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Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus Presents: The Class of RBG Part Two
00:30:29
Ruth Bader Ginsburg and two of her classmates discuss their lives from Harvard Law School through today.
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- [00:04]
President Bill Clinton
Please be seated. I wish you all a good afternoon, and I thank the members of the Congress and other interested Americans who are here. After careful reflection, I am proud to nominate for Associate justice of the Supreme Court Judge Ruth Bader Ginsburg of the United States Court of Appeals for the District of Columbia.
- [00:29]
Narrator (Dahlia Lithwick)
June 1993. Ruth Bader Ginsburg joins President Bill Clinton in the Rose Garden as he announces his intent to nominate her to the Supreme Court.
- [00:41]
President Bill Clinton
If, as I believe, the measure of a person's values can best be measured by examining the life the person lives, then Judge Ginsburg's values are the very ones that represent the best. And America. I am proud to nominate this pathbreaking attorney, advocate, and judge to be the 107th justice to the United States Supreme Court.
- [01:05]
Narrator (Dahlia Lithwick)
Looking at this moment in the rearview mirror, there's the sheen of inevitability. At the time, though, Ruth Bader Ginsburg wasn't particularly well known. She was a centrist judge on a D.C. circuit Court of appeals. Important, sure, but not a household name.
- [01:24]
Ruth Bader Ginsburg
Mr. President, I am grateful beyond measure for the confidence you have placed in me, and I will strive with all that I have to live up to your expectations in making this appointment.
- [01:48]
Narrator (Dahlia Lithwick)
But even as Ginsburg stepped into the public imagination for the first time, there were some people who had been watching her for decades. The other women of the Harvard Law school class of 1959.
- [02:02]
Ruth Bader Ginsburg
My law school class in the late 1950s numbered over 500. That class included less than 10 women.
- [02:13]
Narrator (Dahlia Lithwick)
As Ruth Bader Ginsburg stood next to President Bill Clinton in the Rose Garden, one former classmate, Rhoda Isselbacher, was in the car driving back from Cape Cod with her kids and her husband. Everyone in the family remembered this moment. Rhoda died in 2015, but her husband, Kurt, and her children talked to us for this project. They said they all heard the announcement over the radio.
- [02:39]
Ruth Bader Ginsburg
The announcement the president just made is significant, I believe, because it contributes to the end of the days when women, at least half the talent pool in our society, appear in high places only as one at a time performers.
- [03:04]
Narrator (Dahlia Lithwick)
Rhoda's reaction to Ruth's success? Well, she cried. She couldn't help but think, maybe that could have been me. I'm Dalia Lithwick. This is Amicus Slate's podcast about the Supreme Court and the law. And this is the second and final part of our series, the class of RBG, about the women of Harvard Law School's class of 1959. Today we're going to find out what happened to them. After Harvard. We'll hear about the doors they flung open, the doors that were locked, and the doors that were just slammed in their faces as they tried to make their way in a world that wasn't quite ready for them.
- [03:51]
Carol Brosnahan
I thought I would do something in the law, but I wasn't sure what it would be. And of course, when I got out of law school, there were not a raging number of opportunities.
- [04:06]
Narrator (Dahlia Lithwick)
Carol Brusnahan and her new husband, Jim. He was the fellow law student she had wooed with her cooking in her final year at Harvard. Well, they hightailed it out of Boston straight after final exams. Didn't even wait around for graduation, and they headed to Arizona.
- [04:24]
Carol Brosnahan
When we got to Phoenix, there were no law jobs available to me.
- [04:29]
Interviewer (possibly Dahlia Lithwick or a co-host)
And why Arizona in the first place?
- [04:31]
Narrator (Dahlia Lithwick)
Was it for Jim's job?
- [04:33]
Carol Brosnahan
No. Neither of us had a job in 1958. A Jewish girl marrying a Catholic guy was not acceptable, and certainly not acceptable where my husband had grown up, which was in the Irish Catholic community in Boston. So we decided we would set out on our own. In many ways, that has kind of shaped who I am and who Jim is, because we understood what it was like to be not quite approved of.
- [05:09]
Interviewer (possibly Dahlia Lithwick or a co-host)
Not just Jewish, Catholic, but a woman lawyer.
- [05:12]
Carol Brosnahan
Oh, yeah. It was kind of a double whammy.
- [05:17]
Narrator (Dahlia Lithwick)
Carol's husband, Jim, became an assistant U.S. attorney in Arizona. Carol's job was not quite as prestigious.
- [05:25]
Carol Brosnahan
As secretary to the Senate Judiciary Committee. Basically, my job was to hand bills to the chairman of the committee, and I was glad to have a job. But then I got pregnant with our first child. Two years later to the day, our son was born. I had three kids in three and a half years.
- [05:57]
Interviewer (possibly Dahlia Lithwick or a co-host)
Oh, my God.
- [05:58]
Narrator (Dahlia Lithwick)
Jim moved from the U.S. attorney's office in Phoenix to the federal prosecutor's office in San Francisco, and the family relocated to the Bay Area.
- [06:07]
Carol Brosnahan
And I passed both bars. And I was going crazy trying to stay home with the kids, so I took a job with continuing education on the bar, and I started out as a fact checker, and then I progressed.
- [06:28]
Narrator (Dahlia Lithwick)
For Carol, the progress wasn't necessarily linear.
- [06:32]
Carol Brosnahan
It was a struggle. Professionally, you have to be lucky. But I edited litigation books, wrote a number of books on poverty law, and then I became head of local bar relations, going all over the state. We had two assistant directors, and neither of them were doing as much work as I was doing. And I said to the director, you know, I really should be an assistant director, and he wouldn't do it. And that's why I put my name in for the Jetship the heck with it. I'll put my name in, see what happens. Because I was Director of Fire Relations, I knew an awful lot of lawyers around the state. My guess is that some of them put in a good word for me. I got a call. Carol, the governor would like to appoint you to the Berkeley Municipal Court. And tell Jim you got this one on your own.
- [07:42]
Interviewer (possibly Dahlia Lithwick or a co-host)
At that point, you had three kids, a working spouse who was also an attorney. Was it just a constant juggling, plate spinning life? Oh, yeah.
- [07:55]
Carol Brosnahan
Because you have to understand that I am of a different generation than you are. Which means my husband didn't change diapers. He was a great dad, but the household and the children were my responsibility. Nothing to criticize him. That's just the way it was in the 1960s and 70s. So, yes, it was a lot of juggling and not very much sleep.
- [08:30]
Interviewer (possibly Dahlia Lithwick or a co-host)
I don't know if this makes you feel any better, but when I watch the movies about Justice Ginsburg and Marty Ginsburg and he's doing all the cooking and all the, like, intense parenting, I feel the same way. I'm like, my husband doesn't quite do that either.
- [08:45]
Carol Brosnahan
That's aberrational. I will tell you a story about. Oh, this is about 20 years ago. I was at work and Jim was home, and I get this phone call. How do you turn on the stove? So he wasn't much in the kitchen.
- [09:25]
Narrator (Dahlia Lithwick)
Marty Ginsburg once said, quote, I think the most important thing I have done is enable Ruth to do what she has done. But as Carol suggested, it's hard to overstate how rare that kind of support was. Take Rhoda Isselbacher, the classmate who cried in the car on the drive back from Cape Cod when news of Ruth Bader Ginsburg's appointment to the Supreme Court came over the radio. And Rhoda said, that could have been me. Her husband Kurt, says he tried to comfort her, replying, no, it couldn't, because you married a doctor, not a lawyer. And I didn't support your career. You supported mine. We'll be right back.
- [10:10]
Flora Schnall
When I graduated, it was really hard. I did a lot of interviewing to get a job.
- [10:17]
Narrator (Dahlia Lithwick)
Flora Schnall's struggle to find work after Harvard was coupled with advice to settle for less. Sexism's accomplice. Low expectations.
- [10:27]
Flora Schnall
My father kept urging me to take one job or another, which I felt were not legal jobs. The only thing that had kept me looking was that I knew that Ruth hadn't gotten a job.
- [10:43]
Interviewer (possibly Dahlia Lithwick or a co-host)
And wait, why did that keep you looking? Because you felt like she was.
- [10:46]
Flora Schnall
Well, I felt if Ruth, who was first or second at law school, couldn't get hired, I just had to keep looking. And I just became very lucky because one summer I worked at the Manhattan District Attorney's office and became friendly with the DA's administrative assistant.
- [11:09]
Narrator (Dahlia Lithwick)
Flora's friend from the summer job yielded a connection that got her an in at the Governor's office.
- [11:15]
Flora Schnall
And I got a job as an assistant counsel to Nelson A. Rockefeller. It was just sheer luck they wanted a woman. So it was a wonderful eight man office and me, I was the only woman in the office. We draft executive bills, we present memorandum on bills, and there were all kinds of lobbyists and people approaching us and it was fascinating.
- [11:45]
Narrator (Dahlia Lithwick)
Flora left her job in the council to the Governor's office for a position at powerhouse law firm Milbanke, tweed, Hadley and McCloy. Although the man who interviewed her for that job was at pains to dispel any illusions she might have about advancing at the firm.
- [12:02]
Flora Schnall
We have no women partners and I don't think you'll ever be a partner here.
- [12:07]
Carol Brosnahan
That's what he told me.
- [12:08]
Flora Schnall
Oh, that's nice. And I went into the real estate area not knowing that that was not a white shoe place in the firm to be, if you know what I mean. Well, it turned out that real estate got to be a really hot lucrative area and I had a fabulous time.
- [12:30]
Narrator (Dahlia Lithwick)
Flora worked on some of the biggest real estate projects in New York City, Lincoln Center, Battery Park City. She joined professional organizations and she networked. When Milbanke Tweed, as promised, would not make her a partner, she went to a firm that did. And then she moved back to her first firm years later as a partner. She became the first woman president of the American College of Real Estate Lawyers. And all along the way she met resistance and even she said, ridicule.
- [12:59]
Flora Schnall
It wasn't easy to have any support from women because there just weren't many women around to do that.
- [13:07]
Interviewer (possibly Dahlia Lithwick or a co-host)
And so how did you win folks over? Did you just keep bringing your ideas?
- [13:11]
Flora Schnall
You'd have to kind of pick and choose the members who you felt would support you and engage them to talk it up. You just met a lot of resistance because if it was something new and the fact that they probably didn't like the idea that a woman had thought of it and they didn't.
- [13:30]
Interviewer (possibly Dahlia Lithwick or a co-host)
And did you see in the profession as you were going along, could you see sort of the eras of change?
- [13:39]
Flora Schnall
Well, it was happening because they were hiring more women and eventually there were more women who were becoming partners not too many, but some never in positions of real power at the firm.
- [13:54]
Interviewer (possibly Dahlia Lithwick or a co-host)
Did you end up marrying and having kids?
- [13:57]
Flora Schnall
I never married. I never had any kids. When I applied for Social Security.
- [14:07]
Carol Brosnahan
I.
- [14:07]
Flora Schnall
Did it on the telephone. And the woman said, are you married?
- [14:11]
Carol Brosnahan
No.
- [14:13]
Flora Schnall
Are you divorced?
- [14:15]
Carol Brosnahan
No.
- [14:15]
Flora Schnall
Are you a widow?
- [14:17]
Carol Brosnahan
No.
- [14:18]
Flora Schnall
Do you have any children?
- [14:20]
Carol Brosnahan
No.
- [14:21]
Flora Schnall
How'd you get to be so lucky?
- [14:29]
Narrator (Dahlia Lithwick)
When we come back, Ruth Bader Ginsburg takes her first steps on the career ladder, but doesn't find out until decades later the real story behind how she got her first job. Flipping through the 1959 Harvard Law School yearbook. It's the one for the class's final year. There are only seven women among softly lit black and white portraits of the graduating class. One woman dropped out after a miserable first year. Another was killed in a tragic motor scooter accident in November of 1958. Ruth Bader Ginsburg isn't in the 1959 yearbook. She transferred to Columbia for her last year of law school, following her husband Marty to New York when he got a job there. In following Marty, she had to give up on a Harvard law degree. Even though she argued that she'd done most of her studies at Harvard. Administrators there would not budge. And so her J.D. came from Columbia. She made law review at both institutions and graduated top of her class. But still, nothing came easy for the.
- [15:55]
Ruth Bader Ginsburg (continued or Gerald Gunther)
Women in my class and in Marty's class, it was getting that first job that was powerfully hard. If the woman got her foot in the door, she did the job very well. And the second job was not the same hurdle. In those days for me, there wasn't a single firm in New York, two who called me back. I came down to interviews, but in the end, they were concerned about how their wives would feel about working a man working closely with the women. And it amazed me because they all had women secretaries. But that's just the way it was.
- [16:43]
Narrator (Dahlia Lithwick)
Ruth Bader Ginsburg was also denied a clerkship with Supreme Court Justice Felix Frankfurter. He rejected her because he worried he might not like how she dressed. I can't stand girls in pants, he reportedly said. Does she wear skirts? When he was told that she did, Frankfurter still declined to interview her, saying he would feel uncomfortable. Never mind that any man with Ginsburg's resume would have been a shoo in. But then Ginsburg had a stroke of luck, albeit one for which she was overqualified. She got a federal district court clerkship with Judge Edmund Palmieri. At the time, she believed Judge Palmieri had taken her on because he wanted to see women advance in the profession. But it turns out, not so much. According to her friend and mentor, Professor Gerald Gunther, a lion of constitutional law.
- [17:42]
Ruth Bader Ginsburg (continued or Gerald Gunther)
Jerry Gunther tells a story that I was not aware of until he wrote it, and it's in the Hawaii Law Review. There was some issue about me.
- [17:54]
Narrator (Dahlia Lithwick)
Gunther's story in the Hawaii Law Review was about his role in finding clerkships for Columbia students, including one called Ruth Bader Ginsburg.
- [18:05]
Ruth Bader Ginsburg (continued or Gerald Gunther)
He said that he called every judge in Southern district, all the 2nd Circuit judges, and then he thought he had a good prospect. And that was Judge Palmieri, who had been a Columbia undergraduate and a Columbia Law School graduate. And as Jerry told the story, he said, give her a chance, and if she doesn't work out, there's a young man in her class who's with a downtown firm and he'll jump in and take over. But if you won't give her a chance, then I will never recommend another Columbia clerk to you. And I thought all along that Palmieri took a chance on me because he had two daughters, and he was envisioning how he would want the world to be for his daughters was not the case. As Jerry tells this story. Palmieri wasn't resistant to having a woman as a clerk. He had already had one, but he was concerned about Jane, that he might need me and she might be sick.
- [19:27]
Interviewer (possibly Dahlia Lithwick or a co-host)
I'm trying to imagine what it feels like, Justice Ginsburg, to think that somebody was a kind of enlightened champion of women, only to find out he took you under duress because he was threatened. I feel as though If I were a 1L listening to your story, it would seem like science fiction. So far away and so hard to relate to. And yet I wonder if you can tell me the parts of what you were seeing that are still urgently important for women to focus on.
- [20:05]
Ruth Bader Ginsburg (continued or Gerald Gunther)
It's an unconscious bias. It's expectation. You're lowered expectation when you hear a woman speaking. I think that still that still goes on instinctively. When a man speaks, he will be listened to, where people will not expect the woman to say anything of value. But all of the women of my generation have had time and again that experience where you say something at a meeting and nobody makes anything of it, and maybe half hour later a man makes the identical point and people react to it and say, good idea. That, I think, is a problem that persists. And getting over unconscious bias by becoming conscious of it. I've told a story about the symphony orchestra many times. Our people were so sure that they could tell the difference Between a woman playing and a man when blindfolded, they could not.
- [21:29]
Narrator (Dahlia Lithwick)
We are, of course, rarely blindfolded at work. Conscious and unconscious bias shaped and shifted the lives of all the women in the class of 59. It was an issue in the very first jobs they got, and it determined whether and how they went on to do things like make partner. Later, I wanted to ask Flora Schnall about whether those shifts produced fundamentally different lawyers.
- [21:56]
Interviewer (possibly Dahlia Lithwick or a co-host)
Do you think women approach the law differently than men, or do you think essentially it's the same project?
- [22:05]
Flora Schnall
Well, it's funny, because at a dinner once, I was sitting next to a federal court judge who told me his daughter was a lawyer and she was a litigator. And I asked him about the litigators, the feminine litigators who come before him, and he said, they really don't have it. They don't have the killer's instinct. He says, and here his own daughter was a lawyer. So it's the way other people perceive women lawyers. They may have the killer instinct. Like I had a nickname. They called me the Velvet Hammer.
- [22:45]
Ruth Bader Ginsburg (continued or Gerald Gunther)
I love.
- [22:47]
Flora Schnall
Doesn't matter if it's true or false. It's the way people perceive women lawyers.
- [22:52]
Interviewer (possibly Dahlia Lithwick or a co-host)
And has that changed, do you think, that perceptions about men and women.
- [22:56]
Flora Schnall
No, I don't think it's changed.
- [22:58]
Narrator (Dahlia Lithwick)
Judge Carol Brosnahan, who continues to preside over cases in her mid-80s, still witnesses those perceptions at work today.
- [23:07]
Carol Brosnahan
There are still biases, and as long as there are some of the older generation, if you will, of lawyers and judges who came up even in the 60s and 70s, they are not receptive completely to the idea of a woman. You will hear this in the descriptions. You know, the male lawyer may be assertive and the woman is shrill. The adjectives may be different. The feeling that somehow it's not feminine to fight for your client.
- [23:57]
Interviewer (possibly Dahlia Lithwick or a co-host)
Do you think there's a different between women judges and men judges?
- [24:02]
Carol Brosnahan
I think it's a question less of women judges and men judges than lifetime experiences. I think, on balance, the women judges that I have met are a little more open to change because they have been part of it. You know, when I first came, I would be the only woman in the courtroom. Now they may be all women in the courtroom.
- [24:35]
Interviewer (possibly Dahlia Lithwick or a co-host)
That's an amazing shift.
- [24:38]
Narrator (Dahlia Lithwick)
One of the emblems and one of the drivers of that shift is their former classmate, Flora Schnall. And Carol Brosnahan continue to watch her with pride and affection.
- [24:51]
Interviewer (possibly Dahlia Lithwick or a co-host)
I think the last thing I want to ask about is what it's been like for you to Watch Ruth Bader Ginsburg's career unfold. Has it been a gobsmacking surprise?
- [25:06]
Flora Schnall
I'm trying to think. I guess I took it in my stride and felt she was extraordinary and that very deserving of the honors and I'm glad she's hanging on.
- [25:25]
Interviewer (possibly Dahlia Lithwick or a co-host)
Did you ever think that there would be this generation of 14 year old girls who buy all the Ruth Ginsburg tote bags and the dress up as her as Halloween? I mean it's such a strange thing to happen when she's in her 80s.
- [25:40]
Flora Schnall
I'm kind of overwhelmed by it, but pleased. But pleased. And I wish her the best of health for the next 10 years.
- [25:50]
Carol Brosnahan
Oh, you know, I'm so proud of her. You know, I want to be her when I grow up. She's tough, she's smart, she's brilliant and she stands for so much in terms of what a woman can do that I just am in awe of what she's accomplished.
- [26:14]
Narrator (Dahlia Lithwick)
Ruth Bader Ginsburg is symbolic of so much for so many an icon, but for the women and the class of 59, she's not an abstraction. She was one of them. What bound these women together were the shared burdens of insulting job interviews, unfair family leave policies, spouses who needed full time wives and persistently unequal pay.
- [26:37]
Ruth Bader Ginsburg (continued or Gerald Gunther)
These are not flaming feminists. These women, they have every kind of personality, some shy, some bold. So there wasn't a type that became the first women.
- [27:00]
Narrator (Dahlia Lithwick)
These women didn't go to Harvard to to be trailblazers. They went to Harvard to become lawyers. They were just trying to live their lives and do their work and the world kept throwing up obstacles. Looking back over all 10 women's stories, you'll find full biographies for each of them@slate.com RBG. It becomes really clear that Justice Ginsburg's classmates are not just supporting cast in the movie of her life. Their very real struggles are the fuel for her life's work. Their stories, their lives, they're written into the pages of her opinions and concurrences and dissents. She's thinking of them when she writes for women who are chronically underpaid, like Lilly Ledbetter, women trying to access birth control in Hobby Lobby, or the female cadets attempting to attend the all male Virginia Military Institute. Carol and Flora and Alice and Rhoda, they are all there. Across decades of doctrine, Ruth Bader Ginsburg has worked and written, continues to write to change systems, relieve burdens so women can just live their lives. Next week our Slate plus members will get to hear my full extended interview with Justice Ginsburg. We sat down with her for a full hour and you will hear more from her about her fellow students, including the woman who most impressed her at the law school. And you'll hear about her worries about letting the side down if she ever faltered to listen to it. You'll need to sign up for Slate plus, and you can do that@slate.com amicusplus Amicus presents the class of RBG is produced by me, Dahlia Lithwick and Sarah Burningham, with editorial direction by Laura Bennett and Susan Matthews. Molly Olmstead, a staff writer at Slate, contributed an immense amount of reporting to this podcast. Again, you're going to want to read the full stories of all of these women's extraordinary lives written by Molly@slate.com RPG Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior Manager, Managing Producer of Slate Podcasts. The artwork for this special series is by Holly Allen. Special thanks to Slate's Danielle Hewitt, Chow Tu, Katie Raiford, Jason De Leon, Mary Wilson, Noreen Malone, Allison Benedict, and Jared Holt. And one more special thanks to Aliyah Smith. Thank you so much for listening.
- [30:01]
Interviewer (possibly Dahlia Lithwick or a co-host)
And is there anything that you had been thinking about or reflecting about that you wanted to add before we let you go?
- [30:08]
Carol Brosnahan
No.
- [30:08]
Flora Schnall
I just wish men were better.
- [30:12]
Narrator (Dahlia Lithwick)
Wow.
- [30:13]
Interviewer (possibly Dahlia Lithwick or a co-host)
Do you want to say that more expansively or are you happy?
- [30:16]
Carol Brosnahan
Just that's it.
- [30:19]
Interviewer (possibly Dahlia Lithwick or a co-host)
I have loved every minute of this. Thank you so much.
- [30:23]
Carol Brosnahan
Okay.
- [30:24]
Flora Schnall
Thank you.
- [30:25]
Carol Brosnahan
Of course.
- [30:25]
Narrator (Dahlia Lithwick)
Take care.
- [30:26]
Interviewer (possibly Dahlia Lithwick or a co-host)
Bye.