“Equal: Women Reshape American Law”

IMG_0287Until the late 1960’s law schools were almost exclusively a bastion of white, male students.  By the late 1960’s, law schools saw themselves with empty seats when, during the Vietnam War, male students lost their selective service deferments, were drafted, and unable to enroll in or finish their legal studies. Unwilling to accept the lost enrollment dollars, In Equal: Women Reshape American Law, Fred Strebeigh opines that the very schools that had rigidly limited enrollment to white males in the past, began to enroll women and people of color to fill those empty seats.[1]

Strebeigh tells the story of how a rapidly increasing cadre of women, on completing their legal educations, found that they were not welcome  in the profession for which they had prepared.  Law firms, law schools and the courts did not want to hire them, regardless of the strength of their academic credentials.  He describes the willingness of these talented women to challenge the institutions and laws that perpetuated discrimination against them.  But the strength of Equal is based, primarily, on the story of the dedication of women, and often their male allies, to search out cases to litigate that would, systematically, rely on the language of the U.S. Constitutional to break down the barriers to full equality between the sexes.

By the beginning of the twenty-first century, women made up 47% of law students, 35 % of the law faculty, 30 % membership in the American Bar Association, 23 % of federal judgeships. But it is not just the number of students, it is also the impact of the litigation by this new generation of lawyers that is the core of this book.  Strebeigh tells story after story of the people behind the most significant cases of the 1970’s and 1980’s.  He describes the impact of sex discrimination on individual men and women. He explores the inability of women to obtain scholarships to pursue their legal studies, the inability of an Army nurse to continue her military career after becoming pregnant, giving birth and giving her child up for adoption.  He describes discrimination against males in the receipt-or inability to receive–government benefits available to women.  He describes violence perpetrated against women, including rape and other sexual harassment, in circumstances in which employers, universities or the courts refused to hold their male abusers accountable.

Last month I wrote about the struggles endured by women leaders who led the fight for the Nineteenth Amendment, ie. the right to vote.  Their struggle made possible the successes of the more recent past.  Strebeigh repeatedly returns to the stories of the 19th century to explain the history that had to be overcome for the equality of the sexes to come to fruition.

A special hero in Strebeigh’s book is U.S. Supreme Court Justice Ruth Bader Ginsberg.  After graduating from Columbia Law School [2] she served on the faculty of Rutgers Law School from 1972 until 1980 and the faculty of Columbia Law School.  During her academic career she became deeply involved in researching and litigating on behalf of victim’s of sex discrimination, both male and female.  Highlights of her career as an advocate are Supreme Court cases that extended the protections available to women, and eliminating barriers to equal treatment on the basis of sex.  She researched and argued before the Supreme Court: Reed v. Reed, [3] Frontiero v. Richardson, [4] Weiberger v. Wiesenfeld [5] and Duren v. Missouri. [6]  

Equal begins in 1967-68, and continues into the beginning of the 21st century.   Strebeigh tells is the story of the impact of women at a national level.  He describes successes as well as failures in the period of his studies.  It is, in some fundamental ways, the story of my generation of women attorneys.  The story of Meg’s generation, what I call the Title IX generation, remains to unfold.
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[1] Enrollment by African-Americans and other people of color also slowly began to increase.  However the opportunities and challenges of these groups are covered in other books and only briefly mentioned in Equal. 

[2]  Justice Ginsberg began her legal education at Harvard Law School.  In 1960 she graduated from Columbia Law School where she tied for first place in her class. She served on the law reviews of both schools.  Despite being denied a position as Law Clerk to Supreme Court Justice Felix Frankfurter due to her sex, she excelled in every future aspect of her career.  While at Rutgers she became deeply involved in the women’s rights movement.  She co-founded ACLU’s Women’s Rights Project, and served as ACLU’s General Counsel before being first appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1980 and thereafter moving to the Supreme Court in 1993.

[3]  In 1971 the Supreme Court held in Reed v. Reed that Idaho’s law that case mandatory preference to males in selecting administrators for probate estates was in violation of the Equal Protection Clause of the Fourth Amendment. 

[4]  In 1973  the Supreme Court held in Frontiero v. Richardson that  the Fifth Amendment’s Due Process Clause prohibited discrimination between men and women in distributing military benefits to dependent family members.

[5]  In 1975 the Supreme Court held in Weinberger v. Wiesenfeld that gender based distinctions under 42 U.S.C. 402(g) gender-based distinction in the distribution of special child care benefits violated the right to equal protection under the Due Process Clause of the Fifth Amendment.

[6]  In 1979 the Supreme Court held in Duren v. Missouri that Missouri’s statute making jury service optional for women violated a criminal defendant’s right to a fair cross-section requirement of the Sixth Amendment.

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The opinions on this blog do not represent the opinions of our family, our friends or our employers.

Justice In Our Courts: A Fair And Impartial Judiciary

The U.S. Constitution provides for a separation of executive, legislative and judicial powers. [1]  The role of the judiciary is unique among the branches of government.  Our courts are accountable to the United States Constitution, federal and state laws, and the constitutions of the individual States.  Most citizens are in agreement that they want judges to be accountable to the law and not to special interest groups.

In 1940, in response to the increased role of politics in the selection of judges, the voters of Missouri amended the Missouri Constitution when they enacted the “Nonpartisan Selection of Judges Court Plan”.  Identified as the Missouri Plan, it has, since that time, served as a model for 34 other states.  Now that plan is challenged in Missouri by a proposed constitutional amendment that would significantly expand the role of politics in the selection of state appellate and supreme court judges.

The current “Missouri Plan” provides for the selection of state supreme court and appellate judges utilizing a non-partisan commission whose role is to review and evaluate candidates for judicial vacancies and to present the Governor with a panel of 3 candidates for a judicial position, from which the governor selects the successful candidate.  The 7 member commission is chaired by a Missouri Supreme Court judge [2], and includes 3 attorneys, elected by Missouri attorneys, and three lay members appointed by the Governor.  The lay members and lawyers serve staggered 6 year terms.  The governor selects the lay members. The commission picks 3 candidates for the judicial position.  The governor selects the judge from the 3 candidates.  A sitting governor is able, in a single term, to select only 2 lay members, giving the governor control over fewer than 1/3 of the members of the commission.  Over a period of two terms the governor has control of three appointments, still a minority of the commission.  In recent years the selection process has been modified to provide increased transparency in the selection process by providing the public significantly more information about the candidates.

On the November 6, the voters will be asked to consider Proposition 3, a proposed amendment to Missouri’s Constitution that seeks to expand the role of politics in the selection process.  Inherent in the proposed changes to Missouri’s Non-Partisan Court Plan is increased politicalization of the judiciary. The proposed constitutional amendment would remove the Supreme Court Judge from the commission and give the governor the authority to appoint 4 members of the commission, 2 immediately on taking office and two more 2 years after taking office, thus giving the governor the ability to appoint in excess of 50% of the commission in his/her first term.

There is currently no organized support for this Constitituonal amendment.  Neither Governor Nixon nor his opponent supports the amendment.  What, then, is the problem?  Elected officials who support the Constitutional amendment in Missouri also support the direct election of appellate judges.  Why you say?  Purportedly the proponents are seeking increased accountability of judges.  But to whom?

The Missouri Plan was implemented in response to efforts by political bosses to control the selection of judges, particularly at the appellate levels.  The perception was that these political bosses wanted judges who were loyal to them and not to the law.  This risk can be the same whether the perceived loss of independence results from the dominance of the governor over the selection process or the need of judicial candidates to face elections, particularly in large metropolitan areas where the cost of an election can be significant, thus requiring them to solicit the large sums of money necessary for political campaigns.

The role of our courts is to fairly and impartially enforce the laws and to do so without bias. Experience in states including Texas and Illinois suggests that the  election of appellate judges significantly changes the dynamic of the court system. The challenge associated with requiring judges to solicit significant campaign contributions and to campaign for office includes, almost necessarily, an expectation by donors that judges will have some accountability to them. How can this be a benefit to the fairness of the judicial process?  It can’t.

When you are asked to support changes to the processes by which judges are selected, ask yourself whether you would want to appear before judges who are responsible to the law, or who are indebted to one or more special interest groups.  Hopefully, the answer is quite clear.  Citizens should reasonably expect that judges are fair and impartial, responsible to uphold the Constitution and be governed by it and by other duly enacted federal and state laws, they protect individual rights and that they provide access to the judicial system.  There is no place in these responsibilities for judges who are–or appear to be–subject to the desires of any special interest.[3]

John Johnston, Past President of the Missouri Bar and strong advocate for the retention of the non-partisan court plan summed it up:  “When we select judges, we want people who will be good umpires, not players.  We want people who will set aside any feelings they have about who should or who should not win.  We want people who will apply the rules that we made as a people through our constitution, or that our elected representatives made through laws, or that our governors made through executive policies.  when any of these rules conflict, we want judges who will say that the people win, and that our most direct voice, the constitution, wins.”

Perhaps the Federalist Papers say it the best:  “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” And further: “The complete independence of the courts of justice is clearly essential in a limited Constitution…” [4][5].

Isn’t that what we all want?  I think so.

[1]  U.S. Constitution, Articles I, II and III.

[2]  By tradition, the Chief Justice sits as the chair of the appellate commission.

[3]  Experience suggests that it is in statewide and major metropolitan elections that we face the greatest challenges associated with expensive elections and the associated concerns about contributors attempting to influence judges.

[4] See our post on The Federalist Papers and the Judiciary’s Role in Government, dated Dec. 29, 2011.

[5] See our post on U.S. Role in World Affairs, Pt. 2: Courts as a Model and Trusted Protector of the Rule of Law, dated Nov. 8, 2011.

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The opinions expressed in this blog are not the opinions of our employers, our families or our friends.

Election politics–Respecting our own values

It is July, Independence Day is just around the corner.  We are in the thick of a Presidential election campaign. Stories concerning President Barack Obama and his Republican opponent, Mitt Romney, fill our newspapers, our television and radio stations and the internet news.

                                                                                                               NYDailyNews.com Samad/Getty

                                                                                                Washington Post  Charles Dharapak-AP

There are weeks you would swear that the insults and barbs are directed at an enemy nation, not at an individuals who are lead and/or seek to lead, this great nation.  Listening to the venom in the political debate, you would swear that neither candidate is fit to be President.  In fact, both of these men are good men.  They are flawed, as are we all.  Their values, and the values of their parties, may be different than yours and mine.  But they are not evil, incompetent or stupid.

Francis John McConnell, a bishop in the Methodist Church and president of DePauw University from 1909-1912, said it well:

“We need a type of patriotism that recognizes the virtues of those who are opposed to us”.

We are so fortunate to live in a country that values its citizens.  Our government is a model for the world.  We are so fortunate to live in a nation with a United States Constitution that speaks to fundamental rights such as freedom, democracy, liberty and the rule of law.  Wouldn’t our founding fathers weep at the level of venom directed at our government leaders; not only our Presidential candidates, but all levels of elected office (and this isn’t the day to talk about the election of judges.)

As fortunate as we are, and have been, our nation has serious problems, and we aren’t going to solve them by demeaning our government leaders through campaigns of hate.  And can’t we stop throwing insulting comments at family and friends who vote for “the other guy”.  Can’t we recognize their virtues?

Isn’t this a time to direct our attention to finding solutions to serious national problems: the economy, immigration policy, strengthening our position as a leader within the community of nations.  Can’t we look for answers together.  Can’t we set aside our anger long enough to find common ground and to focus on solving problems together rather than focusing on new ways to embarrass and harangue those with whom we disagree.  Can’t we make our leaders and each other look good, not bad?

Support the candidate of your choice.  Raise money, go door to door, help the processes of democracy work well.  But at the end of the day, can’t we just find each other’s virtues?

In this opinion we do not intend to speak for our employers, our spouses, our families or our friends.  

Our Founding Fathers

On July 4, 11776, our founders declared in the Declaration of Independence: “we hold theses Truths to be self-evident, that all Men are created equal and that they are endowed by their Creator with certain unalienable Rights, that among them are Life, Liberty,pursuits Pursuit of Happiness.”  With these words, they began the process of shaping a government that obtains its powers from “the Consent of the Governed.” The Constitution continues in a similar fashion, professing the desire of the people of the United States to “establish Justice”, and to “secure the Blessings of Liberty” to ourselves and our posterity.”  These are powerful words, and the goals expressed in them have shaped this nation.  What kinds of men authored these documents?

When I read Madeleine Albright’s book, The Mighty and the Almighty, her brief description of the philosophical and religious perspectives of our first Presidents intrigued me.  Albright’s own belief in religious tolerance may certainly impact her vision of our founding fathers.  Particularly pertinent is her belief that religion should not be  a source of conflict and hate.  It is reasonable that she focuses on similar attributes in our founding fathers.

What were the beliefs of the men who shaped these documents?  What is it that inspired George Washington and others to create our Constitutional form of government?  How is that these men created a government based on concepts of liberty, freedom and democracy?  What caused them to enact a Constitution that gave so much power and dignity to the common man?  Albright believes they considered themselves to be like the Israelites, guided by God through the wilderness, presumably to the promised land, the a United States.

Almost certainly, the vast majority of early colonial leaders were closely associated with clearly defined religious denominations: Primarily Congregationalists, Puritans, and Anglicans. In contrast are the less clear cut beliefs of a small group of pivotal individuals who took center stage as authors of the Bill of Rights, and the Constitution.  Their letters and speeches suggest they were deep thinkers, wise and thoughtful, “primarily political–not spiritual theorists” who focused  on “civil concepts: democracy, liberty, freedom of the press, freedom of religion, jury trial, all of the fundamental rights we hold dear.”

Consistent with their own political and philosophical beliefs, these men were highly respectful of the wide scope of religious and philosophical beliefs found among the citizenry.  What do we know about their beliefs?  Their religious beliefs appear not to have been stagnant.  They grew and changed as they faced the challenges of building a nation.  Historians describe them as very religious, not very religious, atheists or Deists, depending at least in part on the perspective of the various historians who write about the, while relying on whatever quotes fits.  Without question, they seem to have believed that this new nation should welcome people of different beliefs.

Our first President, George Washington, often acknowledged the importance of a supreme being, while advocating “scrupulous support for religious tolerance” including “Mohametans, Jews or Christians of any sect, or Atheists”.  In Washington’s 1790 letter to the Hebrew congregation of Newport, R.I., he wrote: “The government of the United States gives to bigotry no sanction, to persecution no assistance.”  He made frequent references to a deity, nonetheless, ministers of his time, including the Rev. Bird Wilson, Episcopalian, and Rev. James Abercrombie, Rector of Washington’s church, described him as a “Deist”.  Certainly as Secretary Albright indicates, he was committed to the right of every citizen to worship “according to the dictates of his own conscience”, as he did himself.

Our second President, John Adams, is described by Secretary Albright as a Unitarian who considered liberty “a gift from God” and democracy “a creation of man”.  She describes him as having had little use for the concept of the Trinity.  A prolific writer in the area of philosophical and religious issues, his various writings provide little clarity as to his personal beliefs. Like Jefferson, his religious and philosophical views were intertwined.  His primary concerns appear to have been civil rather than religious.  As a statesman he was dedicated to religious tolerance. Treatises about him quote him as inconsistently stating both that “Our Constitution was made only for a moral and religious people” and in contrast that “This would be the best of all possible worlds, if there were no religion in it.”  I wonder whether this statement was in response to world events of his time.  He expressed concern that people “are often for injustice and inhumanity against the minority”, as demonstrated by “every page of the history of the whole world.” Almost certainly a reference to the French Revolution which occurred almost simultaneously with our own, but with a level of brutality we never experienced.

Albright describes Thomas Jefferson, our third President, as a student of science and ethics.  The controversial nature of his beliefs is evidenced by his opponents’ attacks against him, labeling him an atheist. His own words make this suggestion highly suspect. In his letter to Benjamin Rush, in 1800, he acknowledges God, stating: “I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.”  But he certainly ascribes to a very personal system of beliefs: “I never submitted the whole system of my opinions to the creed of any part of men whatever in religion, in philosophy, in politics, or in anything else where I was capable of thinking for myself.  Such an addiction is the last degradation of a free and moral agent.”  He had little good to say about Christian clergy, describing them as the “greatest obstacles to the advancement of the real doctrines of Jesus”.  Ouch, my dad would loudly protest against any suggestion that his life’s work is an obstacle to the teachings of Jesus!!

Jefferson is the primary author of the Declaration of Independence.  He and George Mason, authored the Virginia Declaration of Rights, adopted by the Virginia Constitutional Convention on June 12, 1776.  In addition to codifying rights including freedom from excessive bond, separation of the powers of the three branches of government, the right to freedom of the press, and the right to jury trial, the document states that: all men are equally entitled to the free exercise of religion according to the dictates of conscience”; and that it is the mutual duty of all to practice Christian forbearance, love, and charity toward each other.

Jefferson wrote respectfully of atheists in a letter to Thomas Law in June 1814: “If we did a good act merely from love of God and a belief that it is pleasing to Him whence arises the morality of the Atheist? … Their virtue, then, must have had some other foundation than the love of God.”  In a speech to the Virginia Convention in June 1778, he proclaimed:  “Freedom arises from the multiplicity of sects…For where there is such a variety of sects, there cannot be a majority of any one sect to oppress and persecute the rest.”  Finally he states: “Say nothing of my religion.  It is known to my God and myself alone.”  Letter to John Adams, January 1817.

James Madison, the fourth President, and often identified as the “Father of the Constitution” authored major sections of the Federalist Papers, advocating for the passage of the Constitution.  He was certainly one of the greatest champions of that document. Because his early expressions of his religious views are said to have varied greatly from his private statements late in his life, it is difficult to set forth a concise statement of those beliefs.  Early in his political life he described that the “democratic will” is subordinate to the commands of God, but clarified that those commands are “heard and understood in the individual conscience”. Advocating for the Constitution’s language on the separation of church and state, he stated that “Every new and successful example of a perfect separation between the ecclesiastical and civil matters, is of importance;…in showing that religion and Government will both exist in greater purity, the less they are mixed together.”  Letter to Edward Livingston, July 10, 1822.  Madison spoke and wrote frequently on the issue of religious freedom. He authored Federalist Papers #51, in which he wrote a slight variation of his theme, stating that: “In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.”

 Last, but not least, of our best remembered colonial leaders is Benjamin Franklin.  Never a President, and always somewhat apart from the main stream even of the late 18th century, his thoughts about faith, only months prior to his death are witty and plain-spoken: “I believe in one God, Creator of the Universe…That the soul of man is immortal…As to Jesus of Nazareth, my opinion of whom you particularly desire, I think the system of Morals and his Religion, as he left them to us, the best the World ever saw or is likely to see; but I apprehend it has received various corrupt changes, and I have, with most of the present Dissenters in England, some doubts as to his divinity; though it is a question I do not dogmatize upon, having never studied it, and think it needless to busy myself with it, when I expect soon an opportunity of knowing the Truth with less trouble.”
What does it matter? It is apparent that they were respected by their peers, that they were able to define themselves as men of integrity who embraced people of good will where ever they found them.  Certainly, in forging a government of people from such varied backgrounds they were able to shape the original “big tent” of which President Ronald Reagan spoke.  But further, they constructed a government in which people were able to come together as equals, with the interests of the majority and the interests of the various minorities all considered and given worth.  They gave respect to the individual, created a government based democratic values and expectations of liberty.  Most important, they gave our citizens a Constitution and Bill of Rights that became the basis for a government that has thrived for over 200 years.  Sadly, they did not protect us from the inhumanity of  slavery or insure the equal treatment of women and minorities.  But over the course of U.S. History. the concepts of liberty, equality and justice have prevailed and these fundamental rights were extended to all citizens.
                                                                                          Out of Many, One