Washington Lawyer

Legends in the Law: Patricia M. Wald

(Appeared in Bar Report, April/May 1995)

Patricia M. Wald is currently a circuit judge on the United States Court of Appeals for the District of Columbia Circuit, where she has been on the bench for 17 years. From 1986-1991 she served as chief judge of what is frequently referred to as "the second most important court in the country."

A 1951 graduate of the Yale Law School, Wald was assistant attorney general for legislative affairs during the first three years of the Carter administration, and she has extensive experience in public interest law. She is married to Robert L. Wald, a partner with Nussbaum & Wald in Washington, D.C. They have five children. Although busy managing a full docket, Judge Wald graciously took the time to sit down with Bar Report and reflect on her extraordinary life in the law.

Bar Report: What motivated you to attend law school?
Patricia Wald: I think my primary motivation grew out of my experience growing up in a manufacturing town in northwestern Connecticut. Most of my family worked in the factories. I did too. While I was in college I worked in the factory and got involved in the labor movement. I decided to go to law school thinking that it would be a good way to play a role in the protection of working class people. Now, I don’t want to suggest that I had a clear vision of a future career path, but I did have this rather nonspecific idea that I could use the law as a means of bringing about reform—and the labor movement was the only reform movement I knew much about at that juncture of my life.

BR: Were there any women in your law school class?
PW: Yes, I entered the Yale Law School in 1948, and there were 10 or 11 women in my class. Harvard had not yet begun to admit women to law school, but Yale had been doing so for many years. In my class we had several women who were going to law school on the GI Bill. They had been WAVE commanders or WACs during World War II. So it was a zesty bunch. We more or less accepted the fact that we would be a minority, that we would not escape notice in class, and that we would always be asked to give the plaintiff’s testimony in rape moot courts.

BR: Were there any women on the faculty?
PW: No, none whatsoever. Looking back, I’d have to say we were naively unaggressive, in not thinking that the entire profession had to change for us to succeed in it. The Yale Law School was one big integrated complex, and the men lived in the big stone dormitories, but the women were required to live off campus in this dinky old house that was falling down near the railroad tracks. Every night for three years the Boston-Maine went roaring by my window at a quarter past twelve. But living in that house really wasn’t any great deprivation. It made the women a cohesive unit. By sticking together we managed to weather the storm. Overall, I found law school to be a good experience. I enjoyed the intellectual challenge and the camaraderie. I think that for the women in my class it wasn’t until we had to go out and find jobs that the cold winds of gender stereotyping and discrimination hit us.

BR: How did that manifest itself?
PW: There was an assumption that it would be very hard for a woman to get the jobs that men routinely got. For example, I went down to Wall Street and interviewed with some firms there. At one firm, I remember being told, "Gee, you’re a really good candidate. You’ve got a very impressive record. It’s too bad you didn’t come in last week because we hired a woman last week!" The message being that since they had already hired a woman it was going to be a long, long time before they hired another one, no matter what kind of qualifications a job applicant had. At another firm I was offered an associate’s position at a salary substantially less than one of my male friends received from the same firm. Both of us were officers on the Law Review and we had comparable grades. Even so, it was assumed that I should be very thankful for this reduced salary offer.

BR: Did you take the job?
PW: No. I was fortunate. I was offered a clerkship from a fine federal judge who was way ahead of his time in taking women law clerks—Judge Jerry Frank of the second circuit in New York. This was at a time when there weren’t many women law clerks. There was no other woman clerking on the second circuit when I was there, or even on the district court in the southern district of New York. Judge Frank went out of his way to give people a break when he thought they needed a break. He took highly qualified people as clerks, but they weren’t always the orthodox choice. He didn’t do things by the book.

BR: Can you recall any of the cases you worked on?
PW: Well, the year I there, Judge Frank was assigned the appeal on the Julius and Ethel Rosenberg case. As you may recall, they had been sentenced to death for their role in an espionage ring that was accused of passing atomic secrets to the Soviet Union.

BR: Was it tough to handle a capital case like that?
PW: It was serious business. The press was constantly referring to the fact that the Rosenbergs were Jewish, as was Judge Frank, as well as the judge who had sentenced them. That was a constant refrain. I think Judge Frank would have been very happy not to have been assigned the case, but once he received it he got down to work with a great deal of impartiality.

BR: What were your feelings about the case?
PW: Both Judge Frank and I felt that the conviction had to be affirmed on the basis of the evidence, but neither of us felt that the death sentence was warranted. That’s not because I’m opposed to capital punishment in all cases, but because there was enough conflicting evidence about the nature of the overall conspiracy. Many of the individuals involved turned state’s evidence and cut deals to save their skins. I thought the death sentence was too extreme.

In 1952 there was no appellate review of sentencing, but in writing the opinion that affirmed the conviction Judge Frank, in effect, told the Supreme Court that they could and ought to review the sentence in this case. Essentially, he was pleading with the Court to do so. But, as we know, that view did not prevail, and the Rosenbergs were executed in 1954. That was not a case that gave us any pleasure.

BR: During this time frame Thurgood Marshall was bringing a series of segregation cases up through the federal court system that eventually culminated in Brown v. Board. Did you make a connection between those cases and translate it to gender, so that you said to yourself, "Hey, those race discrimination cases are relevant to women"?
PW: No, not then. Of course in the ’60s we all had those thoughts once the women's movement began to generate steam. But at the time of Brown I did not equate gender and race. I had traveled through the South and had seen the rank discrimination that prevailed where the Jim Crow laws were in force. I thought that was an awful blot, an outrage.

The discrimination women faced was much more subtle. It wasn’t that we couldn’t drink at the public water fountain, attend the public school, or eat in a restaurant. We went almost everywhere we wanted to go and we ate almost anywhere we wanted to eat. There certainly was limiting stereotyped bias against women then—and even now. But the discrimination that blacks faced was a monstrous, visible denigration of an entire people that women were never subjected to.

BR: What did you do after you completed your clerkship with Judge Frank?
PW: I was an associate at Arnold & Porter here in Washington. It was a small firm then—twelve partners and three associates in a townhouse over on N Street. Thurman Arnold, Abe Fortas, and Paul Porter were all there, and it was a close-knit group. I was the only woman, but I never felt cut out or that I was treated like an oddity.

That was in was 1952-53 when Senator Joseph McCarthy was on his reckless rampage and HUAC was in business. There were several loyalty cases that came through the firm. I remember I did some work on the motion to dismiss the Owen Lattimore indictment. Lattimore was the Asian scholar indicted for being a "fellow traveler" whose indictment was ultimately dismissed by a courageous district judge, Luther Youngdahl. Although we had plenty of traditional clients, the loyalty cases gave us a sense of esprit d’corps, a sense of mission and fulfillment.

BR: Why did you leave the firm?
PW: I was eight months pregnant. I wanted to be with my husband, who was in the Navy and stationed with a JAG unit in Norfolk.

BR: Was the decision to leave difficult?
PW: No, it wasn’t difficult. There was no maternity leave as such, but the firm was very good about saying, "You can come back when you’re ready." I did go back to visit, but after our first child was a couple months old I realized I didn’t want to rush back to work. Over the course of the next six years, we had four more children.

BR: Did you enjoy being a mother?
PW: Yes, I really wanted to be a mother. I wanted to be the person who had responsibility for the children. I can’t say that every moment brought unmitigated joy, but being with the children when they were young was a priority well worth making. I’m glad I don’t have to look back and regret not having been there.

BR: When did you reenter the profession?
PW: When the youngest child started going to kindergarten so that all five of them were in school, I began working part-time in a series of jobs that allowed for a flexible schedule. I had a consultant’s contract with the Justice Department, and I worked on the Kerner Commission Report, the Report on the Causes and Prevention of Violence, on the President’s Commission on Crime in the District of Columbia, and I was codirector of the Ford Foundation’s Drug Abuse Research Project. Then in 1968 I joined Neighborhood Legal Services as a litigating attorney. That was when I began taking on full-time responsibilities again.

BR: Was Neighborhood Legal Services a new world for you?
PW: In some ways. It wasn’t as though I’d never seen poverty before. Working on the crime commission and the drug abuse project provided plenty of exposure to the problems of the inner cities. What was new was that I’d never had a sustained litigation experience. When I joined NLSP I was 40 years old, and I was working with very talented, enthusiastic young lawyers. From my point of view, they were kids. Because I hadn’t litigated before, they knew much more than I did. They were my supervisors and they were the people I turned to for guidance. There have been many times in my career when I had to learn to be humble, and that was one of them.

BR: Did you enjoy the work?
PW: Yes. We were the first wave of legal services litigators. There were issues that had been waiting for decades to be litigated, and the judicial climate here was receptive. That was before the D.C. Court Reorganization Act, so you’d begin at what was then the D.C. Court of General Sessions. The United States Court of Appeals for the D.C. Circuit had supervisory appellate jurisdiction over local law. So you could get a writ of certiorari over here for the important cases, where the chances of getting a sympathetic panel of judges to look at the problem seriously and write a decision that would be looked at throughout the country were enormous. Being on the cutting edge was thrilling. There were six of us working out of an office upstairs from a bail bondsman’s office on Fifth Street. It was a very electric atmosphere.

BR: Did the ten years you spent working in public interest law influence the perceptions you brought to the bench?
PW: Yes, I think my litigation experience was tremendously important. There are a lot of impressions, memories, and experiences from litigating cases that enter into my judging to make it a bit more concrete and down to earth. One tends to think in terms of real clients, real lawyers, and real situations, rather than in more abstract principles or policy formulations.

I also think that working on all those cases has made me more tolerant of the mistakes that lawyers make when they come before the court. Having made so many mistakes myself, it’s hard for me to scream at counsel and tell them how bad they are.

BR: You’ve also had political experience as assistant attorney general for legislative affairs in the Carter administration. Was that an important influence as well?
PW: Oh, yes. That was a burn-out job, but it provides a useful component in judging because we do so much interpretation of statutes. I don’t care how many books you read on the legislative process, there’s nothing like tracking a bunch of bills on the Hill to know where the bodies are buried. I’d have people calling at midnight to say, "Guess what they just added on to X bill." I picked up a lot from the experience.

BR: Were you pleased when President Carter selected you for the federal bench?
PW: I was thrilled. Ever since I clerked for Jerry Frank I thought this would be a great job.

BR: Twenty-five years passed from the time you clerked for Judge Frank to the time President Carter nominated you to sit on the federal bench. Did the courts change much in those 25 years?
PW: When I was in the second circuit Judge Frank lived in New Haven, and we would go down to New York City to Foley Square one week a month to hear oral arguments. We’d never have the briefs ahead of time. The judges went and listened to the oral arguments before they’d read the briefs, and the clerks didn’t listen to the oral arguments. We’d be busy reading the briefs and drafting memoranda, and the judges would come in and tell us about the oral arguments. That’s amazing for me to look back on. Now days we spend an enormous amount of time reading the briefs and the record to prepare ourselves for oral argument, and I wouldn’t dream of not having a clerk go the oral argument with me to take notes and pay a lot of attention to it.

Another difference is we didn’t have the administrative law cases that we have now. All we had basically was the ICC and the NLRB. Opinions were shorter and they were done faster because there wasn’t nearly the amount of detail in the record that we see today. Opinions were written in more of a 19th century fashion, with a judge sitting down alone and writing in longhand more or less from the Brow of Zeus. Today we have these complicated cases that require a much more structured process. We do a lot of preparation for oral argument, we write long bench memos that get passed around, and then we write much longer opinions that involve a lot of line editing among the judges. We balance and brake each other in a way that didn’t take place on the second circuit.

BR: Do you have any cases or opinions that your are most proud of?
PW: Well, I’m on my 700th—and those are just the printed opinions alone. I especially liked one case that was vacated not because it was overruled but because the agency finally came around and did the right thing. That was a farmworker justice case where the Department of Labor delayed putting toilet and drinking water regulations into effect for migrant workers in the field. This went on for ten or twelve years. Finally we said, "Enough is enough. Get it done." There was a petition for a rehearing en banc, but before that could be decided the agency went ahead and complied with the court order.

I’ve also written a lot of dissents that I’m proud of. But dissents are not the law. You always have a sad feeling when you write a dissent because it means you lost. But you write them because you have faith that maybe they will play out at some time in the future, and because of the integrity you owe to yourself. There are times when you need to stand up and say, "I can’t be associated with this point of view." That was certainly the way I felt in the gay midshipman case that dealt with gays in the military.

BR: Over the years a lot of strong personalities have sat on this court, including Robert Bork, Antonin Scalia, Clarence Thomas, and Kenneth Starr—to name but a few. When you have judges with strongly held convictions does it create friction?
PW: I would be kidding you if I said there wasn’t friction here. There’s always going to be friction when you have a group of strong personalities working together on issues that are important. This is not a laid back court. There are no shrinking violets here. People put forth their points of view very forthrightly, and when they conflict, they conflict. The best we can do is keep a lid of civility on our disagreements, and I think we do that pretty well. We all talk to each other and there aren’t any feuds or grudges.

BR: One case that received a lot of media attention recently was Moldea v. New York Times, in which the plaintiff alleged he’d been libeled in a review of his book. The outcome was confusing because you and Judge Edwards voted in favor of the plaintiff for a 2-1 ruling and then you both reversed yourselves. Can you explain what happened?
PW: That was quite a close case. Judge Edwards had the assignment and I thought his opinion was supportable and we made our ruling. Then we received an extremely vigorous petition for rehearing. The purpose of a petition for a rehearing is to draw the court’s attention to the things it didn’t do right. Upon looking carefully into it, Judge Edwards felt we’d made a mistake. I agreed with him and we changed the decision.

Believe it or not, we do grant a number of petitions for rehearing and we do change decisions every year. Because the press gives heavy coverage to press cases this was labeled "unprecedented"—even though it wasn’t unprecedented at all. Now when you reverse yourself in a highly publicized case like that you know you’re going to get a lot of flak—and that’s what we got.

BR: Does the criticism bother you?
PW: Not really. Nobody likes it. But the only time it gets to you is if you think you’ve done something wrong. The important thing is to get it right—even if that means admitting you made a mistake. That’s what we did in this case. I knew we were going to get pilloried, but we lasted it out, and we moved on. That’s what life tenure is all about.

BR: After the 1992 presidential election it was widely reported that you were at the top of President-elect Clinton’s short list for attorney general, but that you turned the job down. Why was that?
PW: I was never offered the post. That’s a detail people never seem to get straight. What happened was I was invited down to Little Rock for an interview. Even before I went down, I had serious doubts about whether I wanted to be attorney general if it was offered, and I expressed those doubts at the time. Then two days after my visit to Little Rock I called Warren Christopher and told him, "I think I should withdraw from consideration." That’s all there was to it. Nobody begged me to change my mind or reconsider or do any of that.

BR: Why weren’t you interested in becoming attorney general?
PW: A variety of reasons. It’s an intensely political job. Remember I was the assistant attorney general for legislative affairs for three years in the Carter administration, so I had an opportunity to watch Attorney General Bell at very close range. I didn’t want to go back to a job that was that political. Also, it came at an unfortunate time for me. I was within 18 months of having my retirement vested, and if I left I would have had to give all of that retirement up. If it had been a job that I desperately wanted, I might have been willing to make that sacrifice. But the attorney generalship wasn’t something I wanted desperately.

I have been told that I suffered some fallout from that decision. But life goes on. It doesn’t do any good to dwell on things that are over.

BR: As you look back on your 16 years on this court, has it been rewarding?
PW: Yes. Even if you don’t win all the time the issues are stimulating. I’m very grateful to have had an opportunity to serve here.