Washington Lawyer

Legends in the Law: Eleanor Holmes Norton

(Appeared in Bar Report, June/July 1997)

A nationally recognized civil rights leader who is currently serving her fourth term in the U.S. House of Representatives, Congresswoman Eleanor Holmes Norton is a fourth-generation Washingtonian who was educated in the District of Columbia’s public schools, received an undergraduate degree from Antioch College, and simultaneously earned a law degree and Masters’ in America Studies at Yale. After a clerkship with Judge A. Leon Higginbotham of the U.S. District Court, Norton was an attorney for the American Civil Liberties Union in New York and chair of the New York Commission on Human Rights before her appointment by President Carter as chair of the Equal Employment Opportunity Commission. A professor at the Georgetown University Law Center when she ran for her first term in Congress in 1990, Norton is currently co-chair of the Congressional Women’s Caucus and a member of the Executive Committee of the Democratic Study Group. A former member of the D.C. Bar Board of Governors who has also served on the boards of three Fortune 500 companies and the Rockefeller Foundation, Norton has been awarded Yale Law School’s Citation of Merit as Outstanding Alumnus and some 60 honorary degrees.

Bar Report: What was Washington like when you were growing up?
Eleanor Holmes Norton: It was a narrow, Southern, segregated small town—segregated in every sense of the word. As a child in the city I went to segregated schools. They were integrated only in ’54, and I was sitting in a segregated school when the decision came down. I remember the public address system coming on and the principal who is still living, Mr. Charles Lofton, announcing that the Supreme Court [in Brown v. Board of Education] had just declared that schools such as ours were unconstitutional, that "separate but equal" was no longer the law of the land. It was a moving moment at Dunbar High School because some our teachers had Ph.D.s but had limited places in which to use them, so they had spent a lifetime teaching children in segregated schools.

This was a very unsophisticated town—for whites, blacks, and everybody else. The federal government was not the juggernaut it was to become, creating a whole region with prosperous jobs that came out of the federal government. The experience in Washington made me want to fly and see what the real world was like. I regarded Washington as small town, a hick town, a city without restaurants, a city without theater, without culture. That’s not the Washington of today, a cosmopolitan city at the forefront of art and culture, a city with many problems—but that’s not one of them.

BR: When did you get involved in the civil rights movement?
EHN: The civil rights movement didn’t begin in earnest until after the Brown decision. I was very frustrated that there was no movement. I grew up in very politically conscious household with a father and a mother who were well-educated, politically sophisticated, sophisticated on race. My mother was a schoolteacher. My father trained in the law but worked for the D.C. government, not as a lawyer. I always felt, in part because of the kind of household and the kinds of parents I had, that the civil rights movement was late in coming and I was ready for activism before it happened. When I was around 12 year old I remember when Mary Church Terrell picketed Hecht’s department store because you could use a charge card but you couldn’t go to the bathroom there. That’s what I thought the movement was all about. When the civil rights movement broke out, all I could say was "What took you so long?"

BR: How did you wind up at Antioch College in Yellow Springs, Ohio?
EHN: I fell in love with the idea of Antioch, but in fact I was confused. The National Scholarship Service and Fund for Negro Students (NSSFNS), funded by Ford Foundation, apparently discovered in the ’40s and ’50s that almost no black students went to first-rate integrated schools. They set up an organization whose job it was to go to high schools in the United States where people were preparing for college. They descended on Dunbar because Dunbar had a record of sending 90-some-percent of its youngsters to college, to the best schools all over the country. The problem with the NSSFNS was that they gave me too much. They gave me information on schools all over the map—Ivy League schools, small schools in the Midwest, large state-supported schools—but didn’t show me how to make a choice.

What it boiled down to ultimately was that one of my classmates had a sister who went to Antioch. I was intrigued by the notion of Antioch’s work/study program largely because it enabled you to go all around the country. Antioch basically produced Ph.D.s; it was a very egg-headed school that nevertheless let you see the world while you were in school. I went out there with my parents and the parents of my friend when they were going out to visit their older daughter and I fell in love with it. It was a very Bohemian campus, New York, ultra-sophisticated, very political. I said, "This is it!" and I never regretted it. Whatever sophistication my father imbibed in me, whatever sense of the intellect, of cosmopolitanism, of principled politics, whatever came out of my own household but was surrounded by the segregation of small-town Washington blossomed as it could not have done in most institutions in the United States. It was one of the few schools that wasn’t mired in McCarthyism but beat back the other way and stood up for academic freedom.

BR: Did you do much civil rights work at Antioch?
EHN: Yes. We drove all night from Antioch to come back to the 1957 march on Washington. Most people don’t even know what the ’57 march on Washington was because it was ministers who brought congregations up to the monument grounds. Harry Belafonte, Sidney Poitier, Adam Clayton Powell Jr. were there plus NAACP chapters from the South, church congregations from the South, and a few students from socially conscious campuses like Antioch. I was also at Antioch in when the sit-ins broke out in 1960. We said we’ve got to find some place segregated, and we found some place in Xenia, Ohio, not far from Yellow Springs. But they heard we were coming and they integrated before we got there.

BR: Did the civil rights movement influence your decision to go to law school?
EHN: Absolutely. I was chagrined that there were virtually no black lawyers and that there were very few to handle cases of civil rights, only the Legal Defense Fund, the NAACP, Howard University, a few scattered people. Title VII, which I was later to administer, helped create a whole civil rights bar because you could collect lawyers’ fees. But in the South they hardly had any lawyers that they could depend upon. They had to send lawyers down from New York. If you were in law school when I was—I graduated in 1964—that was the time to become a civil rights lawyer because there was a real need. It wasn’t something that you just might want to be.

When I was at Yale Law School, I did something that never would have happened if I hadn’t gone to Antioch. I have a master’s in American Studies which I got simultaneously with my law degree. Why? For no reason except that the culture out of which I came was Antioch where people didn’t go to law school or medical school: they were trade schools. Two of us in my class went to law school, both to Yale; two or three went to medical school. Everybody else went to graduate school. I wanted to be a lawyer because I wanted to be a civil rights lawyer. But the life of the intellect was always the life I wanted. I chose Yale in no small part because John Morton Blum and C. Vann Woodward were in the Yale history department, not for the law school. Of course Yale was the great social realism school and I didn’t want to go anyplace else. I think I’m fortunate because youngsters choose schools for all kinds of reasons that have nothing to do with anything, and I lucked out in terms of my own personal development.

BR: What was your first job out of law school?
EHN: Clerking for Judge A. Leon Higginbotham who was then in the U.S. District Court Philadelphia. It was another one of the more fortunate circumstances in my life because here was a great judge just starting out his career—I think I may have been his first law clerk—who taught me great principles. He was a man of enormous intellect and almost unmatched ability as a mentor who went on to mentor hundreds of students because he taught history and law at the University of Pennsylvania, and of course he had his clerks. Had there been Democrats in during the 1980s, there’s no question in my mind that A. Leon Higginbotham would have been on the Supreme Court.

BR: After you went to work for the ACLU in New York in 1965, I understand you won a Supreme Court case on behalf of the white racist National States Right Party.
EHN: I defended the First Amendment, and you seldom get to defend the First Amendment by defending people you like because they let them talk. You don’t know whether the First Amendment is alive and well until it is tested by people with despicable ideas. And I loved the idea of looking a racist in the face—remember this was a time when racism was much more alive and well than it is today—and saying, "I am your lawyer, sir, what are you going to do about that?" I got to argue before the Supreme Court in the National States Rights case. I also defended George Wallace in New York when Mayor John Lindsay denied him the use of Shea Stadium. That was an easy case—it was a public facility, it was during the Presidential campaign—and Lindsay must have known it because he was a smart lawyer. It must have been for political reasons. He then asked me to become his Human Rights Commissioner, and I did that for five years.

BR: What did you do as Human Rights Commissioner?
EHN: I keep saying every job was a glorious job, and the Human Rights Commissioner in the early ’70s really was. There was no women’s rights movement; women didn’t file complaints so I went around and got women to understand that civil rights meant women’s rights. I held the first extensive hearings on women’s rights. It was made into a book [Sex Discrimination and the Law: Causes and Remedies, Little Brown, 1975], and it had all the main feminists to come and kind of exposed the notion of what women’s rights was all about.

We did affirmative action to a fare-thee-well, helped create the idea of affirmative action and how to do it without running into reverse discrimination problems. We never had those problems. Even though we were doing very strong affirmative action in a city where Jewish organizations were headquartered, we had no problem with them ever because of the way in which we did affirmative action, with goals and timetables so as not to put other people’s rights in jeopardy.

My favorite program, one that’s perhaps the least known, was called Neighborhood Stabilization. In white ethnic neighborhoods in Brooklyn and Queens, blockbusters would come in and say "The Negroes are coming! The Negroes are coming! Get out of town! Sell your house cheap!" We got a blockbusting law put in and fortified it with a stabilization program where we’d go into white neighborhoods and say, "We have a blockbusting law to keep them from driving your property values down, but if you pick up and leave the first time you see a black it will be your own undoing." Meanwhile, we formed block clubs, introduced whites to the first blacks who moved into any neighborhood who were usually people with a higher income level and education that the whites who lived there. When we went around New York talking about the stabilization program, we had neighborhoods from the Bronx and Queens and Brooklyn—solid white ethnic neighborhoods with no civil rights history except, perhaps, bad history—who were trying to get into the stabilization program. I ran it for about two years, then I came back home so I never got to see it to its end, but it was a most gratifying experience.

BR: How did you like living in New York?
EHN: I loved New York; that was my kind of place. I loved everything about it. I loved the dirt. I loved Harlem where we lived and bought a brownstone. I loved everything people complained about. I said, "That’s what you have to put up with to get New York. You don’t get New York for free." I loved the multiethnic quality of it, that there were Italian faces, Irish faces, Slavian faces. When I came back home to Washington, I thought, "There’s something very different about this. What is different?" After a couple of weeks I figured out there were only black and white faces here. I’m a native Washingtonian who loves the soil of the District, but I grew to love New York and the New York spirit. New Yorkers know they are somebody special. I’d love to see the New York spirit here.

BR: What did you accomplish at the Equal Employment Opportunity Commission?
EHN: The EEOC was kind of natural progression from the New York Commission where they had had a big backlog. I learned how to get rid of backlogs, how to do affirmative action. When President Carter appointed me I came here because the EEOC had essentially the same problems. I was able to whittle down the backlog very substantially and to reform the agency. Then came Reagan and the rest is not history.

BR: Why did you decide to run for Congress in 1990?
EHN: Never had I thought of running for office. I regarded myself as militant, somebody who’s supposed to be throwing rocks from the outside. But, frankly, by that time I was on the boards of three Fortune 500 companies. I was going all over the country speaking on public policy issues. Folks were starting to say, "You’re a native Washingtonian. You’re always talking about public policy. Why don’t you go to Congress and talk about it?"

It took me a long time to warm to the idea finally, and I’m glad I did. I’m having lots of fun—even with all the problems of the District. Maybe because of all the problems of the District. It’s the kind of challenge that makes you know every day counts. If you represent the average district in the Congress, it’s got problems but they’re problems that were there before you, will be there after, and aren’t very serious anyway. You’re not going see a lot of change because there’s not a lot of change to be made.

BR: How did you get manage to establish the Judicial Nominating Commission?
EHN: For more than 200 years, since its founding, the District never has directly chosen its U.S. attorney or its federal judges. Virginians directly choose it because it’s chosen by the senators. Marylanders choose it because Barbara Mikulski chooses it, because Sarbanes chooses it. I went to Clinton and said, "I want to choose it." He gave me senatorial courtesy straight and pure, and I choose it just as much as they choose it. But I believe the only principled way to do that is to use a commission, so I have appointed a 17-member commission consisting of lawyers and laymen who have given me a prize set of judges. I’ve appointed five on the bench, one has just been confirmed, two are pending, and we’re about to choose a replacement for Judge [Charles R.] Richey. That means nine of the judges—all D.C. residents—shall have been appointed by the commission, and I’m sure everyone will tell you they are an extraordinary bunch. There was a backlog of talent after 12 years of Republicans, and I tapped right into it.

BR: What other accomplishments in Congress are you proud of?
EHN: Getting a vote on statehood in 1993. Not because I expected to get statehood but for the first time in 200 years there was a full-fledged House debate on the status of the District of Columbia. We got 60 percent of the Democrats, which is quite extraordinary. What I wanted to use it for was to move us to the next step of home rule. As fate would have it, a few months after that statehood vote it was revealed that the District was running out of money. The District now doesn’t qualify for statehood because one of the prerequisites is solvency.

BR: What do you see as the District’s biggest problems?
EHN: The District’s biggest problem now is one problem that divides itself in half; one is governmental, one demographic. The governmental problem is the need for top-to-bottom reinvention of the District government and its finances. The second is the need for policies to stem the flight of middle-income people, which will make this city a ghost town if we continue the way we are going. No amount of saving of the D.C. government will correct that problem, and it is a lethal problem because we are not part of a state. If they go, you can’t recycle money back from the state. We can’t do a commuter tax. When they’re gone, your life is gone because life for a stateless city is taxpayers.

I have a bill in for tax reform, but beyond that people need to regain confidence in the District government and that’s not happening fast enough. We are only one of several jurisdictions to become insolvent, but Philadelphia, New York, Cleveland all came back faster, in part because their states helped more and in part because their control boards figured it out quicker and went at it harder with less antagonism.

BR: Has the Bar been helpful?
EHN: The Bar deserves a lot of credit for the pro bono work it has done in the District. But I believe, frankly, that the business community, in which the Bar must be included, has not done as well by the District as have the business communities of New York and Cleveland and Philadelphia. They were more proactive. Making sure Abe Pollin got here was a major achievement that belongs largely to the business community. So is the convention center which the tourist industry is mainly paying for. These are mammoth contributions. But in general the District government, partly through its own fault but partly through the fault of the Bar and the business community, has somehow not drawn the kind of attention it should. We’ve got such skilled, highly professional residents—people who know how to make the world go around—that somehow I would expect those people to marry up with the District government and straighten it out in far shorter order. One, the District hasn’t been as open to it as it should. And secondly, I don’t think the business community and the Bar have been proactive enough here. They’ve done good work, but when the capital of the United States goes down, you of expect everybody to kind of go into an emergency energy level and I don’t quite see that energy level.

BR: Why do still teach a course at Georgetown?
EHN: I have to trace back to my parents and Antioch to why I teach a course at Georgetown and remain a tenured professor of law. There is absolutely no reason for it, except that I would feel incomplete just being in a trade, even if this trade is called Congress now. Teaching law keeps me involved in the intellectual life of the academy.

But it’s impossible for me to teach in the normal way, although teaching is the one thing you’re allowed to do under the House rules. What I do is teach a semester course all year long on a Monday every other week when Congress is not supposed to be in session. The course is called Lawmaking and Statutory Construction, a seminar I’ve constructed out of my experiences as a law professor interested in traditional statutory construction, an administrator who had to apply laws as chairman of the EEOC, and a lawmaker who is fascinated with how our work in Congress leaves judges to parse what we say as if it were poetry and come out with totally different interpretations of the same language. This, I think, yields enormously excessive litigation that has in turn yielded to hatred of the law by some Americans who believe we in the law are responsible for over-regulation, for playing word games. The seminar is absolutely fascinating. Essentially we’re trying to look at separation of powers and see how much conversation across the barriers is possible under the constitution; we’ve found there’s a great deal more than is ordinarily utilized. Essentially the goal is find a way to enhance communication across the lines of the three branches of government so they understand each other better without recourse to formal processes that cost money, bring frustration, and often yield no definitive answer.

BR: How would you characterize the state of the legal profession?
EHN: Law is going through a transformation. The country has always been over-lawyered, but we probably have done it this time. I am able to hire good law students at jobs that lawyers never used to do because there are so many people in the profession and there’s no more room for them. The profession itself cannot accommodate fine students as lawyers, as partners, as it could have even 10 years ago, certainly 20 years ago. As law becomes a business with more in common with ordinary run-of-the-mill business, it loses what made it attractive for some. Law schools do not have access to the same quality of student across the board that they did. An even deeper kind of transformation is occurring in medicine because medicine has lost control of its profession. Now insurers decide the basic questions, which frustrates many doctors. Lawyers don’t serve the public in the same way, so we are not as vulnerable in that way. But lawyers ought to look closely at what has happened to the medical profession: It will never be the same.