A “Pioneer” with “a Subtle Wisdom” — and a “Genuine Wealth Minimizer” to Boot: The Legacy of Chief Judge Patricia Wald

by Aaron Nielson — Saturday, Jan. 12, 2019@Aaron_L_Nielson

If you ever want to get a sense of the real D.C. Circuit — a feel for the personalities behind it — I recommend you spend some time at the D.C. Circuit Historical Society’s web page. I went there today upon learning the sad news of Chief Judge Wald’s passing. One valuable service the Historical Society provides is to host the transcripts of the Court’s portrait ceremonies. You can learn a lot about the Court from those ceremonies.

In honor of Chief Judge Wald, I’d like to share some highlights from her ceremony.

To begin, here is the portrait itself:

It’s a wonderful portrait. It’s earnest and direct. I like the simplicity of it.

Her colleague’s praise, however, was even more lovely. Here, for instance, is how Justice O’Connor described Chief Judge Wald:

She served, as you’ve already heard, on this very court for 20 years, the last five of which she was Chief Judge of this court. I’ve always admired Judge Wald. We were on similar tracks as women lawyers. She was a working mother, as was I. She had a lawyer husband, as I did. And each of those lawyer husbands was remarkably supportive of a working lawyer wife. The similarity ceased, however, when I learned that Judge Wald did not drive an automobile and they didn’t bother to have an automobile. Now, I couldn’t have survived without a car or two at hand.

We became well acquainted personally as we served together on the Executive Board of CEELI, the Central Eastern European Law Initiative, that was formed with the breakup of the Soviet Union to provide technical legal assistance to about countries in that region. And we had a small governing group, and Pat Wald and I were on that. We spent lots of hours. We made many trips to places you wouldn’t pick as your first choice for a summer vacation. And we tried to spread messages of the rule of law and how to build institutions that would help these nations function in a free market environment. And Judge Wald did more than that. She would go off, in addition, on some missions to very remote places and stay for days at a time, hands on helping some of the judges and the lawyers in those regions in times of real stress and hardship. We crossed the Atlantic a few times with all those hours to spend on airplanes. I just don’t think a better role model could have been found to take to other remote parts of the world than Pat Wald.

Perhaps because of all that influence of the work for CEELI, when Judge Wald decided to retire from this bench, she accepted the appointment for two years as a member of the War Crimes Tribunal for the former Yugoslavia. She had to live in the Hague, and I think her husband had to do a little commuting. But, of course, she served there as she served here, with great distinction.

Now it’s very hard to paint a portrait of a woman like this. We hope the artist was able to do it, but the portrait that all of us have in our minds and hearts from knowing her is a very, very beautiful portrait, indeed.

Next came Justice Breyer. His remarks are well worth your time — and not just because he (like Justice O’Connor before him) pokes some fun at Yale Law School (“I went to a different law school, and at that law school we learned that Yale was an acronym for ‘Youth Against Learning and Education,’ and that’s the end of it”). Here is some of what he had to say:

Pioneer:

I was thinking of the portrait as you were and I thought, well what are the characteristics of Pat that we’re going to see in that portrait? And I thought of five quite serious ones. The first, of course, is a pioneer. She is a pioneer. You mentioned some of it. She went off to the Tribunal against Yugoslavia. Did she speak Croatian? Not a word. Bosnian? Even less. Serbian, did that stop her? A little French, but she got there and really made a difference. She is a pioneer. She took my law clerk, Jenny Martinez, even though she realized that the training in real law in the Supreme Court may be lacking.

But the more important part of the pioneer which Sandra knows, which Judy knows, which all the women here know, and we’ve read that from some of our classmates, was in the early 1950s to be a woman lawyer. And it wasn’t easy. And there were special difficulties. And you read what some of the people wrote at that time. They don’t mention the difficulties because the secret was always smile, you know. Be dressed right; respond properly, etc. But it was hard. And when she was clerking for Jerome P. Frank who wanted to hire, I gather, Bob, too, as another clerk, and then he couldn’t get permission because they needed at the AO to have a paycheck written to the messenger. So Bob went over to Irving Kaufman who may not have had the same scintillating personality as — but in any case. From there and on it was not easy.

But when she goes to Yugoslavia, and there are those young women lawyers there, they come out and they cheer. And what they’re cheering for is that pioneering spirit.

Task Oriented:

Now the second thing about her, I think she is what I call task-oriented. Now what does that mean, “task oriented”? It means just think, “What is the job? I’m going to get it done.” And, indeed, I gather again from Bob, she was here about one week, and somebody from the White House called up and said, “Will you please swear in the Secretary of Energy?” and she said sure. But she didn’t have her robe, so she borrows one from Lou Oberdorfer, I think, and then she gets into the subway. She gets out of the subway at the White House and carries the robe in a bag over the shoulder. You know, here she is, what Bob says it’s “Apple Mary.” I’m not sure what he meant by that. But nonetheless, knocks on the door, and they let her in. She swore him in. He was a great secretary; she got the job done. And that’s — read the opinions.

The opinions are case by case. You bring intelligence, learning, and common sense, and what I call common decency to bear on these cases with a certain breadth of outlook that says this fits into something that works for people. And that’s where you get her contribution as a judge to the law. And it is followed. It will be followed, and that’s what I call task-orientation.

Leader:

What does that mean, a leader? I don’t know. It means to me, when I’m at the ad law sections and she’s there — we used to go to these wonderful ad law conferences. They usually went to a nice place. They had pretty good food, talked about interesting issues. I mean, I’d find myself sitting there, and something comes up, I’d say, “I wonder what Pat thinks? I wonder what Pat thinks?” And that’s how people in the courts feel, lawyers feel. “What does she think about this?” You see, it’s this sort of example, low key, not bossy, just thinking about it, you know. Thinking about it, and there it is. And we find that a lot. That’s, I think, the leadership in this court, in the system in general.

Genuine Wealth Minimizer:

I don’t know if the fourth is necessarily a good characteristic. But she is a genuine wealth minimizer. She has taken jobs, each one pays less than the last. And she started out at legal services and from there on it was a steady decline in the nature of the compensation.

Public Servant:

What is the public servant that ought to be? The public servant that helps the public, that’s thinking about how to help the public, that’s effective in helping the public, that takes one job after another designed to help the public, and that’s Pat Wald, all right. So, there we are. Great person. We all think that.

Judge Tatel also spoke at length with characteristic eloquence and sincere affection:

I was deeply touched when Pat asked me to speak here today, not just because she’s a friend and a treasured colleague — whom I miss very much — but because this gathering celebrates the accomplishments of one of America’s finest judges.

From 1979, when Pat Wald took a seat on the D.C. Circuit–the first woman ever to serve on this court–through her five years as our Chief Judge, to the dayshe left two decades later for the International Criminal Tribunal for the former Yugoslavia, Pat was a widely respected intellectual leader of this court and a special colleague to us all. Judge Wald’s contributions to the D.C. Circuit and to the rule of law are so numerous that I hardly know where to begin. Let’s start with her enormous contribution to legal doctrine: over 800 opinions, including a healthy share of en bancs, address a breathtaking range of subjects. …

Appellate judges are often evaluated in terms of their records in the Supreme Court. In Judge Wald’s case, I prefer a slightly different perspective: What’s the Supreme Court’s record with her decisions? Not bad. The Justices got six right and only four wrong. …

Years later when I joined the court, I learned that Pat played a special role for us new judges. In fact, Pat was my own personal on-the job trainer. It was Pat who helped with those perplexing questions that confront all new judges: how to write a critical yet respectful memo to a colleague, when to dissent, which cases are worthy of en banc review. Pat helped in many other ways as well. Although we rarely disagreed, her first dissent from an opinion I wrote came with the following note: “David: Here is my dissent. It’ll do wonders for your reputation.” It was also Pat who taught me how to deal with the occupational hazard that faces every appeals court judge: Supreme Court reversal. Here is how she put it to her oral historian, Steve Pollak: “The first time I was reversed, I felt absolutely crushed. I thought, how am I going to go in the next day? People will look at you and say, ‘Oh my, she was reversed!’ To my pleasant surprise, nobody said a word, and I learned that that is the unwritten law. Nobody talks about the reversals and that’s just fine by me.” That advice came just in time. Pat was absolutely right: no one said a word.

Speaking of Pat’s oral history, which I highly recommend — it’s on file at the D.C. Circuit Historical Society — I love the story she tells of the first time she dissented from an opinion by Judge Bazelon and its relationship to the Milton Kronheim Liquor Warehouse lunches, a D.C. Circuit tradition that unfortunately ended before my time. Having told Judge Bazelon of her decision to dissent, she knew that he was, to say the least, not pleased. After that one disagreement, she explained, “I didn’t get invited to the Kronheim Warehouse for lunch anymore.”

Here is my favorite part of what Judge Tatel had to say (though there is a lot more to read — as you should):

Judge Wald’s opinions bear a striking resemblance to those of two other D.C. Circuit legends, Carl McGowan and Harold Leventhal. All three served together for a brief period in the late ’70s — imagine a court with Leventhal, McGowan, and Wald, the judicial equivalent of the ‘56 Dodgers, Robinson, Koufax and Campanella. Not only did Pat speak at Judge Leventhal’s and Judge McGowan’s portrait ceremonies, but I wasn’t at all surprised to discover how well her eloquent descriptions of her two colleagues capture her own judicial career. What she said of Judge McGowan’s opinions, for example, applies to hers as well: “illumined by a clarity of reason, a lucidity of expression, an undeniable logic, a total lack of arrogance, an open mindedness, a disarming directness, and a subtle wisdom.”

There were more stories told during the ceremony (some really good ones, too) but let’s turn to Chief Judge Wald’s own concluding remarks:

And, of course, this court, the D.C. Circuit past and present, the centerpiece of my professional life, 20 years and 800 opinions, at least some of which I hope will have a persistent half-life. I still miss it enormously, the dissents as well as the concurrences, the instantaneously empathetic colleagues and the sleepers, the ones who became true and treasured colleagues only after years of mutual labor and tolerance.

Cardoza said the great tides and currents which engulf the rest of men and women do not pass the judges by. And, of course, he was right. There were so many highlights in those 20 years. I was the first woman member of the court gallantly served by her colleagues. I cannot even remember a possible slight nor, I would add nostalgically, could there have been a more courtly group than the old school judges who first welcomed me here in 1979. National crises and wars came and receded and re-emerged. Four Presidents placed their mark on the times. This court changed in composition and direction but, in my view, never wavered from the standards of excellence and integrity and oversized influence that have been its historic hallmark. As a depression kid in upstate Connecticut, I could not ever have imagined being one of you.

What a generous thought: “This court changed in composition and direction but, in my view, never wavered from the standards of excellence and integrity ….” And what a remarkable judge. May she rest in peace.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

One thought on “A “Pioneer” with “a Subtle Wisdom” — and a “Genuine Wealth Minimizer” to Boot: The Legacy of Chief Judge Patricia Wald

  1. William M Yeatman

    Thoughtful post. Before I’d been to law school or knew anything about the law, Judge Wald was the first ever judge I came to know by name during my late-20s/early-30s. I was an environmental policy analyst interested in historical development of environmental policy, and I kept seeing her name as author of consequential opinions in that field. She stuck out b/c her reasoning was first-rate, and she imparted it well. I was naive enough back then to fail to realize she was viewed by many as carrying progressive tendencies to a fault–eons ago, I mentioned her in an appreciative tone at a D.C. lunch w/ an industry lawyer, and his surprise at my admiration took me aback. R.I.P.

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