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BARRED FROM THE BAR -- A HISTORY OF WOMEN AND THE LEGAL PROFESSION |
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INTRODUCTION In 1994 and 1995, television audiences watched in fascination as Marcia Clark, Los Angeles deputy district attorney, argued forcefully and capably during the trial of celebrity O. J. Simpson, accused of a brutal double murder. Clark had served as prosecutor in a number of important cases, winning all of them. Although Simpson's so-called "dream team" of defense lawyers was all-male, no one seemed to think it odd that a woman was playing the lead role in presenting the prosecution's case. Few realized that until very recently, women lawyers and judges were rarely seen in courtrooms. Now women lawyers work as public defenders, law firm associates (sometimes partners), district attorneys, and in private practice. Two women, Sandra Day O'Connor and Ruth Bader Ginsburg, are associate justices of the highest court in the land, the United States Supreme Court. When Judge Ginsburg accepted President Bill Clinton's nomination on June 14, 1993, she thanked her mother and remembered the past deprivations of women: "I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons," she told the assembled reporters. [1] Most of those who heard the speech believed Judge Ginsburg was talking about long-gone attitudes. Even some who knew about the struggles by women to gain entry into the legal profession thought the battle had finally been won. Over a hundred years, after all, had passed since Myra Bradwell's application for a lawyer's license had been turned down by the Illinois Supreme Court: When the Legislature gave to this court the power of granting licenses to practice law, it was not with the slightest expectation that this privilege would be extended equally to men and women.... This we are not yet prepared to hold. [2] Bradwell had passed the bar examination with flying colors, was the publisher of a leading legal newspaper, the wife of a prominent Cook County judge, and had many friends in high places. If she could be prevented from practicing law, there seemed no possibility that others could succeed. The judges had made it clear that Bradwell was not their personal target. They believed that barring women from law practice should be a universal rule, and expressed concern over whether "the hot strifes of the Bar, in the presence of the public ... would not tend to destroy the deference and delicacy with which it is the pride of our ruder sex to treat her." [3] Bradwell appealed to the United States Supreme Court in what has been called the first sex discrimination case to be heard by the highest court in the land (Bradwell v. Illinois, 1873). It delayed its negative decision for more than three years. Meanwhile, Bradwell's action provoked fresh outbursts of male indignation over women's attempt to enter the professions. At a conference of the American Medical Association, for example, Dr. Alfred Stille took the floor to give a passionate speech against all women who dared to knock at the doors of the all-male medical and legal worlds. "The women question in relation to medicine," he said, is only one of the forms in which the pestis muliebris [female plague] vexes the world. In other shapes it attacks the bar, wriggles into the jury box and clearly means to mount upon the bench.... [4] Stille's fears must have seemed groundless to many. The Bradwell decision by the Illinois Supreme Court should have gone a long way toward allaying the fears of those who wanted to keep women "in their place." Women had few legal rights, not even the right to vote. The Fifteenth Amendment to the United States Constitution, ratified in 1866, allowed African-American males to vote; women, black or white, were not included in the new suffrage amendment. Those who tried to break down the barriers to equality were subjected to ridicule and rejection from every quarter. After delaying their decision until 1873, not only did seven of the eight Supreme Court justices uphold the Illinois Supreme Court decision, but in his written opinion Justice Joseph Bradley went even further than his Illinois colleagues: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. ... The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.... [5] Most judges, the watchdogs of the legal profession, agreed wholeheartedly with Justice Bradley's position and guarded the doors to their forbidden realm with ardor. Not until a century later, in the 1970s, would Stille's nightmare vision of women lawyers, judges, and jurists have even the slightest basis in reality. Under Myra Bradwell's leadership, a few brave women continued to "attack the bar" and finally won the right to practice law. But they were scarcely able to earn a living at their hard-won profession. It wasn't until the 1970s, ftfty years after women were finally permitted to vote, that the roadblocks to the legal profession appeared finally to be crumbling. It seemed that way, but there were also many signs that the ghosts of Supreme Court Justice Bradley and others of his ilk still haunted the world of law. On October 3, 1994, The New York Times featured an article describing Marcia Clark's "transformation" after a mock jury in Phoenix, Arizona, in August "gave Ms. Clark a stinging rebuke." Their critique had nothing to do with her obvious knowledge and legal talents. Apparently Clark had not shown "the natural and proper timidity and delicacy which belongs to the female sex." The article reported that Ms. Clark "has clearly been told to get with the program: warmer, fuzzier, more juror friendly." To accomplish this, Clark apparently headed for the nearest beauty parlor and clothing store. She emerged with "shorter, better-kept hair that framed her face, warmer and lighter-colored dresses with softer fabrics, more jewelry." When she met with the press, "magically, her voice had warmed up. She smiled often, and incandescently. She laughed, even giggled, repeatedly. She rolled her eyes, cocked her head and shrugged her shoulders." (Italics added) Instead of terse "no comments," Clark spoke about her harried new life, her shopping trips, her children. According to the Times: a jury consultant from Miami, said domestic themes like grocery shopping and children were crucial tools in the makeover, and motherization, of Marcia Clark. Since both male and female jurors are put off by tough women lawyers, ... the old Marcia Clark was in "a no-woman's land." [6] Imagine the jokes and consternation if Robert L. Shapiro, Simpson's chief defense attorney, had been advised to giggle repeatedly, roll his eyes, cock his head, and shrug his shoulders, or had shown up at a press conference in soft silk shirts with a fluffy new toupee framing his face! But according to the news media, the one comment Shapiro made when he was asked what he thought of his opposing counsel was "Great legs!" There are many other signs, too, that the fight for women's equality is far from over. The victories that started to occur in the 1970s were rolled back sharply in the 1980s (see Chapter Six). The "no-woman's land" of the "old Marcia Clark" still existed, ready to drag women back to their "paramount destiny" of "the noble and benign offices of wife and mother," as per "the law of the Creator," rather than permit them to continue to "attack the bar" and "mount upon the bench." If these fears were realistic, there would be only two choices for women: they could give up and go home, or they could become an army of thousands of modern-day Myra Bradwells taking on the most powerful force in the nation-the law.
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