They Fought the Law: Fred Strebeigh's Equal | The Nation


They Fought the Law: Fred Strebeigh's Equal

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A key step in integrating this frat-boy profession was a lawsuit brought by female law students in 1975 against the New York City law firm Sullivan & Cromwell, which like many big firms systematically rejected female applicants with stellar résumés while hiring less qualified men. Strebeigh expertly covers every angle of the complicated litigation, including Sullivan & Cromwell's savvy decision to hire liberal labor attorney Ephraim London for its defense. His tactics included calling the female lawyer for the plaintiffs a "yahoo" and "puerile"--shenanigans that few federal judges will abide. Constance Baker Motley was no exception: she was an African-American civil rights legend, the only female judge on the US District Court in southern New York and a miracle draw for the plaintiffs. The defense asked Motley to recuse herself because, in counsel's words, "I believe you have a mindset that may tend, without your being aware of it, to influence your judgment." Here Strebeigh's analysis is particularly acute:

About the Author

Michael O’Donnell
Michael O’Donnell is a lawyer in Chicago whose writing on legal affairs has appeared in Bookforum, Washington...

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[A] crucial realization...was emerging about man-made law: Male lawyers like London supposed (and in this case had the nerve to argue, on behalf of an all-male partnership) that the standard for unbiased judging was white and male. If a judge diverged in sex (female) and race (colored), a male lawyer could try to remove her for embodying "bias" not common in judicious white males.

Judge Motley, needless to say, denied London's motion.

Still, it is worth considering, if only to test the nonsense reflex, why women were assumed to be unsuited to judging and, for that matter, to lawyering. Prejudice against female judges seemed to include the thought that women could not corral or even intimidate male attorneys in the way that a good stern judge--all jowls and white whiskers--was expected to do. When law firms did start to hire women in the '60s and '70s, they usually placed them in trusts and estates departments, where the work involved preparing wills, navigating delicate issues like death and inheritance and handling detailed paperwork. Women were deemed not confrontational or aggressive enough for the man's game of litigation. Increasing integration has shown these assumptions to have been false; female judges and attorneys can be ferocious too, and they have certainly kept pace with their male counterparts. And if women have altered the belligerent masculine ethos of lawyering, that is not necessarily a bad thing; the increasing trend toward mediation, which many credit to women, has resolved countless legal disputes with less time and cost than horn-locking in court. In other words, the years-old biases against female attorneys sailed onward, untested, but upon testing turned out to be no more reliable than the suppositions that gays can't be soldiers, blacks can't be doctors and white men can't jump.

Although women now account for nearly half of all American law students, there are lingering biases against them in the hierarchy of the profession: they are still woefully underrepresented in law firm partnerships (18.3 percent), general counsels' offices (18.4 percent), law school deans' suites (19.8 percent) and judgeships (26.9 percent). For progress to continue, the profession must continually re-evaluate its assumptions about the relevance of gender to legal tasks and above all end the mommy track, which denies partnership to mothers. It's a problem that all lawyers know about but few openly acknowledge--with the notable exception of the Project for Attorney Retention, whose detailed studies about sex disparity in law firms have lent a modicum of empirical rigor to an emotional issue.

Strebeigh concludes with a section on the Violence Against Women Act of 1994 (VAWA), which provides federal support for state investigations and prosecutions of rape, domestic violence and other crimes targeting women. VAWA also sought to make up for the shocking persistence in many states of anachronisms like the "utmost resistance" standard, which precluded a rape conviction unless the woman used all her physical strength to prevent penetration, and the marital rape exemption, which held that a husband cannot be charged with raping his wife. The statute combated these dated standards by creating a right to sue in federal court anyone who attacked a woman because of her gender. Opponents to the proposed law feared that this provision would flood the federal docket, and, remarkably, Rehnquist lobbied against it, publicly arguing that it would undermine states' traditional prerogative in this area of law. Congress passed it anyway, and in 2000 Rehnquist wrote the court's 5-4 decision (joined by Justice Sandra Day O'Connor) in United States v. Morrison that struck down the provision authorizing federal suits. The court's dubious rationale was that Congress had exceeded its constitutional authority--even though the Fourteenth Amendment gives Congress broad power to pass civil rights legislation. In today's meager discourse about legal issues, most of us just nod along cynically when politicians mention the Rehnquist court's "federalism revolution." Equal puts the term to work, vividly illustrating how the conservative court's efforts to shift power away from the federal government and toward the states frequently had the convenient effect of invalidating progressive federal laws.

Notably absent from the book is any significant discussion of abortion rights, which in this country have largely been won in courts rather than legislatures. Some readers, viewing reproductive freedom as the most fundamental of women's rights, may see the omission as a major oversight, although Strebeigh may simply have wanted to avoid retelling a familiar story. On the conceptual level, though, Strebeigh's decision makes sense: much of the constitutional discussion in the book centers around the Fourteenth Amendment's straightforward equal protection clause, whereas abortion rights are based on the murkier and more malleable due process clause--which, on its face, says nothing about abortion. Many important legal advances, including abortion rights but also, lately, protections for gays and lesbians, would wobble less today if they rested on the sturdier foundation of equal protection, with its relatively clear textual guarantee. Leaving aside abortion law allows Strebeigh to avoid having to untangle legally (as opposed to politically) knotty problems.

If this decision was defensible and even savvy, that does not mean Equal is immune to criticism. One is loath to venture a word in support of Rehnquist, whose consistent votes against women's interests did far more harm than his outfit-sneering, but Strebeigh, in his zeal, occasionally swipes at the late chief justice for the wrong reasons. Strebeigh calls out a Rehnquist opinion for omitting vulgar profanity from the case record, and for referring to 100-year-old Supreme Court decisions by using the royal "we" (as in, "we held in that case"). But both habits are actually common among the justices, who prize decorum and a sense of institutional continuity. Strebeigh also accuses the Bush administration of nominating the hapless Harriet Miers to the court in 2005 so that Bush could hide behind the failed attempt to appoint a woman when he went on to pick a man, which is what he wanted all along.

This is a bizarre and unsupported charge; there is plenty of room for criticizing the Miers pick on grounds of cronyism and incompetence without digging for the buried treasure of conspiracy theories. But these are quibbles, because by and large, Strebeigh demonstrates exceedingly fine judgment in his analysis of the court.

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