Unfinished Business: Reflections from an Alumna
Adapted From Remarks By Patricia M. Wald ’51, Presented to the Yale Law School Association of Washington, D C Annual dinner, July 10, 2014
A New York Times article some time ago celebrated Gloria Steinem’s entry into the elite ranks of the 1980s. When asked if she had any regrets, Steinem replied, “Well, actually, it’s not so much what I would have done differently, it’s that I would have done it much faster.”With one or two exceptions, that’s about where I am and what I’d like to talk about—unfinished business, for both me and our times, that I wish had gone much faster.
I entered Yale Law School in 1948 as part of a cohort of eleven women in a class of 160 or so, largely made up of returning WWII veterans. We were told that our class had more women than usual to ensure all the spaces were filled in case some of the men didn’t get decommissioned in time. The late forties and early fifties have been labeled one of many “golden ages” of YLS. The faculty included Fleming James, Fowler Harper, Tom Emerson, Boris Bittker, Fred Rodell, Myres McDougal, J.W. Moore, Grant Gilmore, Friedrich Kessler, Harry Shulman and Wesley Sturges, among other luminaries. Of course, there was a total absence of women on the faculty, but our hearty band of eleven were so happy just to be there. We accepted as de rigeur being cast as perennial rape plaintiffs in civil procedure class and in our male colleagues’ barrister union trials. It helped to ease the pain of being bypassed by on-campus recruiters from the Wall Street law firms.
There were adjustments our male classmates had to make to our presence, too. To the consternation of my fellow would-be legal journalists, Fred Rodell had to move his writing class from Mory’s to the faculty lounge when I signed up, since Mory’s didn’t seat women at its famed tables. We also had to live off campus in an unkempt old building on Hillhouse Avenue (since demolished) next to which the New York to Montreal train ran under my window at precisely 11:45 every night for three years. We were “chaperoned” by a married couple who lived in worse quarters than we in the basement. Their surveillance, how- ever was minimal; a healthy traffic flourished on the fire escapes and five out of the eleven of us ended up marrying classmates. We were nonetheless—I’m happy to say—spared the “ladies day” that Harvard Law School held for women students or any lectures on how we were taking spaces away from men who would have to support families.
I do remember, however, a few embarrassing moments. The first came early in Professor Addison Miller’s contract class where he routinely gave out the next week’s assignments each Friday. On Monday, after the biggest football weekend of the year (which I spent studying in the library), he called on me and, because I had read all the week’s cases ahead of time, I knew all the answers. The entire class hissed and I went back and cried on the shoulders of new friend and classmate Jodie Bernstein, a much more socially seasoned graduate of the University of Wisconsin. Later on in one of the monthly YLS “socials,” the room broke out in “Pepsi Cola hits the spot” when I walked in which, though well intentioned, unnerved me. I was attending YLS on a Pepsi Cola fellowship.
Ultimately, however, our eleven not only survived but prospered in later life: one became the first tenured woman professor at Harvard Law School; Jodie became the general counsel of two major federal regulatory agencies and the head of the Consumer Protection Division at the Federal Trade Commission; a majority of the others pursued successful legal careers in private practice or academia; three of us became federal or state judges. Despite the total absence of women mentors, a “few good men” (Borie Bittker and Fred Rodell, in my case), “leaned in” to open doors for us. Indeed, two such mentors helped me secure a clerkship with Jerome Frank on the Second Circuit. Frank was way ahead of his time in gender diver- sity, having already hired two woman clerks before me. Still, in 1951, I was the only woman lawyer walking the hallowed halls of the Second Circuit Federal Courthouse in Foley Square.
After my clerkship, I went to work for Arnold & Porter (A&P), then a relatively new law firm established post-WWII by Judge Frank’s old New Deal buddies, Thurman Arnold and Abe Fortas (both of whom had taught at Yale). I came to Washington because it was the closest place to Norfolk a woman lawyer could reasonably expect to get a job. My husband and former classmate Bob Wald, recalled to service in the Korean War, was on a ship in and out of the Naval Base there. A&P then had eleven lawyers, nine partners, two associates, and one woman (me). I worked primarily on the Owen Lattimore case, a Johns Hopkins professor accused of publishing views about our China policy parallel to those of the Communist Party. He was not charged with being a Communist Party member or even a fellow traveler; just a synchronous thinker. A courageous former Republican governor of Minnesota and then district judge Luther Youngdahl dismissed the indictment on first amendment grounds only to have the government—we were in the midst of the McCarthy era—re-indict Lattimore once again on basically the same grounds and move to recuse Youngdahl from the second trial. The good judge refused to step down, issued a second even stronger first amendment dismissal of the indictment, which was upheld on appeal. It took the Supreme Court several years and membership changes to get to the same place as Youngdahl.
I spent the longest segment of my career—over twenty years—as a judge and, for a while, chief judge on the DC Circuit. I came away with a deep respect for the federal judiciary but not an indiscriminate awe of all its judges. Federal judges are not fungible—a few may fall within the icon class—but, candidly, most (myself included) did not get there on merit alone.
I left the DC Circuit in 1999 after twenty years to become the American justice on the International Criminal Tribunal for the former Yugoslavia (ICTY). Located in the Hague, the ICTY was established with strong U.S. support in 1993 to try the most serious perpetrators of war crimes, crimes against humanity, and genocide committed on the territory of the former Yugoslavia during the Balkan wars of the early 1990s. Trials at the ICTY are conducted under a combination of Anglo-American adversarial and continental civil law procedures which don’t always mesh—judges, witnesses and lawyers speak one of three languages: French, English or Serbo-Croat. I worked in a chamber with a Portuguese and Egyptian judge, neither of whom used English as their primary language, and neither of whom had participated in a criminal court proceeding in any capacity before. My two years at the ICTY were an eye opener, to put it mildly. But, overall, I came away convinced that defendants got a fair trial despite differences from our own procedures.
I have come to the conclusion after sixty years that no matter what the pattern of a lawyer’s career, she learns early on how modest is the niche in history she inhabits and how limited the sphere of events she can influence. A big world out there is constantly interconnecting and reinventing itself, and the best she can do is grab hold of a few or even a single issue or movement she thinks is headed in the right direction, and then hang on and try to make a tangible difference in advancing its course. This holds true whether you are a storefront legal services lawyer or a Supreme Court Justice. Looking back, I do not regret the times I stuck my neck out or departed from the prevailing view. My regrets are confined to the times I didn’t.
There are, of course, many other things that happened in the law during my lifetime that gave me great satisfaction. Women lawyers made substantial gains in access to powerful jobs, but we have a ways to go. We have done our part, raised our own awareness and capabilities, “leaned in.” Now it’s the profession’s turn to reorient its own institutions and processes in private practice and in academia to eradicate the lingering residue of discrimination in pay and promotions and to allow women (and men) to take time out, part time or full time, for child care in the early years of parenthood. I did it for ten years and never regretted a moment. Others should have the choice without permanently forfeiting their prospects for promotions, partnerships, or tenure. The profession, as well as they, would be the better for it.
I’ve had a good run and YLS has been a big part of my life. My late husband, to whom I owe everything good that has come my way, and my eldest daughter are YLS alumna, as are so many of my second family of law clerks, old friends, and people who helped me along the way. I don’t remember much, if any, law I learned at Yale, but I did learn—I hope—to recognize good legal writing and how to spot specious legal reasoning, whatever its source. Robert Frost wrote in one of his poems:
“Don’t join too many gangs. Join few if any. Join the United States and join the family — But not much in between, unless a college.”
In my case, it’s been a Law School.