First Women: Shirley Hufstedler

The law is the true embodiment of everything that’s excellent. It has no kind of fault or flaw and I, my lords, embody the law. Someday a better singing commercial for the legal profession may be composed,but so far none has topped Gilbert & Sullivan’s Iolanthe written more than one hundred years ago. The British audience at the premiere probably tittered appreciatively. Today’s audience would probably be much less amused because lawyers and judges are even less popular these days, and litigation is more dreaded. Of course dissatisfaction with lawyers and legal systems are not new. That grumbling was old in Shakespeare’s day, but the causes of disaffection with the legal profession, including the bench, are more complicated and intractable than they were more than 50 years ago and are even more poorly understood. The legal profession has changed profoundly since I was admitted to the Bar in January 1950. Some of those changes are very welcome, others are not. In 1950 the California Bar was severely segregated. Women lawyers constituted only a handful of the profession. A law school with 1% female students was deemed to have a bumper crop. We ascertained that 7 women were admitted to the California Bar that year. No person of color was hired for public law offices. Jewish lawyers were not welcomed into Gentile firms, and the same was true in reverse for Jewish firms. Firms did not hire women. That has fortunately changed. It should surprise no one that law practice changed dramatically, because social mores, science, technology and businesses changed dramatically. In 1950, transnational businesses were few, and multi-national businesses were almost non-existent. Law offices could be established in downtown Los Angeles for little outlay. Office space could be obtained for $6 per foot. Office equipment consisted primarily of manual typewriters, telephones, a mimeograph machine, and lots of carbon paper. Metropolitan lawyers routinely represented middle income clients. Discovery was severely curtailed. No blockbuster jury awards existed. Lawyers’ incomes were modest. Although I was at the top of my law school class at Stanford and an officer of the Volume I, No. 1, Stanford Law Review, Stanford’s only recommendation for me in 1949 was that I could be a legal secretary for a probate firm in Santa Barbara. I declined. Because no law firm would hire me as a lawyer, I developed my own practice. Initially, I began doing legal research for a well-established Stanford lawyer. Later, I began writing briefs for him, and somewhat later, for lawyers in other law firms. Indeed, I later anonymously wrote so many briefs for other lawyers that I sometimes thought I was made from ectoplasm. I opened my one-woman law office in 1951 in a suite of lawyers in which a number were sole practitioners; my husband was also practicing there with his then senior partner, Charles E. Beardsley. All the lawyers shared a common library. In addition to writing briefs for others, I also took all kinds of cases that other lawyers and law firms did not choose to keep. As a result, I spent a lot of time in former municipal courts and sometimes in the superior court. In addition, I volunteered one-half day a week for the Los Angeles Legal Aid Foundation. All of those opportunities gave me a lot of very necessary experience. The change in my situation happened because a former law professor of mine had left teaching to become a key figure in the California Attorney General’s office for the purpose of litigating the multi-state-United States litigation over the water rights to the Colorado River. As you know, when a case is between states and the United States, or the United States against a state, the United States Supreme Court is both the court of first and last resort. I initially began working on that case writing legal memoranda; thereafter I became a member on a small team to write the legal briefs for the Special Master appointed by the Supreme Court to take evidence and write a proposed disposition; thereafter I wrote briefs for the U.S. Supreme Court. After I had joined the team to write briefs for the Supreme Court, I was named Special Consultant to the Attorney General of California. At that time, the Attorney General was Edmund G. (“Pat”) Brown. I as deeply involved in the preparation of that case for the United States Supreme Court argument. While that case was pending in the Supreme Court, Pat Brown had become Governor of California. He appointed me in 1961 to the Los Angeles County Superior Court. At that time I was one female with 119 men. I was initially assigned to a regular civil trial department. The following year, I was named presiding judge of all the pretrial courts in the Los Angeles Superior Court. Simultaneously, I was conducting settlement conferences. In my third year, I was appointed Judge of the Law and Motion Department, in which court I also took the overflow from Writs and Receivers. At the time I was in Law and Motion, I created tentative decisions for every case, for the first time in any court as far as I am aware. I did all the work myself because I had no law clerk. Occasionally, I would be briefly aided by an extern. Because my tentative decisions reduced the time on the bench by more than half, I was frequently asked to substitute for judges in other departments, which I did. After my fourth year in the Superior Court, Chief Justice Roger Traynor appointed me to the Appellate Department of the Superior Court. I was in that position for one year, at which time Governor Brown appointed me to the California Court of Appeal. My colleagues in division five of the California Court of Appeal were Otto Kaus and Clarke Stephens. Otto and I had known each other when we were both Superior Court judges, and we became close friends during our service in the California Court of Appeal. We talked law constantly. Either he convinced me or I convinced him, because we never ultimately dissented from each other. After I served for two years in the California Court of Appeal, President Johnson appointed me to the United States Court of Appeals for the Ninth Circuit. At that time and for many years later, I was the sole female federal appellate jurist in the country. One woman had been appointed to a federal appellate court before I was appointed. However, she had died before I went on the federal appellate bench. I served on the Ninth Circuit for eleven years until President Jimmy Carter asked me to resign to become Secretary of Education of the United States in 1979. When I accepted that appointment, I was thrown into the maelstrom which is Washington, D.C. Putting together a Cabinet-level department for the first time is extremely hard work. It was particularly difficult at that time because there was a federal hiring freeze. Therefore, it was necessary for me to negotiate with departments and agencies throughout the federal government to obtain some vacancies because I had to interview and recommend for presidential appointment the major offices in the department, to create an inspector general’s office, an office of general counsel, a civil rights section and numerous other jobs. I was blessed to obtain the services of some extremely well-qualified persons for all of the major jobs. Before the department was built, it was also necessary for me to carry the budget through the Office of Management and Budget, through the appeals to the President and Vice President, and to defend the budget on the Hill. I have never regretted undertaking the tasks, but I had no desire to live within the beltway again. When President Carter’s term was concluded in 1980, I returned to private life, teaching, practicing law, and negotiating nuclear arms control agreements with the old Soviet Union. Shortly thereafter, I was named Chair of the United States Commission on Immigration Reform which took me all over the United States, in Europe and Africa. When Otto retired from the California Supreme Court, and I retired from public service, we became partners in the law firm of Hufstedler, Miller, Carlson & Beardsley where we specialized as a team for appellate work in multiple appellate courts, state and federal. One of the substantial dividends of my career has been an opportunity to learn a great many things I would never have known anything about otherwise. I can heartily recommend public service as a way that any lawyer can enrich his or her life. A life in the law is full of rewards as well as difficult responsibilities. Retrospectively, I cannot believe that I could have had better opportunities.