many women judges and attorneys are ready for appointing that they should be appointed–and then we’ll see what change comes. It would be nice if women are not held back because they’ve been supportive of women’s issues. This makes me want to get to a story about the ERA and Justice Powell that I tell in Equal–how he used the existence of a not-passed ERA in 1972 to oppose a change in Supreme Court rulings that would have diminished the SC’s role in retarding the rights of women. Since I said that badly, here’s another shot: Although SC rulings were overdue for change that the ERA would have accomplished, Powell used the fact that the ERA existed (it had overwhelmingly passed Congress and had passed in a majority of states) to retard change–in a very major case, Frontiero, argued by Justice Ginsburg. I got this story from SC documents, now open in Library of Congress.

I always admired your posts ,long before I began posting here,myself.

Narcissism,no doubt on my part.

You’re post is like Narcissus gazing into the pool for me.

To eCAHNomics — This is partly to “took me another 4 years to land on Wall St. So I was a female pioneer and have the arrows in my back to prove it.” One of the recurring experiences I had, reporting Equal, came as I learned how many people had pulled out those arrows and, in some cases, never told anyone they had been hit. I admire that, surely, and it surely led to reporting surprises. Untold I think until now, in Equal, is the story of how the case that Ruth Bader Ginsburg viewed as her perfect case (it’s called Wiesenfeld) was pulled from a split court to unanimity. It was pulled by a young law clerk from the law school Berkeley, whose name is Marsha Berzon. Selected in spring 1974 by the law school at Berkeley, to whom Brennan had delegated selecting his clerk for the coming year, Marsha Berzon was slated to become Brennan’s clerk. He rejected her — turned her back — because she was a woman. Later, she told me when I interviewed her , she heard that Brennan had done this at least once before–turned back a woman designated to be his clerk. But this time, in spring 1974, for Marsha Berzon, Berkeley pushed back. Brennan apparently caved. She became his clerk. Once she arrived inside his chambers, he came to trust her. He let her take the leadin crucial ways in his chambers when Ruth Bader Ginsburg’s “perfect” case came to him, the case of Paula and Stephen and Jason Wiesenfeld. Marsha Berzon’s extra labor apparently turned a badly split Court to a unanimous Court –unanimity that always astonished Ruth Bader Ginsburg. And that young clerk is now Judge Marsha Berzon of the 9th Circuit Court of Appeals. But I think it’s fair to say that, had the great liberal lion Justice Brennan had his way, two losses would have followed:
a) Judge Marsha Berzon would have lost a pivotal clerkship that surely helped light the way to her current judgeship.
b) Justice Ruth Bader Ginsburg would have lost unanimity in what she had viewed as her perfect case and in what was one of her most important cases for advancing the rights [law?] of women in her string of oral arguments before the Supreme Court.

Fred, speaking of female judges, (and considering the sexism they confronted) one story in Equal that had me sputtering was the story of one really obnoxious lawyer’s efforts to remove the late judge Constance Baker Motley from a discrimination case involving a major New York law firm. It’s a tale worth retelling, if you feel like it.

Good for Boalt that they were willing to push back against Brennan at that time.

Did he ever apologize to Judge Berzon for his initial rejection? Explain it at all?

I’m finishing the story above about Marsha Berzon’s work as a clerk once accepted by Justice Brennan. I ran into a hint of the story in Justice Ginsburg’s collection of letters from the 1970s. When I asked Marsha Berzon to help me understand what really happened, she said: “Who told you that? Who knows it?” She seemed to have kept the story involving those arrows (as eCAHNomics put it) away from public information. But it’s a very revealing story of the way that even a liberal justice such as Brennan was holding back the future of women in law.

Wendy — thanks so much for the great intro for this book today. And Fred, thanks for a fantastic book. As one of those women lawyers who aspired to follow in the footsteps of the greats who came before me, I really appreciate all the effort you put into this, documenting so many of the milestones and the commitment to the rule of law and justice that these women served.

Truly — bravo.

Wendy — Sitting in the chambers of Judge Constance Baker Motley and going over documents with her in that case (Blank v. Sullivan & Cromwell)was fascinating. First, the story was of a suit alleging a law firm was discriminating against hiring women. When her name (only woman judge among 27 judges on U.S. District Court for the Southern District of New York) got drawn from a drum to hear the case, the firm’s lawyer must have been shocked. He wound up trying to get her disqualified because, as he put it in one memo on the route toward the eventual battle, he believed she “identified with women lawyers who suffered discrimination in employment.” He also said this: “I believe you have a mind set that may tend, without your being aware of it, to influence your judgment.” It’s an amazing story. Basically, as I read it, that male lawyer was arguing that a woman judge could not a “a mind set” that would cloud her judgment in a case involving women lawyers and discrimination. The wonderful attorney Harriet Rabb fired back, on Motley’s side, with the reply that, if the male attorney’s argument held up, “there would not be any judge in this court who could hear this case. Indeed all judges would be disabled because each would appear other than open-minded or disinterested because each judge in the District is an attorney, of a sex . . . .” Judge Motley stayed on the case.

digg is open.

True and you could still be employed by that firm in this economy.
My dad never made partner at his firm new partners borrow to buy old partners out.
Thing is the firm was getting smaller and less profitable every year since the 70’s.
My Dad got lucky on that one.
I used to bring up that point when he would get a bit down about not making partner which wasn’t often.
I wonder how many minorities and women in the near top jobs are doing better than the guys who actually own controlling sections of stock in the companies.
Not in actual dollars but percent of losses? As income goes up so does expenses and for gamblers so does losses. With income and assets down expense should go down but not loans that were based on the old income.
I never got offered $30 to 1 leverage on my credit, so if anything the rich whit male is getting hit worse than us.

Dugg

I don’t see another question, so I’ll stay with Wendy’s and that male lawyer’s battle to get Judge Constance Motley disqualified. He also did something that rang her bells, but I only understood when she explained it to me. He started attacking the opposing side (the young women claiming law firms discriminated against women)by saying they had engaged in what he called a “barratrous and champertous plan.” I could decode those words with legal dictionaries: basically, those words were meant to combat, in law, “ambulance-chasing” by lawyers–by opportunists who profited from others’ pain. But Judge Motley told me what she heard. She had been an attorney-ally of Thurgood Marshall in the great civil rights cases that culminated in and then followed Brown v. Board of Education, and one of the toughest sets of challenges she and the NAACP had to overcome was an effort to label her & their good lawyering as akin to a “barratrous and champertous plan.” It’s a complicated story, but basically this male lawyer was trying an old ploy, which the NAACP’s legal team barely fought off, to label public-interest law as somehow outside the legal canons of ethics. She was, when we spoke, furious as she recalled these tactics.

“How to stack the deck against your client in three easy lessons”

To Dakine — Women, both judging and arguing, had to go against lots of stacked decks. Again, what Equal tries to do(at least when I’m doing what I hope) is dig out untold narratives. One example of a sort of stacked deck that was unknowable until 2004 (at the release of the papers of Justice Blackmun ) was the depth of the difficulty the court had listening to a woman advocate making the case that sex discrimination was unconstitutional discrimination. One of the fun/shocking pleasures of reading these now-open Blackmun papers, is that Blackmun almost always made notes and gave grades (as if he were some odd cross between a law professor and a judge on American idol), to attorneys who argued before the Supreme Court. On Ruth Bader Ginsburg’s first oral argument, he graded Ruth Bader Ginsburg only a C+–worse than the two males who argued. And then Blackmun described her in three words. His first two words describing her began as if he might give a higher grade than C+, and those words were: VERY PRECISE. Now, “very precise” sounds like the start, to me, of at least a B+. But he continued VERY PRECISE FEMALE, and gave her a C+. (And based on notes on confernces–extensive for the men who argued (albeit at greater length) but very brief for her–he apparently barely listened to her making a pivotal argument of the time, and of today: that SEX DISCRIMINATION DESERVES THE COURT’S STRICT SCRUTINY, not just casual scrutiny, which can be casual acceptance.

I think Judge Motley was the first African American woman to serve on the federal courts – she had to have had a profound, experiential understanding of discrimination under law, in some of its grossest forms. Today sex discrimination is often more subtle and maybe less amenable to formal legal remedies. Or is it? What’s your sense Fred?

And coincidentally, there was a brief interview with Sondra Day O’Connor in the NYT magazine today, in which she refers to her interest in fairness for women but declines to call herself a feminist. Does her self-identification as “not a feminist” matter?

If I may, as a relative newcomer here, I would like to express my sincerest appreciation for the opportunity to participate with some of the most thoughtful and civil voices on the net.

And to FDL for providing the forum and the extraordinary guests,to whom myself,and no doubt others,would never have such priviliged access .

As we come to the end of this interesting Book Salon,

Fred, Thank you for stopping by the Lake and spending
the afternoon discussing your new book.

Wendy, Thank you very much for Hosting this Book Salon.

Everyone, if you haven’t bought Fred’s book yet, here is a link.

Link

Thanks all.

Thank you Fred and Wendy for an interesting discussion.

And once again thanks to Bev for finding such great books for us to learn about.

[damn that reading list is getting humongous]

To Wendy’s “sex discrimination is often more subtle and maybe less amenable to formal legal remedies,” what fascinated me, as I reported the late section of Equal, was seeing Chief Justice Rehnquist reduce the ways to address sex discrimination. Rushing now (I am), what amazed me was an in-your-face (I think) move of his, ruling against the constitutionality of the Violence Against Women Act in 2000, when he said that the Violence Against Women Act was like the two great (I think) Civil Rights Acts of the 1870s: the Civil Rights Act of 1871, the so-called Ku Klux Klan Act, enacted by Congress to end the widespread slaughter and intimidation of black citizens by white gangs across wide regions of the South; and the Civil Rights Act of 1875, enacted to overcome white resistance to granting blacks equal access to accommodation such as inns and to transportation such as railroads. But what Rehnquist was saying was, in effect: the SC was able to overrule those acts, and yours is like them–you lose.

Bev & Wendy & all — I’m honored to have been included. — Fred

Thanks Fred and Wendy, a great discussion

and thanks Bev!

Seconded