Lauding an Illustrious Career from the Factory to the Bench Annual Survey is dedicated to the Honorable Patricia Wald.
n t h e su m m e r of 194 8, befor e entering Yale Law School with the intent of becoming a labor attorney, Patricia McGowan hit the bricks with her uncle and grandfather—in picket-line solidarity with a United Auto Workers strike—at a ball bearing factory in gritty Torrington, Connecticut, where she worked as a “greaser.” This was before McGowan earned her J.D., married lawyer Robert Wald, and, much to the consternation of religious conservatives in Congress who labeled her an “instrument of the Devil,” became the Honorable Patricia M. Wald—and now former chief judge of the U.S. Court of Ap- of American Law to Judge Wald. She was peals for the District of Columbia Circuit; lauded by fellow D.C. Circuit judge Harry former associate judge for the International T. Edwards, professors and former clerks Criminal Tribunal for the Former Yugo- Cynthia Estlund and Nancy Morawetz ’81, slavia; mother of five, grandmother of 10; and former colleagues Kelly Askin, senior and, in frigid Iowa during the presidential legal officer at the Open Society Justice caucus season, a heavily bundled, 79-year- Initiative, and David Tolbert, senior fellow old canvasser schlepping door-to-door in at the Jennings Randolph Fellowship Program of the United States Institute of Peace. the cause of Barack Obama. For her numerous accomplishments, All spoke of light-hearted and even comic as well as persistent good humor, student moments that leavened what they called an editors dedicated the 2009 Annual Survey “inspired and inspiring” career.
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Watching from the Wings While many students were in class on March 30, Jacob Karabell ’09 was at the U.S. Supreme Court watching Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, deliver an oral argument that Karabell helped him prepare in Travelers Indemnity v. Bailey and the consolidated case Common Law Settlement Counsel v. Bailey. The case involves the long-running asbestos litigation. After Travelers and other insurers contributed to a $2.8 billion settlement fund in exchange for immunity from the bankruptcy court from future claims, plaintiffs’ lawyers found other grounds to sue. Following mediation, Travelers then funded a $500 million trust in return for clarification that it would be immune from future claims. Plaintiffs not part of the new settlement objected, and the U.S. Court of Appeals for the Second Circuit agreed, finding that the bankruptcy court did not have the power to immunize Travelers from other claims. The Supreme Court granted review. Karabell, now an associate at Covington & Burling in Washington, D.C., began assisting Issacharoff, who represents the plaintiffs against Travelers, in January. He reviewed Supreme Court and circuit case law, legislative history, and scholarship. Students from the Supreme Court Litigation Clinic also assisted with the brief, and that clinic and its director, Samuel Estreicher, Dwight D. Opperman Professor of Law, were co-counsel on the brief. Once the brief was submitted, Karabell helped Issacharoff prepare for oral argument by researching potential questions from the bench. Justice Souter asked whether subjectmatter jurisdiction ever can be challenged collaterally if it is not contested in the first proceeding. Issacharoff relied on Karabell’s research to answer that the Court had never squarely addressed the issue. “I had run through the argument a million times in my head. As a result, it was fascinating to watch everything unfold several rows in front of me.” 82
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Judge Edwards recollected circuit bench conferences when “you always want to hear what Judge Wald has to say because she clears your head and improves your understanding, and maybe she’ll be funny as well.” Estlund, Catherine A. Rein Professor of Law, praised Wald for her “refusal to lose sight of the concerns of ordinary people” who are affected by broad theories of law settled in appellate decisions. And Morawetz, professor of clinical law, cited her mentor as a “role model for women clerks,” on and off the judicial clock. “One night, we all went to a bar and taught her to play Pac-Man,” Morawetz disclosed. “The judge went incognito—as ‘Marge.’” In an interview prior to the ceremony, Wald remembered that summer of ’48, and the woman she holds responsible for her success—her mother, Margaret O’Keefe McGowan, who, when her husband disappeared during the Great Depression, raised their child alone, determined that a girl could go far from the mill town of her birth. Indeed, following a postgraduation clerkship in New York, she wound up in Washington, D.C., due to her husband’s U.S. Navy assignment. The federal government was “in the throes of loyalty hearings” that year, Wald explained. Accordingly, she dropped labor law to sign on at a firm that defended victims of Senator Joseph McCarthy, the notorious red-baiter and blacklist bully. The firm was, she said, “a more appropriate place to work” in 1952. She left practice to raise her children. When, in the 1960s, Wald returned to law as a female lawyer 10 years out of the game, the available opportunities led her into part-time criminal justice work, which included children’s rights—a pursuit that later prompted opposition from religious zealots during congressional hearings on her appointment to the D.C. Circuit by President Jimmy Carter. “The stance of some evangelical and conservative groups was that families should make all important decisions about the child,” Wald explained, adding that lawyers like her, bent on children’s health and drug education, “constituted an unjustified intrusion into the sanctity of family life.” To be accused of complicity with Lucifer in congressional hearings, said Wald during her short thank-you address, was “particularly galling since my five kids had to sit stoically through the entire harangue.” Afterward, however, a reporter asked one of her sons for his reaction. The son made his mother proud by saying, “Well, she burns the lamb chops, but otherwise she’s O.K.” Thomas Adcock