Today marks a grand accomplishment for the class of 1993. The graduating students here have survived a rigorous program, one with which I have some acquaintance, having several times attended courses for federal judges superintended by Dean Manne. I am pleased that Dean Manne asked me to take part in this celebration, and would like to remark, particularly, on an exhilarating change I have witnessed since my own law school graduation day: the entrance into the legal profession of many sisters, alongside brothers in law.
Women at George Mason University School of Law compose over forty percent both of the graduating class, and of the entire student body. I anticipate that, before very long, by dint of their ability, courage, and staying power, women will appear in numbers as well on George Mason’s teaching roster. The progress thus far made toward fuller utilization of human talent is cause for applause, and prompts hope for the future, all the more so when one recalls not yet ancient days. My law school class in the late 1950s numbered over 400; the class included one black student, and fewer than ten women. At a welcoming party for the women, the Dean asked each of us, as an ice breaker, to explain why we had enrolled in the Law School, where we were occupying places that, traditionally, would have been filled by men. (It was one of those moments in life when one wished she could vanish through a trap door. But it was also an alert that there would be no hearty welcome waiting for women at the bar.)
Supreme Court Justice Sandra Day O’Connor tells a story familiar to students who attended law schools in the 1950s, even in the 1960s. Justice O’Connor graduated from Stanford Law School in 1952 at the very top of her class, yet no private firm would hire her to do a lawyer’s work. “I interviewed with law firms in Los Angeles and San Francisco,” O’Connor recalled, “but none had ever hired a woman before as a lawyer, and they were not prepared to do so.” 1Peter W. Huber, Sandra Day O’Connor 33 (Chelsea House Publishers 1990) (American Women Achievement Series). (Many firms were not prepared to break that bad habit until years after Title VII of the Civil Rights Act of 1964 made it illegal.)
When President Carter took office in 1976, no woman had ever served on the United States Supreme Court, and only one woman – Shirley Hufstedler of California – then served at the next federal court level, the United States Court of Appeals. Today, Justice O’Connor serves on the Supreme Court, and close to twenty-five women serve at the federal Court of Appeals level. Two currently serve as Chief Judges of their Circuits.2West Publishing Co., West’s Federal-State Court Directory, (1994 ed. 1993).
The few women who braved law school in the 1950s and 1960s, it was generally supposed, presented no real challenge to (or competition for) the men. The idea was they would devote themselves not to high-paying clients represented by law firms, or to top jobs in corporations and government, but to serving the poor and the oppressed – those who could not pay for legal services. It was true in the 1950s and 1960s, and remains true today, that many women lawyers are sympathetic to, and active in, humanitarian causes, but so are the best men, I believe – the ones who care about the community and world our children and grandchildren will inhabit.
An American Bar Association report in the early 1990s expressed concern that lawyers in commercial practice may be losing their sense of perspective and ethics, under pressure from law firms to produce business and billable hours. Substantial numbers of the young lawyers surveyed complained about the attendant pressure to cut back on family involvement.3American Bar Association, The State of the Legal Profession 22, 33-35 (1990). There is reason to hope that the increasing participation of women in the profession will have an ameliorating effect. By persistently raising the crucial issues of family and work place, of leave time for parents and work place affiliated facilities, women lawyers can take the lead in bringing sanity and balance to the profession. In this regard, sisters need the aid of brothers in law. These issues must become human issues, not just “women’s issues.”
To illustrate my point, travel back with me to an incident in the mi-1970s, when I was teaching at Columbia Law School and trying to manage a full docket of sex equality cases in or headed toward the Supreme Court. The incident concerned my son, then a spirited ten-year-old. You know the kind – challenging as a youngster but now, at age twenty-seven, well on his way to becoming a fine human. In my son’s early school years, there were calls from the principal, almost monthly, requesting a meeting with me to discuss my lively child’s most recent adventure. One afternoon, when I felt particularly weary, I responded: “This child has two parents. Please alternate calls for conferences.” After that, although I observed no quick change in my son’s behavior, the telephone calls came barely once a semester. There was more reluctance to take a father away from his work. There still is.
But as women join men in diverse fields of endeavor, as lawyers, engineers, bartenders, computer programmers, we are discovering that personality characteristics for both sexes span a wide range. Immodest aspiration is as evident in some women as it is in some men. Caring for one’s family, on the other hand, sharing in bringing up children or attending to elderly parents, cooking dinners, helping to keep the house in order, no longer mark a man as strange. (To the abiding appreciation of my daughter, son, and now grandchildren, meals at our house, for more than a dozen years, have been taken completely off Mommy’s track – she has no talent for the job – and switched to Daddy’s – he has indeed mastered the art.)
Yes, large problems still exist. Raising young children, as I just observed, continues to pose more formidable psychological and logistical obstacles for women than for men. But the distance traveled from the 1950s to the 1960s is large, and I am optimistic that the trend toward shared roles for men and women, at work and at home, will continue.
There are still those who insist that men inevitably have an edge on leadership opportunities – on power positions at the bar and on the bench – because they are innately more aggressive. In a book published in 1974, The Psychology of Sex Differences,4Eleanor E. Maccoby & Carol N. Jacklin, The Psychology of Sex Differences (1974) two Stanford University Professors, Eleanor Maccoby and Carol Jacklin, convincingly confirmed a link between aggression and dominance in little boys – and also in apes. But, those authors hastened to add, human boys grow up. The leadership style thought most effective in civilized society is not the ruthless tough guy who forcibly imposes his will on others. Rather, the qualities that count most are the ability to conciliate among opposing factions and to foster development of younger, less experienced people in return for their loyalties. These interactive qualities, the kind vital to the successful mediation of controversies, do not appear to be linked to one sex to a greater extent than to the other. Women, I believe, are as generously endowed with them as men are.
Theoretical discussions are ongoing today – particularly in academic circles – about differences in the voices women and men hear, or in their moral perceptions. When asked about such things, I abstain or fudge. Generalizations about the way women or men are – my life’s experience bears out – cannot guide me reliably in making decisions about particular individuals. At least in the law, I have found no natural superiority or deficiency in either sex. I was a law teacher until I became a judge. In class or in grading papers over seventeen years, and now in reading briefs and listening to arguments in court for nearly thirteen years, I have detected no reliable indicator of distinctly male or surely female thinking – or even penmanship.
Minnesota Supreme Court Justice Jeanne Coyne reports this exchange. She was asked: “Do women judges decide cases differently by virtue of being women?” She replied that, in her experience, “a wise old man and a wise old woman reach the same conclusion.”5Sandra Day O’Connor, Portia’s Progress, 66 N.Y.U. L. Rev. 1546, 1558 (1991). I agree, and I also agree with film maker Salley Potter who said, in reference to her film “Orlando”: “[M]en and women have far more in common than we’ve imagined[;] the differences between us have been grossly exaggerated and made the basis for huge pain, grief and misery.”6Bernard Weinraub, The Talk of Hollywood; How Orlando Finds Her True Self: Filming a Woolfian Escapade, N.Y. Times, Feb. 15, 1993, at C11.
In Women in Law, a book first published in the 1980s,7Cynthia F. Epstein, Women in Law (2d ed. 1993). a well-known sociologist, Cynthia Epstein, documented how women succeeded in making their way into law schools and thereafter into every kind of legal work, even judging and law teaching, although for too many years they were not wanted. That women lawyers, law teachers, and judges are doing so well, the book comments, is not surprising to any but those who harbor prejudice. The study further predicts, correctly, I believe, that not only will women continue to use their law degrees profitably, they will do so with continuing idealism and humanity, simply because those qualities are expected from them. But the author of the study strongly urges, and again I agree, society should not assign to women, based on traditional notions about the way women are, the primary role of guardian of social consciousness. Humane caring and concern, the author writes, should not be regarded as dominantly “women’s work,” it should be regarded as the work of all. That is the grand ideal I have for the 1990s and beyond.
To conclude these remarks, I will comment on a prime professional challenge that lies ahead for you. Charles Dickens, who shared some distrust of lawyers and their trade with writers from Shakespeare to Sandburg, put it this way in Bleak House:
The one great principle of the English law is, to make business for itself. There is no other principle so distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme, and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.8Charles Dickens, Bleak House 509 (Bantam Books 1983) (1853)
Beyond doubt, public esteem for the law and lawyers will not be high when lawyers are seen as defenders of complexity, cost, and delay, or as a greedy breed, seeking to rope off unduly large domains that only the bar may superintend.
If the law, in several of its compartments, is unnecessarily complex (and it is), and if the law’s processes are unjustifiably expensive and protracted (and they are), it should be a hallmark of a learned profession to so acknowledge and work toward change. For the good of the public, lawyers should identify means to reduce the costs of justice and of transactions between individuals and enterprises. Your rigorous training at George Mason equips you to help make lawyers’ work in planning and dispute resolution more efficient and more rational. You will derive greatest satisfaction if you use the specialized training you have received here, not simply as an artisan doing a day’s work for a day’s pay, but as a contributor to the improvement of our legal system.
My hearty congratulations to the men and women of the class of 1993 and to the families who have aided class members on their way. May you thrive in the practice of law and may you use your skills for the benefit of all humankind.