Q&A With Marlene Trestman, Biographer of the Audacious Labor Lawyer Bessie Margolin

By Tracy Schorn

May 7, 2018

D.C. Bar member Marlene Trestman is the author of the 2016 book Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin, reviewed in the March issue of Washington Lawyer. Trestman recently sat down with the D.C. Bar for a two-part interview to discuss Margolin’s life. In part one, Trestman talks about Margolin’s early life, education, passing the Bar in the 1920s as a woman, and the Fair Labor Standards Act.

Bessie Margolin
Photo Credit: From the personal papers of Bessie MargolinD.C. Bar: You had a personal connection to Bessie Margolin. What made you want to tackle this woman’s biography and her huge life?

Trestman: We developed a relationship borne out of our common childhood experiences. She grew up in a New Orleans orphanage and I was in foster care, supervised by the agency that succeeded the orphanage. We were introduced because of that relationship.

Once I realized just what an extraordinary person she was after she died in 1996, I realized there was no one who was going to write about her.

I was practicing law full time in the Maryland Attorney General’s Office, [and raising] small children, and I figured I would do an appropriate thing: nominate her to the Jewish Women’s Archive [and] to the Supreme Court Historical Society, institutions that had publications to whom I could just say, “Hey, she’s great! Write about her.” Everyone welcomed hearing about her. Some knew bits, but no one knew much. And they all said, “We’d love to know more about her, but you’ll have to do it.”

It wasn’t until about 2005 when I knew no one else was going to do it. I had started to invoke her when I would speak publicly about my own life, or [on behalf of] particular philanthropic agencies . . . I figured I would just write an article, something small, and it sort of took off. That was how it got started.

D.C. Bar: Can you tell us a bit about Margolin’s early life?

Trestman: She began with great disadvantages against her. She was born in Brownsville, an immigrant neighborhood in Brooklyn, New York, in 1909 to Russian-Jewish immigrant parents. She was the first American-born child that they had.

To escape the tough and crowded conditions in New York, the family moved to Memphis, Tennessee, where the mom, after giving birth to Bessie’s younger brother, died and left Bessie’s father alone to care for three very young children.

A Memphis rabbi learned about the Margolins' plight and he recommended the children go to a well-regarded orphanage in New Orleans. So, in 1913, Bessie, at age four, with her siblings, entered the Jewish Orphans’ Home in New Orleans.

There, she was really able to learn powerful lessons in social justice. It was modeled daily by rabbis who would speak about very progressive notions of not only giving to children like those in the orphanage, but also seeking out the root causes for their dependency, conditions in the workplace, amazingly enough. I like to think she listened and that that might have guided her later career.

D.C. Bar: How did she distinguish herself that she got a place at the prestigious Isidore Newman School?

Trestman: The Jewish community in New Orleans had become rather prosperous and well socially acclimated. In 1904 a Jewish philanthropist, Isidore Newman, gave money to the orphanage to found its own training school. Since its opening, the school was available to children from the most prosperous families of New Orleans of any religion. (Forget race — it was 1904 New Orleans.) But the orphans were enrolled there with children of the most prosperous families, who paid tuition.

Bessie, who was academically inclined, loved to write and debate and thrived in this co-ed environment where she was able to compete against boys and stand her ground. She was the president of the Debate Club, the Girls Student Council, valedictorian, and won a coveted scholarship to Newcomb College, which was then Tulane’s coordinate college for women.

The home put her in a place where she could prove herself as a self-confident and competitive young woman.

That was a true gift — to have these kids see that wealth was not an impediment to academic performance.

D.C. Bar: At what point did Margolin know she wanted to be a lawyer? What set her on that path?

Trestman: She always had a penchant for debate. At the earliest, she was interested in becoming a teacher — a law professor, which in those days was a harder route for women lawyers to achieve than even a law firm career.

Bessie was quite audacious, and long before there was a notorious RBG, as Justice Ginsberg is most affectionately known, there was an audacious Bessie Margolin. And one of the most audacious things she did as an undergraduate at Newcomb, in this all-women environment, was decide that she wanted to go to law school, something no other girl from the orphanage had ever done.

She saw herself on equal footing with the men in her Newman class who had long been going to law school, and the few women who came from quite prosperous families who had done so.

This was in 1927. She was among the top 10 in her class and was chosen for Tulane’s liberal arts program, which was then closed to women. Tulane had admitted women sporadically since the late 1880s. But there were no women when Bessie set foot on Tulane Law School’s campus.

D.C. Bar: How did she get to Yale Law School?

Trestman: She endeared herself to Tulane Law School’s Dean, Rufus Harris. It was 1930. This was tough times in terms of getting a job. She was second in her law school class. She was civil law editor of Tulane’s newly refurbished law review.

Tulane Law School’s dean was so impressed with her and wanted her to succeed. He was a Yale Law graduate. He thought there might be a place for her at Yale Law School. He personally wrote to the dean, Charles Clark, who later became a federal judge, and asked that Yale consider Bessie for either a job as a research assistant or, preferably, a fellowship that would allow her to be in graduate school for law.

Clark refused to consider Bessie for the fellowship because he feared it would encourage her to pursue a job teaching law, which did not exist for a woman and wouldn’t for decades to come. But he agreed that she was certainly worthy of a job, and she was offered a position, which she took, as a research assistant to a highly regarded comparative law professor, Ernest Lorenzen.

While she was there, she again proved herself. She was pushed by an advisor, William O. Douglas, the future Supreme Court justice, who was then a professor at Yale. He and Lorenzen convinced Clark that she was worthy of a fellowship, and Bessie became the first woman ever awarded Yale’s Sterling Fellowship for Graduate Studies. That’s how she got a JSD — a Doctor of Juridical Science, essentially the equivalent of a Ph.D. It’s the terminal degree in law — I didn’t even realize there was a terminal degree in law — and she got one.

Going to Yale was huge for her in terms of making connections with the brilliant lawyers who were there. Not the least of which were Jerome Frank, who helped her get a summer job, [and] William O. Douglas, before whom she would later argue all 24 of her Supreme Court arguments. It really put her on a path . . . for elite legal practice.

D.C. Bar: Margolin is obviously this super overachieving woman. Yet graduating with a fellowship from Yale Law School in 1933, she still was essentially unemployable?

Trestman: It’s true. Bessie had a couple of strikes against her. She was a woman graduating . . . with a Yale law degree in 1933. She was also Jewish, which made it that much harder for the Wall Street law firms. And she was from the South, which I’m sure added some burden in terms of a job in a prestigious Wall Street firm.

D.C. Bar: So, she has discrimination to thank for her extraordinary career in government service?

Trestman: Yes. One of the things that brought Bessie to Washington was a temporary job. It was the best that she could do when she was graduating from Yale in 1933, with these Ivy League credentials, having studied under William O. Douglas.

The best offer she got [from] a law firm was as a librarian. And Bessie was not going to have any of that. She got a job for the summer of 1933 with noted suffragist Doris Stevens. They were looking for a bilingual legal scholar, [for] which Bessie fit the bill, although she knew French and English and sort of bluffed her way through Spanish, which is incredible.

Doris Stevens was then looking to use international law to promote women’s rights. It wasn’t moving fast enough in the United States, by the methods that had brought women the vote, to get equal rights more generally. So, Doris took an international view, looking to Latin American countries where in the law there was discrimination. Things like whether a mother could pass her nationality to her children if the children were born elsewhere.

Bessie spent that summer in the Library of Congress compiling all of the laws of Latin American countries that discriminated against women. What’s so fascinating about that brief summer job was that she wrote to William O. Douglas, still her mentor at Yale, that it was deadly dull. That Ms. Stevens, as wonderful as she was, was scraping together on a shoestring, this cause. She wrote something I think is terrific, which was [that] she just wasn’t cut out for this kind of feminism. So, these seeds of feminism, and actually using her talents to improve women generally — in the law and elsewhere — would just sit until the 1960s.

Being in Washington, Bessie was there as the New Deal was blossoming. Bessie managed to get a job at the Tennessee Valley Authority, which Congress had just created, to carry out FDR’s New Deal vision of supplying electricity to the Tennessee Valley’s most impoverished residents. She was there for six years, where Bessie cut her teeth on learning how a case goes from trial to the Supreme Court on constitutional issues. It was a serendipitous and wonderful training ground, where she was the only woman [among] the most brilliant legal minds in the country at the time.

D.C. Bar: How did Margolin get involved with the Fair Labor Standards Act?

Trestman: Bessie was credited with materially shaping the briefs that convinced the Supreme Court to uphold its first New Deal agency at the Supreme Court. When those two cases were resolved by 1938, Bessie was ready to move on. There was nothing that the TVA would offer in terms of legal experience [that] would compare with the groundbreaking New Deal constitutional law that she had been working on.

There was another great challenge awaiting her: The Fair Labor Standards Act, at the Labor Department, had been enacted. Frances Perkins, the first woman cabinet secretary, was ready to put teeth into the new law.

Bessie took a lateral move from the TVA to the Labor Department, and was there as the law was challenged on every facet, from the most rudimentary issues of how litigants could obtain service on the Labor Department if they were suing the government [to] issues involving the first time the federal government invoked Commerce Clause powers to prohibit child labor and to mandate a minimum wage and overtime.

That’s how Bessie came into the labor laws and the Fair Labor Standards Act. It was the New Deal, a new law, and she was drawn to the social justice of making sure that people were paid a full wage for an honest day’s work.

Next, Trestman talks about Margolin’s work drafting the rules for the Nazi war crimes trials at Nuremberg and championing the Equal Pay Act of 1963. Part two of this interview will be available on May 14.