THE VFA PIONEER HISTORIES PROJECT
“What we found was appalling…the breadth of discrimination in case law and common law and statutory law.”
Interviewed by Judy Waxman, February 2020
JW: This is Judy Waxman and I am here with Brooksley Born. Today is February 3, 2020, and we are in her home. I need to start at the beginning. When and where were you born?
BB: I was born in San Francisco, California, on August 27, 1940.
JW: What was it like in your early days before the women’s movement?
BB: I was born right before World War II, so my earliest days were in World War II. I luckily had very supportive parents. I had a younger sister. There were no boys in the family. And I was encouraged to do everything and anything without gender restrictions by the family. Of course, the society and the culture had a lot of gender restrictions at that time. And still, unfortunately, there are some.
JW: What got you involved in the women’s movement?
BB: I had gone to law school and graduated in 1964. I was very lucky. I got a job at Arnold & Porter here in Washington. Why did I go there? Because they had a woman partner – the only firm in town that did. I thought I might have opportunities there and be judged as a person rather than as a gender. I saw classmates of mine who were extremely capable, including, for example, Pam Rymer, who later became a Ninth Circuit judge, who could not get a job in a law firm in 1964.
JW: How many women were in your class?
BB: Four out of one hundred and sixty-five. I felt that I was very lucky, but I began to think, I have a place where I think I can progress and fulfill myself, but how many other women do? In about 1971, I had two little children. I was working three days a week at the firm, because they luckily let me go part time with the children, and I was invited to the inaugural meeting of the Women’s Legal Defense Fund. And that was the beginning.
JW: Tell me a little about the Women’s Legal Defense Fund initial meeting.
BB: Well, some women lawyers in town had earlier gotten together, the true founders, with the idea of forming an organization of volunteer lawyers who could assist women with women’s legal issues by providing pro bono legal services. It was modeled on the ACLU legal services program here in town, where volunteer lawyers did pro bono work on civil liberties issues. But this focused on sex discrimination and other matters, such as name change issues. And we formed an organization.
A number of friends of mine went onto the board. I didn’t. I was on the screening committee of WLDF, where we fielded calls requesting assistance from potential clients. And Arnold & Porter kept the files. We maintained the files for WLDF at the office, and serving on the screening committee was a true consciousness raising experience, because I would get calls covering an enormous range of issues that women were having.
For example, there was Farmer versus Farmer, one of our first cases. It was in Montgomery County. It was a divorce case involving custody of children, where the Montgomery County judge had ruled that the father, who was a practicing doctor and made an extremely good income, should have custody of the children, because he was such a good father. But the mother, who was a practicing lawyer, was not spending any time at home with the children and therefore was a very poor mother and should not have custody.
We took that up on appeal and got the trial judge overruled – that gender distinction like that in terms of the appropriateness of parenting should not be considered in custody cases.
JW: I might have been one of the people that spoke to you at that time, because a friend got divorced and wanted her own, call it “maiden name” back. And the judge said, no, you have a child. You can’t do that. And one of the WLDF lawyers took it on appeal in Maryland and that was overturned.
BB: Yes, that was another issue. And there were a lot of surprising things to me, that were problems. Problems in getting credit, problems in getting housing, problems with serving on juries. I began to realize that we really needed the Equal Rights Amendment. Not only was our society dedicated to sexism and sex discrimination, but our laws were too – that laws really needed to be changed in order for true equality.
JW: And did you get involved in the Equal Rights Amendment fights?
BB: I did. Marna Tucker was a dear friend of mine. She was working for the American Bar Association, what was then called the Individual Rights Section, doing a pro bono publico project, encouraging law firms to do pro bono work. She and I, from our work on WLDF, got very concerned about the need to pass the ERA. It was pending in Congress. It needed to be approved to be sent out for ratification. We found out that the ABA had refused, its House of Delegates which was a 536-person legislative body, had turned down a resolution to approve the ERA as one of its two acts on women’s issues. The other was to urge the Senate not to ratify the U.N. Treaty on the Rights of Women.
Marna convinced me I should join the ABA, which I never thought of doing, and join the Individual Rights Section. And we started a Rights of Women Committee. And the first thing we did was to frame a resolution. It didn’t explicitly call for ratification of the ERA, because the House of Delegates had just disapproved that. Instead, it declared that the ABA recognizes the constitutional equality of women. And within a year of joining, we took that to the ABA House of Delegates and got it adopted in August of 1972 with the help of a lot of wonderful male supporters in the Individual Rights Section.
We took that to the ABA Government Relations Office here in town, and they had a reputation of being a very conservative, careful group in that era. And when they went up and said the ABA supported the constitutional equality of women, it really made a difference in the Senate. And we were so pleased that then we spent the next decade or so passing resolutions urging the Department of Education to implement and enforce Title 9 – that was one of our first ones – urging Congress to adopt legislation forbidding sex discrimination in credit and housing and public accommodations; calling on the President to appoint women and women lawyers and lawyers of color to the federal judiciary; and a whole series of other resolutions.
JW: Many of those resulted in positive action.
BB: Yes. Not all of them, unfortunately.
JW: Do you have an issue that you think was of greatest concern to you? I mean, you’ve listed a whole range. I wonder if there was any that stands out as more important than others.
BB: I thought they were all important in opening doors and opportunities for women. I did get involved in the appointment of women and minorities to the federal judiciary. This was through the ABA. I was the first woman appointed to the ABA’s Federal Judiciary Committee.
JW: Do you remember what year that was?
BB: That was in 1977. It was a few months after Jimmy Carter had taken office. And he wonderfully was the first president of the United States who had a personal commitment to appointing women lawyers and lawyers of color to the federal bench. He also diversified the top ranks of the executive branch in some very meaningful ways.
But the ABA Federal Judiciary Committee was the organization that evaluated potential judicial nominees in terms of professional competence, integrity and judicial temperament, and reported to the executive branch, to the White House and the Justice Department, and then to the Senate Judiciary Committee if the person was nominated. As Carter began to nominate women lawyers and African-American lawyers in significant numbers for the first time in history, the Federal Judiciary Committee was poised to act on them.
Unfortunately, the standards that had been used historically by that committee were not really designed for this new batch of potential nominees. They were focused on the people who had traditionally been nominated – mostly elderly, white, male, senior partners in big law firms who were heads of litigation departments. And they required, for example, at least 15 years of experience at the bar.
Now in 1977 – 1978, there weren’t a lot of women lawyers who had 15 years of experience, particularly trial experience, which was one of the most difficult areas for women to break into and one that probably was not readily available to women until years after that. So we were having problems. Griffin Bell, who was the attorney general, and Jimmy Carter, who was president, called us in and we had meetings with both of them telling the committee that their standards would not do.
The head of the committee, Bob Raven, who was an attorney from Morrison and Foerster out in San Francisco, asked me, as the newest member of the committee, to revise the standards. And I think that was probably one of the most important things I ever did – to change the standards of experience so that you did not have to have 15 years, so that more than just federal court trial practice was considered in qualifying you for the bench.
We explicitly said that the committee would take into account in evaluating professional experience the fact that women lawyers and lawyers of color had come to the bar only in recent years in significant numbers. And that we would look at other kinds of experience including in arbitration and administrative law experience in evaluating trial experience.
We also explicitly said for the first time, that in evaluating judicial temperament, we would take into account whether or not the potential nominee had demonstrated a dedication to equal justice. And those new rules made all the difference. It turned the committee around in terms of our evaluations of women and lawyers of color.
JW: I assume it took a little while to kick in.
BB: Yes, there were a few bumps in the road, but we also adopted a new practice of the committee. We had one investigator per circuit with an extra one in the Ninth Circuit, as it was so big. If the circuit investigator was finding that he thought -and I use the term “he” advisedly, because everybody had been men up until then – that somebody might not be qualified, then we would bring in a second investigator from another circuit to redo the investigation and see if there was agreement.
JW: Well, that really changed everything. That’s amazing.
BB: That, plus the fact that there had been an omnibus judgeship bill that created 256 (or something like that) new judgeships in the federal bench made it so that Jimmy Carter could be extremely effective in appointing women and lawyers of color.
JW: And I know that you continued to be involved in women’s movement and activities after 1980 when Jimmy Carter was not reelected.
BB: Yes. In fact, in 1980, I was appointed the chair of the ABA Federal Judiciary Committee and was chair for the first three years of the Reagan administration.
JW: And you were able to affect policies of the ABA through that role?
BB: No, that really is a role that was very isolated. I did go do other things later in the ABA, including being on the board of governors and heading up their Fund for Justice and Education, which is their 501(c)(3) operation. During the Reagan administration it was very interesting, because of course, immediately they abandoned appointing many women and judges from minority groups. But we still, I think, were somewhat effective during those three years in trying to prevent really bad appointments. I was able to deal with a very sympathetic Deputy Attorney General named Ed Schmults, who was a former partner from White & Case.
In the meantime, really my biggest focus in the women’s movement had become the National Women’s Law Center. Its predecessor had started in 1972, when the Center for Law and Social Policy created a Women’s Rights Project and hired Marcia Greenberger to head it up. At that point, the Center for Law and Social Policy, which had been started by a good friend of mine, Charlie Halpern, did not have any women on the board of the Center.
And the leadership of the Center and the Ford Foundation, which was funding Marcia Greenberger’s activities, thought maybe there should be some women who played some kind of oversight role of the Women’s Rights Project. And rather than doing the extreme act of appointing a woman to the board, which was a little beyond the Center for Law and Social Policy at that point, they decided they would create a Women’s Rights Project Advisory Board. They asked me to head it up, which I did.
Marcia Greenberger amusingly had been asked as her first assignment at the end of 1972, when she began to work there, to write a memo on whether or not there really was enough work to keep a lawyer busy full time on women’s interests. And of course, she spent a lifetime working on those issues along with many other people.
At this point, the Women’s Legal Defense Fund did not have an employee. And it got an employee in kind of an interesting way. How was Judy Lichtman hired to be head of Women’s Legal Defense Fund? We had been purely volunteer and hadn’t had the money to hire anybody. I had become very concerned, as I said, about the need for the Equal Rights Amendment, and I’d written a speech called De Jure Sex Discrimination about how pervasive sex discrimination was in the laws of our country.
I shared the speech with all my new friends at Women’s Legal Defense Fund. And we gave it to women’s groups whenever we could to encourage activism. And Jill Ruckelshaus asked me if I would speak to the Junior League of Washington, D.C., which she was a member of. And I said, yes. And I went and gave my Equal Rights Amendment speech, which pointed out pervasive discrimination in the law and encouraged support of the ERA. And at the end of the speech, some of the members of the Junior League asked questions.
And one of the questions was, “What can we do to help?” And I said, “You can contribute money to the Women’s Legal Defense Fund so we can hire a lawyer to help supervise and organize the organization. And you can make volunteer projects for the next year of volunteering to be paralegals for our clinics.” At that point we had a number of clinics, including name change, divorce and family law, sex discrimination, Title 7, employment, etc.. And the Junior League did. They contributed the money that let us hire Judy Lichtman.
And the rest is history. Judy became a wonderful leader, as did Marcia Greenberger, of the women’s rights movement – built a very effective organization. They both did. Judy Lichtman’s organization became what is now known as the National Partnership for Women and Families. And the Women’s Rights Project of the Center for Law and Social Policy that Marcia Greenberger and I in my role as advisory board chair worked on, became in 1981 the National Women’s Law Center when it spun off from the Center.
JW: You said your involvement with National Women’s Law Center continued.
BB: Yes. I’ve spent my lifetime, my mature lifetime at least. I’ve always thought I started in 1972, but Marcia maintains that I didn’t. She didn’t start till after the election in 1972. And she thinks the advisory board was created right after New Year’s in 1973. So that’s probably when I started. I was on the advisory board. I acted as a sounding board for Marcia. And eventually there were additional lawyers working with her.
In about 1975 or 1976, the Center for Law and Social Policy broke down and put some of us on the board, the real board. But we stayed. We kept the advisory committee going until 1981. In the meantime, Marcia and others, Lois Schiffer, Margy Kohn Duffy Campbell had done wonderful things at the Women’s Rights Project. They had taken Title 9, for example, the statute that requires educational institutions receiving funding from the federal government not to discriminate against women in education. They had gotten the Education Department to the point where it was actually implementing the statute.
They established that there were private rights of action under Title 9 and they brought some very meaningful cases, including women’s athletic cases, cases on schools’ responsibility on sexual harassment and other kinds of tremendous cases. They were also doing employment discrimination cases, including filing amicus curiae briefs in Supreme Court cases. They were doing economic security, meaning things like tax policy in 1986. Well, that was later. But in Social Security reform, tax policy, welfare policy and they were doing reproductive rights and other health issues.
JW: What was your role there in those years?
BB: Well, as I said, during the 70s, it was as head of the advisory board. In ’81 when we became a freestanding corporation, a D.C. nonprofit corporation, I became chair of the board. I served as chair of the board until 1996, when I was nominated and confirmed as Chair of the U.S. Commodity Futures Trading Commission, an independent federal regulatory agency. And traditionally at that point, the White House counsel’s office would ask appointees or nominees to step down from any boards that they served on.
I agreed with the White House counsel, Chuck Ruff at the time, that I was willing to step down as chair, because I recognized that I couldn’t do fundraising for the National Women’s Law Center, but that I wouldn’t take the job if I had to go off the board. They let me stay on the board, and the National Women’s Law Center let me stay on the board even though I couldn’t fundraise for them. I continued on the board, and a wonderful woman, Elizabeth Coleman, took over as chair and she was very effective. She was the head of Maidenform at the time. Her grandmother had created Maidenform and her mother had been head of it before her.
When I left the CFTC in 1999, I became more active on the board again, and a few years after that, Elizabeth Coleman felt that for personal reasons she had to step down as chair and step off the board, and I was asked if I would chair a search committee for a new chair. And I was busily searching when Marcia Greenberger and Duffy Campbell came and said, we want you actually to be chair of the board. I kind of did a “Dick Cheney”, having been tasked with finding somebody else. I proposed myself.
JW: And resumed the role.
BB: Yes, which I did until 2014 when I stepped down, and Jane Sherburne became chair. And I just retired from the board itself as of last July.
JW: So that was a long service with that organization.
BB: Absolutely, it was really where my heart was. I think that was the most important thing I’ve done in my career.
JW: As a member of the staff of the National Women’s Law Center in the later years, we certainly always appreciated your support and guidance.
BB: I thought that, and I still believe that the National Women’s Law Center is the most effective advocacy organization in the country for women’s interests and is doing a wonderful job. I had the great privilege of practicing in a wonderful law firm, Arnold & Porter, and the quality of the legal work and other work by the Center was of the very highest private practice quality. I was always very proud of the work that the Center has done, and I think they made a true different world for women.
JW: Do you have anything else you want to add?
BB: I did teach Women and the Law at both Catholic University of America, their Columbus School of Law, and at Georgetown Law Center in the early ’70s. Marna Tucker and I were asked by Clint Bamberger, the new dean at Catholic Law School, if we would teach a Women and the Law Seminar. And the reason for that is he had gone into the Deanship in the early ’70’s before Title 9, which required professional schools to eliminate quotas. And he eliminated the quota on women at Columbus School of Law, probably in ’70 or ’71. And suddenly he had a considerable percentage of the first-year class, about 20 percent, were female rather than the usual 3 percent that the quota got.
And as those women went into their second year at law school, they wanted a Women and the Law course. Women and the Law had not been taught before. There were no case books. There were no textbooks. Marna and I both loved Clint Bamberger, who was a wonderfully liberal, wonderfully thoughtful, totally committed to equality in all respects, kind of lawyer. And so, we said yes. But the way we prepared for the class was to go out into the Arnold & Porter library at night and we started researching on women and the law.
What we found was appalling. It dovetailed with what we were finding at the Women’s Legal Defense Fund: the breadth of discrimination in case law and common law and statutory law. And we put together a casebook that essentially…we never published it. We used Xerox materials and Ruth Bader Ginsburg and others began to teach about the same time. And they did do a casebook with their materials. But that was a very consciousness raising experience as well.
JW: And you did it both at Georgetown and Catholic with Marna.
BB: Yes, we did it, I think, from either 1971 or 1972 through ’74 or ’75.
JW: I was in law school then at the Washington College of Law. I wish I would have known about your course; I would have loved for you to teach it there.
Thank you so much. It’s really been a pleasure. And although I do think I know you, I learned a lot about some of the things you’ve been involved in.
BB: I’m very glad that the Veteran Feminists of America is doing this oral history project. You know how dedicated I am to it. Let me just add as a little promotional effort that for the last 15 years I’ve been involved in another oral history project called Women Trailblazers in the Law that the American Bar Association has sponsored. It has in-depth oral histories of one hundred and eight women lawyers and judges from around the country who are senior lawyers, came to the Bar between 1940 and about 1975, excelled in the profession and made significant contributions to the interests of women. And we have a website that Stanford University has sponsored called abawtp.law.stanford.edu. The American Bar Association Women Trailblazers Project, I think, nicely supplements Veteran Feminists of America’s project.