Patricia Wald’s Great Legacy, by Jeffrey Lubbers

by Guest Blogger — Tuesday, Jan. 15, 2019

The world (and especially the world of Administrative Law) suffered a great loss on January 12 when Patricia Wald succumbed to cancer at the age of 90. The Washington Post’s excellent obituary was entitled, “Patricia Wald, pathbreaking federal judge who became chief of D.C. Circuit, dies at 90.”

She was a pathbreaker in more ways than one. She was raised by a single mother in a working-class, Irish-immigrant family in Connecticut, and was the first member of her family to go to college, yet she rose to be the first woman to serve on the D.C. Circuit and then the first woman Chief Judge of the D.C. Circuit. She served on the court from 1979 to 1999 when she changed her life by accepting an appointment to serve as the U.S. representative on the International Criminal Court for the Former Yugoslavia (ICTY). After completing her term on the ICTY, she was appointed by President G.W. Bush to the President’s Commission on Intelligence Capabilities of the U.S. Regarding Weapons of Mass Destruction, and later was appointed by President Obama to the Privacy and Civil Liberties Oversight Board. She was an active member of many boards (including the Council of the Administrative Conference of the U.S.), and won many awards, including the Margaret Brent Award of the National Association of Women Judges, the American Bar Association Medal (the highest honor awarded by the ABA), and the Presidential Medal of Freedom in 2013. She was also recognized as a Senior Fellow of our Adlaw Section.

Her life story is about as inspiring as it gets. In 2007 she recounted her early life and how she overcame the many challenges facing women entering the legal field in the 1950’s in an excellent 90-minute C-Span interview. Among the stories she tells is how she left her first legal job at what is now the law firm of Arnold & Porter to take almost a decade off from working to raise her five children, and then made her way back into the profession by doing part-time work on bail reform and other criminal justice issues, before becoming a public interest litigator for Neighborhood Legal Services and the Mental Health Law Project in Washington. In those jobs she helped bring many landmark public interest cases. She then joined the Department of Justice in the Carter Administration before being appointed to the court in 1979.

But not only was she a great judge, she always made the time to give back to the profession, by giving guest lectures in law schools and making speeches to the legal community that always had interesting data and insights. By her count in the C-Span interview, she wrote over 800 opinions on the D.C. Circuit. When she left the D.C. Circuit, a tribute to her in the Administrative Law Review (52 Admin. L. Rev. 1, 2–3 (2000)), counted over 400 adlaw decisions and listed many of the most well-known ones:

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) (holding that EPA did not exceed statutory authority in promulgating new source performance standards governing emission control by coal burning power plants); Local 1219, American Federation of Government Employees v. Donovan, 683 F.2d 511 (D.C. Cir. 1982) (finding that Department of Labor settlement agreement was reviewable under the APA); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506 (D.C. Cir. 1983) (explaining that adequacy of notice depends on how well notice given serves the underlying policy behind the notice requirement); Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984) (holding that rule denying right to hearing on material factor to be relied upon by agency in making licensing decisions was issued in excess of Commission’s authority); American Hospital Ass’n v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987) (finding broad set of directives issued by Department of HHS were procedural in nature and not subject to notice and comment); Humane Society of the United States v. Hodel, 840 F.2d 45 (D.C. Cir. 1988) (determining germaneness test for associational standing requires only that an organization’s litigation goals be pertinent to its expertise and grounds that bring members together); Amalgamated Transit Union v. Skinner, 894 F.2d 1362 (D.C. Cir. 1990) (concluding that Urban Mass Transit Authority lacked authority to make rules requiring local transit agencies receiving federal funds mandate random drug testing of employees); National Family Planning and Reproductive Health Ass’n, Inc. v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992) (stating when an agency adopts significant new construction of old rules agency is required to engage in notice-and-comment rulemaking); Mail Order Ass’n of America v. U.S. Postal Service; 986 F.2d 509 (D.C. Cir. 1993) (ruling Board could maintain suit against Commission without permission from Attorney General); American Medical Ass’n v. Reno, 57 F.3d 1129 (D.C. Cir. 1995) (holding that budget of fee-funded diversion control program was subject to rulemaking; plaintiffs were entitled to information relevant to question of whether activities can be included within the diversion control program; and determination of whether to include activities within the program is amenable to judicial review); and Beverly Health and Rehabilitation Services, Inc. v. Feinstein, 103 F.3d 151 (D.C. Cir. 1996) (finding National Labor Relations Act precluded subject matter jurisdiction over employer’s action).

But this just scratches the surface. She also issued many influential concurring and dissenting opinions. One such dissent mentioned in the Washington Post was one in which the en banc court upheld the expulsion of a midshipman from the Naval Academy for homosexuality in Steffan v. Perry, 41 F.3d 677, 701 (D.C. Cir. 1994) (en banc) (Wald, J. dissenting).

Although Judge Wald was a professed political liberal—in later life she was active with the Soros Foundation’s Open Society Justice Initiative and the American Constitution Society, and she enthusiastically went door-to-door to support President Obama in 2008—she was also admired by her conservative colleagues such as Judge Silberman who recommended her for President Bush’s “Intelligence Commission,” which he co-chaired.

One of her most famous decisions, Sierra Club v. Costle, is a good illustration of her willingness to decide cases counter to her politics when her administrative law principles demanded it. This case involved environmentalists’ challenge to a major EPA sulfur dioxide emissions limitation for coal-fired power plants. Her opinion ran over 130 pages in the West reporter and had 540 footnotes. The Sierra Club had not only contended that the emissions limitation was too low, but also that the rulemaking had been tainted by ex parte communications, including those made by representatives of the White House and Congress. The court upheld the rule. As to the substantive challenge, Judge Wald wrote:

We reach our decision after interminable record searching (and considerable soul searching). We have read the record with as hard a look as mortal judges can probably give its thousands of pages. We have adopted a simple and straight-forward standard of review, probed the agency’s rationale, studied its references (and those of appellants), endeavored to understand them where they were intelligible (parts were simply impenetrable), and on close questions given the agency the benefit of the doubt out of deference for the terrible complexity of its job. We are not engineers, computer modelers, economists or statisticians, although many of the documents in this record require such expertise and more. 657 F.2d at 410.

As to the ex parte communications, in a key passage, Judge Wald, after ruling that the EPA had met its obligations to defend its rule based on the public rulemaking record, defended presidential involvement in rulemaking as desirable. She wrote:

The court recognizes the basic need of the President and his White House staff to monitor the consistency of executive agency regulations with Administration policy. He and his White House advisers surely must be briefed fully and frequently about rules in the making, and their contributions to policymaking considered.***

Our form of government simply could not function effectively or rationally if key executive policymakers were isolated from each other and from the Chief Executive. Single mission agencies do not always have the answers to complex regulatory problems. An overworked administrator exposed on a 24-hour basis to a dedicated but zealous staff needs to know the arguments and ideas of policymakers in other agencies as well as in the White House. 657 F.2d at 405,406.

This view of presidential involvement, which was at the time quite unpopular with the Democratic-controlled Congress, helped cement the system of White House review of rulemaking that has continue to exist under all subsequent administrations.

Another side of Judge Wald was her willingness to participate in academia. A Westlaw search of law review articles authored by her came up with 99. The earlier ones were mostly about administrative law, judging, and the D.C. Circuit. Most of the later ones were about the ICTY and human rights. But there were a sprinkling of tributes to other judges and lawyers, commencement addresses and articles about women in the law. I’m sure that all are worth reading, but I chose 7 to highlight in this piece. Three of them are must-reads for all law students: 19 Tips from 19 Years on the Appellate Bench, 1 J. APP. PRAC. & PROCESS 7 (1999); “For the United States”: Government Lawyers in Court, 61 LAW & CONTEMP. PROBS. 107 (1998); and Whose Public Interest Is It Anyway?: Advice for Altruistic Young Lawyers, 47 ME. L. REV. 3 (1995).

The other four are very reflective pieces on judicial review: Judicial Review in the Time of Cholera, 49 ADMIN. L. REV. 659 (1997); Judicial Review in Midpassage: The Uneasy Partnership Between Courts and Agencies Plays On, 32 TULSA L.J. 221 (1996); Regulation at Risk: Are Courts Part of the Solution or Most of the Problem?, 67 S. CAL. L. REV. 621 (1994); and The Sizzling Sleeper: The Use of Legislative History in Construing Statutes in the 1988-1989 Term of the United States Supreme Court, 39 AM. U. L. REV. 277 (1990). It’s no wonder that many of her law clerks became law professors.

On a personal level, Judge Wald was funny, self-deprecating, and demanding. She was especially helpful to young lawyers. When I was one in the mid-80’s, the Federal Bar Association asked me to organize a special administrative law issue for their journal. I thought it might be a good idea to interview the newly installed Chief Judge of the D.C. Circuit. Chief Judge Wald took my call and readily agreed and, armed with a tape recorder, I nervously sat down with her in her chambers. When I look back on the interview today, I see how she indulged my desire to ask more than my share of questions. The first question I asked produced an answer that I still quote to my students in the first class of my Adlaw classes to this day:

I asked: “Let me begin by asking you a general question about the field of administrative law. I have noticed in your opinions, speeches, and articles that you seem to genuinely enjoy working in this branch of the law. What would you tell the law student or young lawyer about the field?”

She replied:

I would tell them that it is an immensely interesting field and in a sense a window on the world. I found since I came on the court that through the window of administrative law you learn a great deal about many facets of real and regulatory life. One day you may be reviewing a Social Security rule and the next day you’re reviewing an [EPA] rule on a toxic chemical or OSHA standard on the work place. Through the window of administrative law you get to see the entire gamut of what the government is doing and I think, in a small way, affect the lives of an enormous number of people.

So administrative law is really fifteen kinds of subject matter rolled into one. That’s why it is so interesting; no one administrative law case is like any other administrative law case. In fact, one interesting aspect to me has been the relatively small amount of precedent in the field. Surely we have some overriding guidelines from Vermont Yankee, Chevron, Heckler v. Chaney, but administrative law is not the sort of field where you run to the law books and find another case and that tells you how to rule. Almost every situation is unique.

I ended by asking her, perhaps a bit impertinently: “In closing, I’m sure you read the many statements praising Chief Justice Burger upon his retirement from the Supreme Court. You are a long way from retirement obviously, but what would you like people to say about you when you do retire from public service?”

Her answer was typically modest: “Oh, the usual. That she worked very hard, she was a reasonably good administrator. She was a thoughtful and fair judge and she made some small contributions towards pushing the law forward as an effective means of solving human and social problems.”

[Note—the interview was published as: Administrative Law as Seen from the DC Circuit: An Interview with Chief Judge Patricia M. Wald, 34 FED. BAR NEWS AND J. 15 (1987). Because it’s a bit hard to find I would be happy to forward a copy to anyone who e-mails me at JSL26@aol.com.]

In addition to Judge Wald’s administrative law legacy, I want to close by acknowledging her leadership in the fields of women-in-the-law and international human rights and humanitarian law.

One tribute that combines those two fields is Diane Amman’s excellent IntlawGrrls tribute “Judge Patricia Wald (1928-2019), IntLawGrrls contributor and inspiration.”

My own colleagues at American University, Washington College of Law, also reminisced about Judge Wald. International Law Professor Diane Orentlicher, a leading chronicler of the ICTY, spoke for many of us when she said:

I’m struck but not surprised by how many of our faculty knew Pat Wald and were enriched by her friendship as well as incomparable leadership. She had seemingly boundless energy to engage actively—and to excel—in so many demanding spheres of law and policy…. During her relatively brief tenure on the [ICTY], she served on a case for which the Tribunal is most widely praised, and which provided the most profound satisfaction to survivors. After stepping down as a judge, she went on to illuminate in an incomparably incisive and humane fashion the unique challenges surrounding international justice. . . . What a treasure.

Human Rights Professor and former UN Special Rapporteur on Torture, Juan Mendez, added, “At the ICTY she left her mark by insisting on the due process rights of all defendants, no matter how serious the crime they were accused of.” Susana Sacouto, Director of our War Crimes Research Office, said “What a tremendous loss. She was . . . deeply respected for her contributions to international justice, both as a pioneering judge and after she left the Yugoslav tribunal. Susana also pointed to an oral history interview on Judge Wald that focused on her work in international human rights.

Finally Professor Bob Dinerstein, , who directs our Disability Rights Law Clinic, pointed to some of Judge Wald’s early work as a public interest litigator:

Pat Wald’s contributions to the development of mental health law, especially in DC, were far more significant than apparent from the brief mention in the Post obit. She was one of the founders of the Mental Health Law Project (MHLP), which started out as a project of the Center for Law and Social Policy, but by the mid-1970s had become an independent entity. MHLP is now known as the Bazelon Center for Mental Health Law, one of the pre-eminent public interest law firms in the nation advocating for people with disabilities. Pat was involved in filing, and, in the early years, litigating the long-running institutional reform case of Dixon v. Weinberger concerning conditions at DC’s Saint Elizabeth’s Hospital. . . Dixon was one of the earliest cases to argue for the application of least restrictive alternative principle as a limitation on the government’s authority to deprive people with mental illness of their liberty. She was a brilliant lawyer (as well as judge and board member, as many others have noted), who wore her erudition lightly even as her empathy for powerless people shone through.

It seems clear that Pat Wald did not just “work very hard,” nor was she just “a reasonably good administrator,” who “made some small contributions towards pushing the law forward.” She was an inspiring leader of the legal profession, an admired Chief Judge of the second most important court in the U.S., an administrative law innovator, and a human rights reformer who made huge contributions to pushing the law forward. She will be sorely missed.

Jeffrey S. Lubbers is Professor of Practice in Administrative Law at American University’s Washington College of Law.

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