How We Got Here: A Look Back At Trailblazing Women In Law

Law360 (May 28, 2018, 8:02 PM EDT) --
Jill Norgren
Jill Norgren
Today's female lawyers stand on the shoulders of several generations of pioneers.

Women began to train for the profession of law in the late 1860s. A few law schools admitted women, but most of these pioneers educated themselves in the same manner as men: They apprenticed with fathers, uncles or trusted friends who were attorneys.

Most of these early female lawyers practiced alone or in small firms. But that was not all that they did. Myra Bradwell, of Bradwell v. State fame, built a large and respected legal publishing empire. Belva Lockwood successfully lobbied Congress to enact an anti-discrimination bill that would open the federal bar to qualified female attorneys. On March 3, 1879, she made a triumphal appearance at the U.S. Supreme Court, where she took the oath given to new members of its bar, and became the first woman admitted to practice law at the high court. Five years later, she gained national prominence when she ran a full campaign for the U.S. presidency. Several women, like Lockwood, combined a solo practice with the life of an activist. Clara Foltz, Lavinia Goodell and Marilla Ricker devoted themselves to criminal justice reform, while Emma Gillett and Ellen Spencer Mussey established the Washington College of Law, primarily to help women train for a legal career.

These 19th century trailblazers, numbering nearly 1,000 by 1900, controlled their professional destinies through ambition, intelligence and networking, successfully forcing the issue of law school admission and bar certification in the 1870s through court challenges and petitioning legislators. Gender discrimination, however, stopped them cold when they attempted to enter government agency service, the judiciary, and the lucrative fields of corporate and railroad law.

Beginning in the 1920s, state and federal agencies hired a small number of female lawyers. This usually occurred at the local level in the areas of domestic law and housing, but also at the federal level, in order to enforce the Prohibition-era Volstead Act. In 1934, President Franklin Roosevelt successfully nominated Florence E. Allen to serve as our country's first female federal appeals judge. For all of the very limited gains, however, well into the 1960s discrimination against women who wished to join the profession continued to dominate the decisions of law school deans, hiring partners and government agency leaders.

A perfect storm of events stretching from the late 1940s to the early 1970s altered the existing social and legal climate, permitting an all-out assault on this discrimination. The change began with post-World War II expansion in the funding of undergraduate education. Large numbers of women, along with men, became the first in their family to earn a bachelor's degree, a prerequisite for law school admission.

Starting in the 1950s, the African-American civil rights movement put the issue of discrimination squarely in front of the American public. The movement provided leadership training for men and for women. And it resulted in a major civil rights bill in 1964, one that specifically prohibited employers from discriminating on the basis of sex. (This became the foundation later for the equally important Title IX of the 1972 Education Act.) At virtually the same time, in 1963, the U.S. Food and Drug Administration approved the first publicly available birth control pill, permitting women reliable control of their reproductive lives.

The war in Vietnam, stretching for more than a decade, from the mid-1960s to 1975, was also part of the "storm." Young men were drafted into the military, leaving law school seats empty. Law schools, having long held to informal quotas on the number of women admitted, now turned to women to fill those seats. And finally, women honed the tools of their assault on discrimination as members of the late-1960s women's movement. They wrote books, spoke on television, marched in the streets, lobbied for anti-discrimination legislation, challenged antiquated birth control laws, supported female political candidates, founded women's public interest law firms, and fought for an Equal Rights Amendment.

My new book, "Stories From Trailblazing Women Lawyers," relates the lives of dozens of extraordinary women who gave lengthy oral histories under the aegis of the American Bar Association's Women Trailblazers Project (2005-2018). The women that I write about were born between 1916 and the early 1950s. Their legal careers occurred before, during and after the perfect storm. They describe being drawn to law school and the practice of law for myriad reasons. For at least one-third of the trailblazers, events of racial and gender rights movements directed, or even compelled, them to learn to use the tools of the law.

Most of the trailblazers went to law school in the 1950s and 1960s. They experienced law school as one of five or 10 women in a sea of men. They were isolated and not infrequently mocked, told to go home and raise children. At some law schools they were not invited into study groups or given their due on law review. At some institutions professors called on them only once a semester during the so-called "Ladies' Day," described by one female Harvard graduate as something akin to a carnival event. Deans permitted law firms to interview on campus after posting "women need not apply" notices next to sign-up sheets.

In her oral history, Shirley Hufstedler, who served as a Ninth Circuit judge and as U.S. secretary of education under President Jimmy Carter, related this grim story: She and Warren Christopher, later President Bill Clinton's secretary of state, were each ranked fifth in their 1949 Stanford Law School class. They each served on law review. In their third year, each of these star students began the traditional search for a post-graduation job. What difference did gender make? The dean recommended Hufstedler for a position as legal secretary. Christopher received the law school's backing to go to Washington, D.C., in order to interview with U.S. Supreme Court Justice William O. Douglas with the hope of becoming his law clerk. Christopher was accepted. Hufstedler turned heel and said, "No, thanks." Other trailblazers reported similar experiences into the early 1960s.

In the period before the 1970s most law firms did not bother to hide their discrimination. Secretaries were told to tell female applicants that women were not hired as associates. Lois Schiffer, now general counsel for the National Oceanic and Atmospheric Administration, recalls a partner said simply, "We hired a woman once. We may never hire another one." One judge tried to deter a female applicant, Ilana Rovner (now a Seventh Circuit judge), from a clerkship by commenting that he could not possibly work with a woman as decorum forbade him from taking off his suit jacket, or rolling up his sleeves. And if a woman was hired, could she make partner? A few did, but many were voted against on the grounds that being a mother prevented her from booking sufficient hours. This was the experience of one trailblazer who was a top earner at her large Houston firm.

Today we have become used to reading about women who serve as federal and state judges. This was not always the case. Meaningful change came to the federal judicial selection process after 1976 presidential candidate Jimmy Carter made a campaign promise. Barbara Babcock, who was assistant attorney general for the U.S. Department of Justice's Civil Division in the Carter administration, related that Carter was very conscious of the vastly expanded political clout of the women's movement. He promised, if elected, a concerted effort to consider women for top governmental positions. After his victory, the White House established a committee charged with identifying women who were qualified to fill positions at the new president's disposal. This promise, combined with the passage of the 1978 Omnibus Judgeship Act creating a large number of new judgeships, resulted in a substantial change in the gender composition of the federal courts.

The ABA's oral history project and my book chronicle the extraordinary successes but also the significant discrimination faced by several generations of female attorneys. Their stories permit us to consider the immediate and long-term impact of discrimination on individuals. Their histories also provoke consideration of the impact of this prejudice on society, if you like "what if" musings. How might criminal justice reform have been different had there been more female lawyers throughout the 20th century? How would the civil law code read? Would federal and state constitutions have had more, or different, amendments? Would the structure of law firms have evolved in different ways?

Viewing the status of women in the legal profession through the lens of history demonstrates tremendous advances since the 1870s. Over the past 50 years, dramatic progress has been made with respect to the admission of women to law school programs. Following this expanded educational opportunity, the number of women who identify as lawyers in our national census has reached impressive numbers. The percent of women serving in state and federal governments, including judicial positions, has increased (although we need to keep our eye on women's access to federal judgeships).

The proverbial glass is half empty, however, when we review the limited and stagnating progress of women in U.S. law firms. A significant number of women are hired each year as associates but sponsorship, large law firm structure, and work-family issues are tamping down the opportunity for partnership.

When the women interviewed for the Women Trailblazers Project were asked about the future of their profession, many responded that the largest issue facing women centered on investing in solutions to the issue of work-family balance. Individually, younger women are front-loading work experience and delaying first-time pregnancies. Surely, this cannot be the only way to keep the significant talent of women in the profession of law.



Jill Norgren, Ph.D., is the author of three books about female lawyers, the most recent of which is "Stories From Trailblazing Women Lawyers" (New York University Press, 2018). She is professor emerita in the departments of political science at John Jay College of Criminal Justice, and the Graduate Center of the City University of New York.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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