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BARRED FROM THE BAR -- A HISTORY OF WOMEN AND THE LEGAL PROFESSION

6. THE "MAKING IT" MYTH

I consider the right to elective abortion ... the cornerstone of the women's movement because without that right, we'd have about as many rights as the cow who is brought to the bull once a year. -- A pro-choice activist before abortion was legally obtainable [1]

Ladies and gentlemen, can you believe that this pretty little thing is an assistant attorney general? --  Said by a judge as he asked Nannette Dodge to face the courtroom in the 1980s [2]

We are used as tokens, vaunted as exceptions, while every problem that we share is treated ... as a special case. So to those who say, "Any woman can," as if there is no such thing as discrimination, as if that were exceptional, I say this ... all women can't. And that will be true so long as those who do make it are the privileged few. Until all women can, none of us succeed as women, but as exceptions. -- From a 1982 speech by attorney Catharine A. MacKinnon [3]

It was soon apparent that without a big push, the EEOC was not going to vigorously pursue the issue of sex discrimination in employment. [4] But in the 1960s, although thousands of women were playing an indispensable role in the Civil Rights and antiwar movements, writing and distributing leaflets, marching in demonstrations, and facing the same dangers in the South faced by men, their gender-programmed "roles" did not change.

Male movement leaders spoke out passionately for social justice, but they said nothing about advancing women into leadership positions instead of leaving them on the sidelines -- cooking, cleaning, making coffee, and providing sexual companionship. On those occasions when women asked for the right to participate in decision making, they were usually greeted with laughter and even outright hostility. [5]

Many young lawyers, both men and women, were changed and moved by the social struggles of the 1960s. Thousands of them decided to devote their careers to poor and minority clients and/or civil rights and other social cases. Even corporate law firms, in order to attract the best of the young graduates, found it necessary to promise job applicants free time to volunteer for unpaid public interest cases.

Many older lawyers also immersed themselves in "movement" law, Mary Kaufman, the woman who had attempted to convict I. G. Farben, left private practice in 1966 when she became terribly upset by the war in Vietnam. She played an important role defending arrested civil rights and antiwar activists around the country, and training volunteer lawyers in the National Lawyers Guild's Mass Defense Office. [6]

Faced by demands for an end to the war in Vietnam and solutions to social problems, President Lyndon Baines Johnson signed the Economic Opportunity Act, launching a War on Poverty in 1964. Neighborhood-based Community Action Programs were set up in many cities. In 1966 the Supreme Court ordered mandatory, federally funded public defender systems. Within a few years, the number of lawyers available to represent poor defendants rose more than six-fold. Until then, no course on poverty law had ever been taught at a law school. But by the late 1960s, dozens were being offered to meet the needs of the many students anxious to serve as public defenders.

The director of the National Conference of Black Lawyers, Haywood Burns, commented on the impact these programs had on lawyers: "I think the southern civil rights movement pricked the conscience of a lot of lawyers. And the Legal Services program made it possible for people to do poverty law and still eat." [7]

In Community Action Program offices in poor neighborhoods, many people got together for the first time and discussed common problems. As women receiving payments from Aid for Dependent Children (AFDC) met one another, they talked about the hardships of living on welfare payments and about the indignities they suffered. They were tired of social workers showing up at their doors unannounced at any time of day or night, searching for husbands or boyfriends who might be "helping out," opening closets to look for new clothing or toys in order to prove that there was more money around than welfare provided.

Often young lawyers met with welfare recipients to advise them on their legal rights. By 1966 local welfare rights groups had founded the National Welfare Rights Organization (NWRO). After coordinated demonstrations at welfare centers in several cities in 1968, complete with sit-ins and arrests, the NWRO won numerous concessions, including extra money for necessities like winter clothing for children and scheduled visits from caseworkers. [8]

Welfare mothers had never had allies when their tiny subsistence checks were threatened. In late 1970, Nevada's state welfare department announced a campaign against welfare "cheaters." Without hearings or further warning, 7,000 mothers and children found empty mailboxes or reduced checks when they went looking for their rent and food money. NWRO launched Operation Nevada. Within a few weeks, welfare rights leaders, lawyers, and law students, many of them young women like Sylvia Law, who had recently graduated from NYU Law School, arrived in Nevada. They held public hearings, organized demonstrations, and filed a federal lawsuit to force the state authorities to reinstate welfare payments. In a few weeks the federal district court ordered full back payments made to everyone deprived of their rights.

By then, lawyers in several major cities were forming experimental law firms they called "law communes" to concentrate on the defense of people's political and economic rights. They planned to organize their farms democratically, with equal wages and decision-making powers for every member of the firm, instead of the highly competitive pecking order common at corporate law firms. [9]

Typical was the Law Commune in New York City, formed in 1968 when hundreds of students were arrested during antiwar protests at Columbia University. Despite the good intentions of the nineteen antiracist, antiwar men of the commune, only two women lawyers were invited to join in the project. In most other cities, women in commune offices were usually there as legal secretaries.

The women of New York's Law Commune were less than satisfied with their "equal" status. One woman member summed it up this way:

... at least here everybody admits that there is such a thing as chauvinism, at least verbally. Other places I've worked, well, some tried to deal with it, but in most, either the man would say, "Forget it, I'm not a chauvinist" or "I am but it doesn't matter." ... It's hard for them [women] to be on the same competitive level as a man. Men are told all along that the best possible thing for them is to be famous, to be a star.... The profession offers an incentive to be a male chauvinist. You get points as a lawyer for being competitive, aggressive, famous, for destroying the other side -- so it's hard to be schizophrenic, to be one way in court and another outside of it. [10]

Women's law communes did not form until a few years later. Most women attorneys continued to take jobs in Legal Services offices where many women worked and the atmosphere was more congenial. A few were even put in charge. Carol Ruth Silver, a graduate of the University of Chicago Law School, who spent more than a month in a jail in Mississippi during the 1961 Freedom Rides, eventually become executive director of the Berkeley Neighborhood Legal Services program.

By then a new women's rights movement was in the early stages of development. While they were involved in campaigns against the war, for minority rights, and poor people's legal rights, women activists were quietly getting together to discuss their special problems. It was one thing to discuss employment and educational discrimination, but many of them had never openly talked about the deep dark secrets of rape, sexual harassment, wife battering, and illegal abortions.

The more women raised these issues, the more they realized they needed a movement of their own. The feminist movement of the early part of the century began to show signs of awakening from its fifty-year Rip Van Winkle nap. Women law students and lawyers played an important role in that wake-up call.

First there were scattered rebellions here and there. On Ladies' Day at Harvard in 1968, eight women showed up at their property law class prepared to present a moot court (practice) case. As usual, the professor had chosen embarrassing "stolen property" -- ladies' lingerie.

The women filed into class dressed like male attorneys -- all in black, wearing horn-rim glasses and carrying briefcases. At the appropriate moment for presenting the "evidence," they simultaneously opened their briefcases and showered the professor with frilly underwear. It was the last Ladies Day at Harvard. [11]

In a more serious vein, at the American Civil Liberties Union, three women lawyers, Faith Seidenberg, Pauli Murray, a black civil rights attorney, and Dorothy Kenyon asked the ruling Board of the ACLU to finance a Women's Rights Project, specifically to press cases for women's rights to equal protection guaranteed under the Fourteenth Amendment. Ruth Bader Ginsburg, a volunteer at ACLU, became director of the project. Ginsburg argued half a dozen cases before the nine justices of the U.S. Supreme Court, probably never dreaming that someday she would be seated among them.

In the District of Columbia, volunteer women lawyers founded the Women's Legal Defense Fund (WLDF), which eventually would bring about recognition of sexual harassment as a violation of Title VII. Women law students at New York University formed the Women's Rights Committee. They won their first legal battle in 1969, making a prestigious for-men-only scholarship available to women. Through their efforts, the first Women in Law course in the nation was introduced at NYU.

In the fall of 1969, women law students at NYU and Columbia University joined together and threatened to sue a large New York law firm that refused to even schedule interviews with women graduates. Undoubtedly to avoid court action, the firm reversed its policy "as a courtesy."

Columbia Law School established an Employment Rights Project, with federal EEOC funding, and filed a class-action lawsuit on behalf of all women applicants against another large law firm in 1971, hoping to set a precedent. Constance Baker Motley, the only woman judge in the federal court of New York State, was assigned to the case. Lawyers from the large firm attempted to have Motley disqualified for bias (as a woman) against the defendant. When the law firm lost its appeal, it settled and signed a new set of hiring guidelines.

Winning a case here and a case there, just as suffragists had won voting rights in a few states before 1920, women found progress painfully slow. Law firms hired women by ones and twos but informed them that they would never become partners in the firm. Other female professionals, and advocates for abortion rights and welfare rights, as well as women who were pushing for genuine equality in job opportunities, decided to do what participants in every other movement in the sixties had done -- join together and march to show their strength.

On August 26, 1970, fifty years to the day after women won the right to vote, 100,000 women marched down Fifth Avenue in New York City carrying signs with demands ranging from legal abortion to equal job opportunities and child care centers.

The press had not dared to ridicule the Civil Rights Movement or even the welfare rights movement, but just as it had mocked the early suffragists and called them "she-males," so now it had a field day with the new women's movement. When a small group of feminists, tired of being defined by their hairdos, clothes, and body parts, burned brassieres at an Atlantic City Miss America contest, the entire movement and all of its urgent demands were reduced by the press to a "bra-burning brigade of lesbians."

In the surge of this second wave of feminism, a number of women lawyers decided to form their own law firms. Over the next few years these firms filed many successful sex discrimination suits in the communications industry. Women lawyers even sued a bank to help married women establish their own credit. But these lawyers soon faced serious economic problems, just as women in law had in the past. Because they often worked to defend poor women for low fees, refused cases that contradicted their feminist ideals, and took Title VII cases that sometimes dragged on for years before a penny of income came into the firm, most women's law communes by the late 1970s could no longer stay in business.

One woman lawyer gaining her credentials in those days was Hillary Diane Rodham, later to be First Lady Hillary Rodham Clinton. A firm believer in racial equality and women's equal rights, [12] Rodham graduated from Wellesley in 1969 as the women's movement was becoming more visible. Told by a Harvard professor, "We don't need any more women," Rodham went on to Yale Law School, where she met Bill Clinton. After graduation she studied child development and family law for a year and then joined the Children's Defense Fund. In 1973 she spent six months as legal counsel to the House Judiciary Committee investigating the Watergate scandal that led to President Nixon's resignation. In 1974, Hillary Rodham moved to Arkansas with Bill Clinton, where she taught law for several years and in 1980 became a senior litigating partner at the Rose Law Firm in Little Rock. As a director on three major corporate boards, she worked to convince large corporations like Wal- Mart to hire and promote women and minorities.

In 1970 a well-known figure in the women's movement, New York lawyer Bella Abzug, ran for Congress. "Nobody had ever run on a women's rights plank," Abzug later told an interviewer. Her campaign slogan was: "This woman's place is in the house -- the House of Representatives." Abzug won the election and continued to speak out on women's rights in Congress. President Carter fired Abzug as head of the Women's Commission in 1979 because, Abzug explained, the Commission argued with Carter over budget cuts affecting women.

Our committee said to him, "You can't cut the little women have in the budget. The majority of women in this country are suffering. They are the majority of the poor, the majority of the unemployed, the majority of the old; they can hardly survive in this period of economic crisis." Carter's answer was that economic policies were not women's issues. [13]

Despite all these efforts, the number of women law students had increased in the early 1970s to only 9 percent nationally. In 1971, only 70 women registered at Harvard Law School in a class of 563, the first time any class was more than 10 percent female. A decade later in 1981, at a class reunion, two members of that class interviewed most of the women to record their recollections of college and learn what had happened to them since. [14]

The women remembered their law school experience as something of a nightmare. The attitudes of Harvard administrators, teachers, and students had not changed very much since the 1950s, when less than a dozen women were entering the law school each year. On bathroom walls and in passageways, ugly graffiti portrayed the Harvard law coeds as fat monsters with acne and hairy armpits. "Because we were fledgling lawyers, we weren't women," one alumna said. [15]

Bella Abzug (in hat) ran for Congress and won in 1970 with the campaign slogan: "This woman's place is in the house -- the House of Representatives." Abzug is shown here marching with fellow feminists.

Although some younger professors supported women's rights, many older professors refused to modify their behavior. The atmosphere at the law school was ruthlessly competitive for all of the students. Those with the highest first-year grades made Law Review status, a major step toward future career success. There were no makeup examinations, not even for illness. A higher percentage of women than men finished their first year in the top tenth of the class. Since women were only 10 percent of entering students, they were the cream of the crop of all women college graduates. Less competitive than the men, they also gave one another considerable support, organizing a group called "Freaked out Friends," where they discussed their problems on the campus and women's issues in general.

The women's liberation movement had considerable impact on all of them, although only a few, like Marley Sue Weiss, spoke out regularly in class, protesting sexist language in case study presentations. Weiss had been a founding member of a women's liberation group at Barnard College. At Harvard she helped organize the Women's Law Association (WLA). WLA campaigned for a myriad of changes, from more women's bathrooms to an increase in the number of women admitted and the hiring of women law professors. As to the last demand, the administration claimed it could not find a qualified woman teacher. Actually, the previous year Ruth Bader Ginsburg, the future Supreme Court justice, had taught a Women in the Law course at Harvard, yet was not invited to teach full-time. When Columbia Law School offered her a permanent tenured position, she dropped her efforts at Harvard.

In 1972, Title IX of the Education Amendments Act forbade discrimination in educational programs receiving federal funds. Law school admissions and placement offices were pressured to obey the law and make sure that more women were admitted and that equal employment opportunities existed for those who graduated and passed the bar examination. With law firms under legal pressure to hire more women, many of the women at Harvard decided to try to make it in the male- dominated business law world.

Nevertheless, about thirty of them volunteered to spend twenty hours a week at the Harvard Legal Aid Bureau helping indigent Boston clients. Some later said that this work in the real world kept them from dropping out of school. A surprising half of the volunteers decided to make careers in public interest and poverty law. Some were bluntly told that they were wasting a space at Harvard that could have gone to someone interested in "real law."

Despite such pressures, most of the volunteers continued this work after graduation. Judy Berkan moved to Puerto Rico in 1977, where she defended political activists. Marley Sue Weiss's first job was dispensing legal advice for the United Auto Workers union, and several other Harvard women worked as public defenders.

Those who decided to compete with men for top positions found the job search unequal but improved by 1974. They obtained positions with prestigious law firms, but almost always they were alone -- token women to satisfy legal requirements. Above them was what came to be called a "glass ceiling," an invisible barrier of prejudice that meant they would never become a partner in the firm. It wasn't until 1984 that the Supreme Court, in Hishon v. King and Spalding, ruled that law firms could be sued under Title VII for denial of partnership status on the basis of sex.

While the women of Harvard's class of 1974 struggled to complete law school, the abortion issue became the main focus of the women's liberation movement. Until 1969, legal abortion was unavailable in the United States. Even in states with liberal laws, a doctor could perform the procedure only on women who had been raped, were victims of incest, or were in danger of death if they continued their pregnancies.

Each year thousands of desperate women slipped off to lower-priced back-alley abortionists for unsafe procedures. Many of them were injured or even lost their lives. Safe abortions were available only to women with enough money to travel to countries where abortion was legal, but most women could not afford these alternatives. In the United States organized crime had a stable of doctors performing expensive abortions under its protection. The 1970 Nixon Report on Crime listed illegal abortions as the third highest moneymaker for the Mafia.

One women's statement, reprinted at the start of this chapter, reflected the feelings of millions of others who considered the right to abortion the most important right of all. A two-pronged fight in the courtroom and in the streets was launched to legalize abortion. As lawyers, the majority of them women, took cases to state courts, movement activists held hearings, set up information booths in public places, lobbied state legislators, and marched and rallied in major cities.

In 1969, by a 4 to 3 vote, the California Supreme Court reversed the conviction of a doctor for performing an abortion and declared the restrictive state law unconstitutional. Citing "the Supreme Court's and this Court's repeated acknowledgment of a 'right of privacy' and of liberty in matters related to marriage, family, and sex," California's highest court declared that women had "the fundamental right ... to choose whether to bear children."

The "right to choose" became the slogan of the women's liberation movement. Opponents of legal abortion defended the fetus's "right to life." Supporters of the right to choose pointed out that right-to-life advocates had nothing to say about babies killed by bombs in Vietnam or the welfare of children from poor families.

New York, Hawaii, and Alaska repealed laws prohibiting abortion, but in every other state they remained in force. So the fight continued. In Texas, a twenty-seven-year-old woman lawyer, Sarah Weddington, became involved in a case that would make history. [16] Weddington was by no means an activist in the social movements of the 1960s. The daughter of a minister, she grew up in a small West Texas town with conventional ideas about women's roles. At a small Methodist college in Abilene, Weddington decided to go on to law school. The dean advised against it, insisting that law school would be too demanding for a woman.

Perhaps to prove him wrong, Sarah Weddington applied and was accepted by the University of Texas School of Law in Austin in June 1965. She was one of five women among 120 men in her entering class. At school, she met and fell in love with Ron Weddington. With three years of law school ahead, they decided to postpone marriage until after graduation. In 1967, Sarah found out that she was pregnant and decided that an abortion was the only way that she and Ron could stay in school. Later she described the terrible ordeal of "a scared graduate student in 1967 in a dirty dusty Mexican border town to have an abortion, fleeing the law that made abortion illegal in Texas." [17]

In 1968 Ron and Sarah married. While her husband continued his studies, Sarah went out job hunting. She met the usual fate of women lawyers searching for their first job -- no offers -- until one of her professors offered her a temporary research position.

By then the Berkeley Free Speech movement had spread to Austin and the campus hustled with civil rights and antiwar activity as well as a fledgling women's movement. Sarah Weddington started attending what the women called their "consciousness raising sessions." Soon the group published a guide to places where safe abortions were available and started a referral project. Worried that they could be arrested for their activities, Weddington researched the legal issues involved.

In the law library she stumbled across the Supreme Court's Griswold decision regarding birth control that she believed was applicable to the issue of abortion rights. If the Court considered contraception a personal matter in which the government had no right to interfere, Weddington reasoned, the abortion decision should he in the same category. She decided to file a lawsuit challenging Texas's antiabortion statute, but she needed a client -- a pregnant woman brave enough to take her case to court.

Norma McCorvey agreed to file suit as "Jane Roe" against Henry Wade, the district attorney of Dallas County for thirty-five years and a committed foe of legal abortion. In June 1970, after Weddington and McCorrey had lost in the lower courts, the Texas State Supreme Court ruled in favor of "Roe." Commenting on the decision, a New York Times editorial stated, "It certainly proves that genteel southern ladies can be very good lawyers." [18]

Wade immediately announced that he would appeal the decision. Meanwhile, lawyers were taking on similar cases in other states. [19] It was almost certain that one of these cases would come before the Supreme Court, making abortion either legal or illegal throughout the nation.

On December 13, 1971, four attorneys waited in the Supreme Court building in Washington, D.C., ready to argue their cases. Because three of them were women, many lawyers referred to December 13 as Ladies' Day. Weddington noticed that "ladies" were not frequent visitors to the building. The rest rooms were all marked "Men," and all of the justices were also male.

The Court chose to review Roe v. Wade but delayed its decision for over a year. On January 22, 1973, the Supreme Court avoided the constitutional issues and ruled that "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." (Italics added.) The decision also allowed states to place limitations on abortion. The right to choose had been tentatively won, but the door had been left open for an all-out legal war to minimize its impact.

After the Roe v. Wade victory, the largest women's organization, the National Organization of Women (NOW) decided to devote most of its attention to ratification of the Equal Rights Amendment (ERA), which would automatically strike down all state laws discriminating against women. [20] Some women in NOW thought that since many laws had already been changed, the energies of the women's movement should be turned instead to issues like day-care centers and health care for all, but they were outvoted.

In 1972 ERA had been passed by both houses of Congress, but thirty-eight states had to ratify the amendment before it could be an official part of the Constitution. Despite an extension on the seven-year deadline, ERA was defeated three states short of ratification. A worn-out women's rights movement once more left the streets, returning only when the right to choose came under sharp attack. As the economy declined, poor women -- black, Latina, and white -- saw day-care centers close and their conditions worsen. No viable movement existed to help them fight for their right to survive.

Almost immediately after the Roe v. Wade decision, several states passed restrictive legislation requiring the consent of husbands and even the parents of unmarried minors or requiring doctors to attempt to talk women out of an abortion decision by graphically describing the stages of fetal development. "The states are not free," declared Supreme Court Justice Harry Blackmun, "under the guise of protecting maternal health or potential life, to intimidate women into continuing pregnancies."

In 1976 Congress passed the Hyde amendment, banning the use of Medicaid funds (federal money designated for the health care of the poor) for abortions, except in cases where the mother's life was endangered. When opponents of the amendment tried to at least allow payment for abortions for rape victims, they were told that rape almost never caused pregnancy and that women would pretend they were raped in order to receive a paid abortion. [21]

When the law was legally challenged and the case reached the Supreme Court, the conservative majority on the Court ruled the Hyde amendment legal. Three justices dissented. One of them, Thurgood Marshall, the only African American justice on the Court, wrote a powerful minority opinion opposing the decision.

The class burdened by the Hyde Amendment consists of indigent women, a substantial proportion of whom are members of minority races. ... There is another world "out there," the existence of which the Court either chooses to ignore or fears to recognize. In my view, it is only by blinding itself to that other world that the Court can reach the result it announces today. [22]

In 1989, under continued pressure from the women's movement, Congress voted to restore funding in cases of rape or incest, but President George Bush vetoed the legislation. The Hyde amendment was repealed shortly after Bill Clinton took office in 1992.

Laws relating to the crime of rape were another "unmentionable" issue that women lawyers tackled head on. In many states a witness was required in order to convict a rapist, although everyone realized the improbability of a rapist's committing his crime in front of others! In other places a rape victim had to prove "earnest resistance," even if she had been threatened with a deadly weapon. Lawyers defending accused rapists were allowed to ask victims about their sex lives and comment on their morals and even the way they looked. Many women apparently hid the fact that they had been raped for fear that they would be humiliated and treated like criminals.

Not surprisingly, the California Law Review in 1973 stated that "a man who rapes a woman who reports the crime to police has roughly seven chances out of eight of walking away without a conviction." [23]

In New Mexico, Connie K. Borkenhagen urged the state legislature to change the laws regarding rape trials. To make her point she told the story of a robbery victim hypothetically cross examined by a lawyer the way a rape victim is questioned.

"Mr. Smith, you were held up at gunpoint on the corner of First and Main?"

"Yes."

"Did you struggle with the robber?"

"No."

"Why not?"

"He was armed."

"Then you made a conscious decision to comply with his demands rather than resist?"

"Yes."

"Did you scream? Cry out?"

"No. I was afraid."

"I see. Have you ever been held up before?"

"No."

"Have you ever given money away?"

"Yes, of course."

"And you did so willingly?"

"What are you getting at?"

"Well let's put it like this, Mr. Smith. You've given money away in the past. In fact, you have quite a reputation for philanthropy. How can we be sure you weren't contriving to have your money taken from you by force?" [24]

Laws were gradually changed, but as late as 1989 a jury in a rape trial in Fort Lauderdale, Florida, found a man accused of raping a woman repeatedly at knifepoint not guilty because "it felt she was up to no good the way she was dressed."

Women attorneys created a new vocabulary for other unspoken crimes against women. Until very recently, the law had little to say about wife beating and even less to say about men harassing women at work with sexual innuendos and insults. These crimes at last were given names: "wife battering" and "sexual harassment." Under persistent pressure from the women's movement, laws were passed to punish those who committed these crimes. However, the reactions of judges to rape, domestic violence, and sexual harassment seemed to vary widely according to the sex of the judge. "I think seventy to eighty percent of men don't believe charges of battering, and all women think it's worse than charged," one woman judge told author Mona Harrington. [25]

In 1994, some 250 federal judges attending the annual convention of the National Association of Women Judges heard a report that indicated that gender bias was still rampant in the judicial system. In juvenile courts, male judges often sentenced girls to longer periods of detention because they felt "boys will be hoys and girls ought to behave like little ladies." They also more frequently ordered psychiatric examinations "for women claiming sexual harassment, but not for men who charge race or age discrimination." [26]

Women became acutely aware of these less than objective differences in male-female attitudes during the confirmation hearings for Supreme Court nominee Clarence Thomas in 1993. A black woman law professor, Anita Hill, who had worked for Thomas, testified that he had sexually harassed her over a long period of time. The senators on the Judiciary Committee were all male, and the "all-white, all-male panel clearly could not, or would not, comprehend Hill's story." [27] Some observers thought that they glossed over Hill's charges because they believed in the "boys will be boys" mentality. Others alleged more sinister motives.

By the mid-1980s and mid-1990s, civil rights and women's rights advocates fought simply to "run in place" in an economy that appeared to be in a permanent slump. For African American and Latina women in the field of law, the gains had been modest.

In 1970, black and Latino lawyers of both sexes composed only 1.3 percent of all lawyers and there were only about 800 nonwhite law students out of 65,000 in the nation. After the Supreme Court ordered affirmative action programs in 1976, more nonwhite students were admitted to law schools, but they found themselves at a severe disadvantage. Many of them had attended inferior ghetto high schools and found law school extremely difficult. Out of those who completed their studies, their pass rates on the bar exam were barely half that for whites. Only a few were hired by law firms -- to fulfill legal requirements -- so most took public defender and other government jobs.

Black women did a little better in the private job market than black men. To satisfy affirmative action guidelines for the hiring of women and racial minorities, many firms turned to a two-for-the-price-of-one scheme. They hired one new associate who fulfilled both race and sex requirements for one salary -- a black woman. Sometimes they opted for a three-for-one candidate -- a black Latina woman. In any case, many African American and Latina women lawyers often preferred to work in situations where they could help other blacks and Latinos.

Anita Hill smiles during Clarence Thomas's confirmation hearing when Senator Howell Heflin asks her if she has a "martyr's complex."

Sheila Rush Okpaku certainly could have been a likely candidate to fulfill a large law firm's affirmative action requirements when she graduated from Harvard Law School in 1964, the only African American in a group of four or five women in a class of 400. Instead, she went to work for the NAACP Legal Defense and Educational Fund.

Okpaku quickly "became disillusioned with test cases, and their effect on poor and black people." In 1968, she went to work as associate director of the Community Law Office (CLO) in Harlem and East Harlem, New York City's largest black and Latino ghettos. The CLO had been organized during a tenant-landlord dispute in Harlem, when a group of volunteer lawyers from Wall Street firms set up a free legal clinic in the neighborhood. CLO was determined to provide "the kind of legal representation that has heretofore been limited to the rich ... instead of the spotty help of most Legal Aid programs or the often mass production representation of Legal Services programs." Okpaku became director of CLO in 1971. [28]

Other black women lawyers went to work for the government in hopes of having long-lasting power to change and enforce the laws that affected black people. Eleanor Holmes Norton, born in 1933, grew up in Washington, D.C. Angry about segregation, she remembered that she "could not understand why black people were abiding this treatment ... it was almost embarrassing to me that there was not a civil rights movement." [29] In 1970 Mayor John V. Lindsay appointed Norton as head of the New York City Commission on Human Rights, and from there she was appointed to head the U.S. Equal Employment Opportunity Commission. Norton successfully reduced a logjam of 70,000 neglected discrimination cases involving minorities and women.

Barbara Jordan, born into a poor family in Texas in the middle of the Great Depression, worked her way through college and Boston University Law School. In 1965, Jordan became the first black woman elected to the Texas State Legislature. In 1972 she was elected to the U.S. Congress, where she worked hard for the benefit of the black, Latino, and white working-class people of her district.

Patricia Roberts Harris became the first black woman in a presidential cabinet when she was named secretary of Housing and Urban Development by President Jimmy Carter in 1977; she became secretary of Health, Education, and Welfare in 1980. Harris had attended Howard University and participated in the 1943 desegregation sit-ins in Washington. At her Senate confirmation hearings for the post of secretary of Housing and Urban Development, Senator William Proxmire asked her if she would "really make an effort to get the views of those who are less articulate and less likely to be knocking on your door with outstanding credentials?" Harris answered:

Senator, I am one of them. You do not seem to understand who I am. I am a black women, the daughter of a dining-car waiter. I am a black woman who even eight years ago could not buy a house in some parts of the District of Columbia.... I assure you that while there may be those who forget what it meant to be excluded from the dining room of this very building, I shall not forget. [30]

Constance Baker Motley also chose the route of political office, first being elected to the New York State Senate and in 1965 becoming borough president of Manhattan, the first black woman in either post. In 1966 Motley became the first black woman to sit on the U.S. District Court for the Southern District of New York State. In 1980 she became chief judge of the court.

Representative Barbara Jordan addresses a Democratic Party panel. Co-panelists include Senator Stuart Symington (center) of Missouri and Senator (later vice president) Walter Mondale (right) of Minnesota.

Although most of the first group of pioneer Latina attorneys earned their degrees after the socially conscious days of the 1960s, almost all of them focused their careers on the task of improving conditions for poorer Latinos. [31] Antonia Hernandez is one example. She arrived in the East Los Angeles barrio (neighborhood) with her Mexican parents when she was eight, suffering in schools where bilingual programs did not exist. [32] She decided to become a lawyer in order to change the laws that were holding back Latino children. In 1981 she became a staff attorney for the Mexican American Legal Defense Fund (MALDEF), promoting affirmative action and bilingual programs.

Less than 300 Latina lawyers have been appointed or elected as judges, but many of them have handed out social justice along with legal justice. Petra Jimenez Maes, like so many women lawyers before her, started her law career by offering free legal services to New Mexico's poor. Appointed to fill a state district court vacancy in 1981, Jimenez Maes was elected for a new term and in 1984 established New Mexico's first family court. She was awarded MALDEF's Distinguished Service Award for her development of programs to help the youth brought into her courtroom. Likewise, Myrna Milan, the first Latina appointed as a municipal court judge in Newark, New Jersey, created an alternative sentence program for young offenders.

Irma Vidal Santaella, the original pioneer Latina attorney, was appointed to the New York State Supreme Court in 1983 (see Chapter 5).

Carmen Beauchamp Ciparick, the daughter of Puerto Rican immigrants, in 1993 became the first woman appointed to New York State's highest court -- the Court of Appeals. In a landmark decision as state Supreme Court judge in 1990, she ruled that a state program to provide prenatal care for the working poor was unconstitutional because it excluded abortions. [33]

Patricia Roberts Harris, who served as secretary of Housing and Urban Development and secretary of Health, Education, and Welfare, was the first black woman in a presidential cabinet.

Despite the increase in their numbers, very few women lawyers have practiced as private criminal attorneys. [34] More have been seen in courtrooms, however, as Title VII has made it possible for them to win jobs as district attorneys and public defenders. It remains difficult for any woman attorney, no matter how competent, to find paying clients for a private practice. Many people accused of crimes, whatever their race or sex, may realize that white male lawyers are more likely to have all-important connections with judges and prosecutors.

But when male criminal lawyers are asked why they think this gender gap exists, they continue to insist that women lack "the necessary combative nature in the courtroom" and that "once before a judge, a women's self-confidence and intelligence would quickly evaporate." Anyway, they often add, women want it that way to avoid "sleazy clientele" and "possible physical risks." [35]

Few male attorneys ever mention the behavior of judges toward women attorneys as a possible stumbling block for women's "self-confidence." One woman attorney, Alice McClanahan, minces no words when she lectures law students on the problems women lawyers continue to face in the courtroom.

You will meet with rudeness, be patronized, swept aside and often have to fight for the merest right. You will find judges inclined to give the best of an argument to your male opponents. You will he condescended to, ignored, and you will have to fight every step of the way. [36]

Many judges have seemed incapable of accepting women lawyers. In Texas, one judge in the 1980s asked Nannette Dodge to face the courtroom and then said, "Ladies and gentlemen, can you believe that this pretty little thing is an assistant attorney general?" [37]

Watergate prosecutor Jill Wine Volner coined a name for this not uncommon behavior: "sexual trial tactics." Even during the Watergate hearings, wearying of the put-down "compliments" of H. R. Haldeman's lawyer, John J. Wilson, Volner told him that "if he didn't stop I'd have to lower myself to his level and respond in kind."

In 1982, trial lawyer Elizabeth C. Kaming had an entire panel of jurors excused because of repeated sexist remarks by the opposing counsel. In Nassau County Supreme Court, Judge Anthony Jordan frequently addressed lawyer Martha Coppleman as "little girl." [38]

Even in the mid-1980s, the chief prosecutor in a federal district court publicly stated, "When you're fighting a war against crime, you don't send a girl into the front lines." [39] It seems unlikely that he had ever heard of Elizabeth Holtzman, who had been elected and reelected as a hard-hitting district attorney in Brooklyn, New York.

A few good men stepped in to do something about this "special treatment" received by women attorneys. When Newark, New Jersey, judge Marilyn Loftus talked about the problem to Robert N. Wilentz, chief justice of the New Hampshire Supreme Court, he created a Task Force on Women in the Courts. The results of the Task Force study, issued in 1983, supported Loftus's concerns. Eighty-six percent of the lawyers surveyed stated that many lawyers made insulting jokes about women in the courtroom, and two-thirds said judges were also guilty of similar behavior. In his own courtroom, Justice Wilentz made it clear that he would not permit such behavior, but this did not solve the problem in thousands of other courts.

The National Organization of Women's Legal Defense Fund has financed the National Judicial Education Program to Promote Equality for Women and Men in the Courts. Teams of lawyers offer training session to judges on recognizing and dealing with "sexual trial tactics."

Despite many efforts to equalize the situation, women trial lawyers remain a small minority. In many places, women judges are still considered unusual. When Susie M. Sharp was appointed to the North Carolina state court, one journalist asked her if a rape case "wouldn't be too much for her delicate sensibilities." Like so many women judges before her, Sharp's answer was laced with angry wit: "In the first place, there could have been no rape had not a woman been present, and I consider it eminently fitting that one be in on the 'payoff,''' she retorted. [40] In January 1975 Sharp became chief justice of the court.

Some newspaper reporters pose questions to women judges that they would never have dared ask a male judge. Judge Birdie Amsterdam, asked by an interviewer how she could work in court without a ladies' room for judges, wittily responded, "I have learned how to steel myself so that I no longer require a bathroom between the hours of nine and five." [41]

Rude questions were nothing compared to the treatment received by Rose Elizabeth Bird in 1977, when she was named chief justice of the state of California. Opponents organized several unsuccessful recall campaigns to remove her from the bench, and as she drove around her state, she often saw bumper stickers reading "Bye Bye Birdie."

In reality, only a handful of women have been appointed or elected to high state courts, usually in places where the women's movement has remained active. In Madison, Wisconsin, a college town with a long history of peace movement and women's liberation activism, Judge Archie Simonson sentenced a teenage boy who attacked a young girl in a high school stairwell to probation, suggesting that the boy had reacted "normally" to provocative dress and a climate of sexual permissiveness. A movement formed that organized demonstrations and won a recall election. Maria Krueger, a public defender, ran successfully against Judge Simonson in 1977.

Rose Elizabeth Bird lost her bid to be reelected as chief justice of the California Supreme Court.

The National Association of Women Judges was founded in 1979 to deal with the problems faced by women on the bench. [42] Along with women attorneys, its members pressed for the appointment of women to higher-ranking federal judgeships and even for the Supreme Court to break its all-male tradition. Richard Nixon had made four Supreme Court appointments before he resigned in disgrace during the Watergate scandal in 1973. Although under pressure from the women's movement, he claimed that he could not find a qualified woman "good enough." Congresswoman Bella Abzug quipped that Nixon could not find one "bad enough." [43]

Although President Jimmy Carter appointed forty-one women to the federal bench, it barely made a dent. By the end of Carter's term, out of more than 20,000 appointed judgeships, only 900 were held by women. It was Carter's successor, Ronald Reagan, who appointed the first woman Supreme Court associate justice, Sandra Day O'Connor, in 1981!

President Reagan was fulfilling a pledge made during the 1980 election campaign, when many women opposed him because of his open opposition to the Equal Rights Amendment. To counter their resentment, he had pledged that he would fill "one of the first Supreme Court vacancies" with "the most qualified woman." During Senate confirmation hearings, feminist groups were reassured when O'Conner said that although she found abortion "offensive," she "felt obligated to recognize that others have different views." [44]

In 1989, Time magazine claimed that "women are riding a new wave of dominium." [45] In public places like the Supreme Court building, things certainly appeared to have changed. By 1986, over a third of the law clerks were women. Sixteen years earlier they had been a mere 3 percent. Women were no longer "rare birds" on the campuses of law schools either. At many universities they composed up to 40 percent of the law student body. But a closer look revealed some dismaying facts.

In 1991, Susan Faludi wrote a much publicized book providing evidence that "breathless reports about droves of female 'careerists' crashing the legal, medical, and other elite professions were inflated." [46] Most of the progress was made at the height of the women's movement, fifteen years earlier. Progress peaked in the early 1980s and "barely budged since," Faludi pointed out. Between 1972 and 1988, women had increased their share of professional jobs by only 5 percent, she claimed.

The "Equal Employment Opportunity File" of the Census Bureau was not released until 1993, and then only on CD-ROM. [47] The little publicized data more than back up Faludi's thesis. It revealed that less than one-third of all lawyers in the United States were women. (Male total, 564,332; female total, 182,745.)

Far fewer members of minority groups, male or female, had advanced during the "new wave of dominion." The Bureau of the Census categorizes racial/ethnic minorities in the professions according to their percentage of the population. The term underrepresented indicates that the percentage of a particular group in a professional category is less than its percentage of the population. The Hispanic and African American population groups each composes close to 12 percent of the total population, but only about 2.5 percent of the legal profession! After the initial push for equality in the 1960s and 1970s, the modest advances made by Latinos and African Americans actually declined in the late 1980s and 1990s! [48]

Latina women fared even worse than Latino men. Of almost 800,000 lawyers nationally, less than 17,000 are Latino, including less than 4,000 women. The situation was only slightly better for African American attorneys. There were 14,360 African American male attorneys in 1990 and 11,310 African American females. Since each group composes about 12 percent of the population, fair representation would mean that these numbers would have to double for both African Americans and Latinos. Instead they were slowly declining as economic hard times made it more difficult to attend college. "Asians and Pacific Islanders," no longer considered an underrepresented minority in the health professions and often touted as the "model minority," were underrepresented in the legal profession. [49]

Just about the same situation applies to judges. There were about 32,000 male judges and 7,400 female judges in 1990. Among these groups, 871 of the women and 1,407 of the men were African American; among Latinos only 298 females and 800 males held elected or appointed judicial posts. There are 74 Asian women and 206 Asian men on the bench.

Census data do not reveal the status of judges or law teachers. Full professors are counted along with instructors as "secondary school law teachers." It is well known that women almost always fill the lower-status ranks in both groups, but even if we assumed equal status for all, there were 3,158 males and 1,397 females in this broad category. White females held 1,291 of these posts, black females only 70, Hispanics only 23, and Asians 29.

Except in response to attacks on legal abortion, women have stopped marching, and the few gains they have made are rapidly eroding. Congress passed the Equal Pay Act in the early 1960s, but by the mid-1990s, women still earned less than 70 cents for every dollar earned by men, and the situation was worsening! [50]

Many ways have been found to "legally" pay women less for their "equal work." Women usually are hired in lower-paying departments of corporations, as communications, rather than finance, executives, for example. Even when women are partners in large law firms, they usually handle taxes or estates instead of being assigned to high-profile cases with large bonuses attached. The claim is often made that women are given less prestigious assignments because employers worry that they will leave their jobs to raise a family. But the Labor Department has reported that "within educational categories, men earn more than women at every age."

The economic policies of the Reagan and Bush administrations -- "Reaganomics" -- favored finance, insurance, and real estate moguls. The tycoons in these sectors were almost always men. As the dollar gap spread between the poor, the middle class, and the wealthy, the gap between men and women also widened. As one Harvard economist expressed it, "From '73 to '91 only the people at the top did extremely well -- and the people at the top were predominantly male."

In 1993, a Newsweek article declared:

It's still a statistical piece of cake being a white man, at least in comparison with being anything else. White males make up just 39.2 percent of the population, yet they account for 82.5 percent of the Forbes 400 (folks worth at least 265 million), 77 percent of Congress, 92 percent of state governors, 70 percent of tenured college faculty, almost 90 percent of daily-newspaper editors, 77 percent of TV news directors. [51]

No doubt, many women voted for Bill Clinton when he ran for president in 1992 because of his promises on women's rights as well as Hillary Rodham Clinton's well-known positions on feminist issues. As president, Clinton reversed many of the decisions of the Bush administration, including the Hyde amendment. With an administration once again friendly toward women's rights, more women were appointed to government jobs and judicial posts.

But the same problem faced high-ranking women as faced those in private jobs. Women were still considered the main marriage partner responsible for child care. In 1993 Clinton nominated Zoe Baird for attorney general. She lost the nomination when it was discovered that she had once hired an "undocumented" immigrant (without legal papers) as a live-in nanny. No man had ever been questioned on that issue. Kimba Wood's nomination for a federal district court judgeship was withdrawn on the same basis. Finally, Janet Reno, a single woman with no children, was confirmed as attorney general.

Some women lawyers have focused on the issue of women's special role in the legal profession. Catharine A. MacKinnon, a legal scholar and ardent feminist, has long fought for laws against sexual harassment and pornography. She is especially eager for women to realize that the few women who are appointed to high posts still have an obligation to remain involved with women's problems. When Rosalie Wahl and Mary Jeane Coyne were named as associate justices of the Minnesota Supreme Court in 1982, MacKinnon made a speech at an event honoring them.

There was a danger, MacKinnon warned, that people with no real interest in women's equality would point to a few women in positions of power and say, "She made it, why can't you?"

We are used as tokens, vaunted as exceptions, while every problem that we share is treated ... as a special case. So to those who say, "Any woman can," as if there is no such thing as discrimination, as if that were exceptional, I say this, and I say it as a woman: all women can't. And that will be true so long as those who do make it are the privileged few. Until all women can, none of us succeed as women, but as exceptions. [52]

MacKinnon went on to ask whether the two new state Supreme Court justices would "use the tools of law as women, for all women." She pointed out that "the definition of women in law and in life is not ours ... We are not allowed to be women on our own terms."

A decade later, Mona Harrington in a 1994 book on the role of women attorneys tried to answer the question, "How are women lawyers using the authority they have to advance the equality of women in general?" [53] Harrington interviewed over a hundred women lawyers of different ages. In 1985, Ronald Chester had worried that despite the advances of women lawyers in the 1980s, difficult economic times could cause "a return to the marginality" of bygone eras. [54] But Harrington discovered that Chester had missed another important issue. Many of those who did "make it" were unhappy and wanted to leave!

Harrington confirmed that the "authority structure" in the law profession had changed very little, with only about 10 percent of women lawyers working as federal and state judges, law partners, or tenured professors at high-ranking law schools. But she also discovered that Ivy League women graduates were finding it easier to land jobs in large law firms.

As more corporations had spread out over the world, many law firms serving them also became gigantic megafirms, with branch offices and thousands of lawyers. To avoid lawsuits and out of real need, these institutions soon had a 40 to 50 percent female share of new associates. For many women the financial temptation was irresistible. By 1990 a new associate made more than a new partner had made a decade earlier.

But new women associates found themselves in a male world ruled by competitiveness and overwork, where their performance was judged by "billable hours" (the hours of work the lawyers submit bills for). "Making partner" meant little recreation or time with their families. Many of the women lawyers had small children or wanted families. Some functioned like superwomen, trying to be perfect wives and mothers, while still competing with the male associates who had fewer home responsibilities.

A 1988 study and report by the American Bar Association Commission on Women in the Profession, chaired by Hilary Rodham Clinton, recommended "deep changes in the discriminatory and biased attitudes toward women in the male-defined professional culture." [55] The new corporate women professionals did not appreciate the dominant male value system they encountered there.

When the economic slump worsened in the early nineties, even more pressure was applied at law firms to produce, produce, produce. Many women resigned rather than fight back. They did not feel powerful enough to change the century-old rules that had been made by men. It was also clear to many women that the majority of their male co-workers still believed them incapable of maintaining their "objectivity and rising above emotions."

Many male lawyers claim that motherhood is the main stumbling block to career satisfaction for women attorneys, but the American Bar Association Journal reported that 95 percent of women lawyers return to work within a year after a child is born. Furthermore, women in public-sector jobs stay longer than men. The Journal conclusion was that women are more demanding of social purpose in their work, ... more critical of silly professional rituals, and less likely to take to a profession that is built on contention.

Women lawyers have often expressed a deep hatred for the atmosphere at big law firms, where they find "false socializing, tantrums, fraternity style shows of dedication, and murderous competition." And one woman lawyer has noted that "practicing law is antithetical to what most women are brought up to be comfortable with. It's cold, it's hierarchical, it's competitive. More than any other profession I can think of, it has the negative aspects of patriarchy. It runs too much on testosterone and a cultish reverence for aggressiveness." [56]

Many of the brightest and most imaginative of the women in Harrington's study, like their sisters in the 1960s and 1970s, decided to prepare for much lower-paying but more humane work situations. They quickly discovered that public defender law and other non-corporate jobs were looked down on as "the soft stuff," not scholarly or important.

This attitude has had a profound effect on faculty appointments. When colleges are willing and even eager to appoint women faculty members, they want women who have little interest in "the soft stuff." In 1990, only five women were among the sixty-two tenured law professors at Harvard. All but one were white.

An American Bar Association 1990 survey showed similar trends. Almost twice as many women as men were considering changing jobs within the next two years. Another poll questioned 600 female lawyers who had graduated from the classes of 1975 and 1976. When they were asked whether they would have chosen a career in law if they had known the realities, only a little more than half answered yes. [57]

Apparently the same issues that appalled women in law firms were affecting them in law school. On February 10, 1995, The New York Times ran an article with the headline, "Men Found to Do Better in Law School than Women." A University of Pennsylvania law school study had found that women were receiving lower grades than men, not only at that institution but at law schools around the nation. In the critical first year of law school, "men were three times as likely as women to be in the top tenth of the class," bringing them law review membership, summer jobs, and law clerkships. The study described the law school experience as "effectively hostile to women" and raised the question of "whether women will get ahead simply by imitating men." The researchers concluded that the few women who went to law school in earlier decades and performed so outstandingly were "an unusually determined group ... unfazed by discrimination, having experienced it earlier on."

Women law students sent angry letters to the Times. One pointed out that professors seldom called on female students and that since "grades are a combination of 'blind' exams and a discretionary 'class participation element,'" this had a profound effect on women's scores. The other letter writer, an NYU law student, pointed out that women "seem more willing to join activities that cater to their interests, or that prepare them for actual legal work, than to pursue grades and honors for their own sake.... It may just be we have better things to do." [58]

For some feminists in the 1990s, other problems loomed far larger. Many of the gains of all minorities had been rolled back. Poverty, homelessness, and even hunger had become urgent issues in the United States. One-third of all African Americans and many Latinos had "made it" into the different income layers of the "middle class," but drug addiction, violence, crumbling schools and hospitals, and new and sophisticated forms of racism plagued the inner cities.

Poverty had been increasingly feminized. A 1995 Census report found 46 percent of all African American children living in poverty -- three times the percentage of white children. Women and their children made up a larger proportion of the poor than at any other time in United States history.

Women were still ready to fight. They demonstrated that in the mid-1990s, when actions against abortion clinics escalated into fire-bombings and murders. Thousands of women showed up in Washington, D.C., to show their continued support of the right to choose. But some women believed that defensive responses were not enough. In 1995 a newly elected Republican majority in Congress was attempting to repeal affirmative action legislation. These women talked about the need for new social movements for the coming twenty-first century. A different kind of organizing effort that would join together all of the forces opposing poverty, racism, and sexism was required to counter attacks on their progress.

In such a movement, women in law could play a critical role if they remembered the opening statement at the Equity Club meeting of women lawyers more than a century earlier: "I believe that as Women Lawyers ... we must make a special effort ... for other women besides ourselves."

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