SW: Tell me where you were born, about your parents, about experiencing segregation in various ways growing up.
EJ: I grew up in Norfolk, Virginia, when it was a very segregated city. This is the late ’40s. And, as a child, I saw all of the segregation pre-1964 Civil Rights Act, pre-Brown vs. Board.
SW: Did you go to an all black school?
EJ: All black school, all black schools all the way up to graduation from high school. I graduated in ’61. Two or three years before I graduated, there were certain students—that was the Norfolk 17—who were selected to “desegregate” the white high school. And I was very happy to be able to go to the black high school, Booker T. Washington. To not have to be one of those pioneers. And they are all friends because we all graduated at the same time.
SW: What was the high school like? It was not separate and equal, I presume.
EJ: Right. It was separate but not equal. We had the hand-me-down school books. Other students’ names, markings were all throughout the books. The labs. The physics and chemistry labs were not up to par. At least they were there. But they were just not up to par. The facility was woefully inadequate. The big white building looked like a factory.
SW: Just tell me about your parents quickly.
EJ: Parents. Mother was a school teacher, an elementary school teacher.
SW: In an all black school?
EJ: All black school. Good at what she did. Loved teaching. And she was a mentor to other teachers. My father was a Pullman porter. I remember A. Philip Randolph (founder of the Brotherhood of Sleeping Car Porters and civil rights leader) being at our kitchen table. So, that was that trade union, and daddy was a part of that. My father did not graduate high school . . . I know my father didn’t get beyond the fourth grade. Also my mother, a college graduate, taught him. Taught him how to write and do all the things he needed to do in order to do well in his position.
It was an amazing union, those two. And my father was the one . . . both of them had the education value, but my father really had it for his three children. He wanted us to have what he did not have. And he not only wanted us to go to college, he kept saying he wanted us to go to graduate school. Professional school. So, my sister and I both became lawyers. My brother became a minister.
SW: Does the belief in civil rights come from your parents, from growing up experiences?
EJ: It comes from growing up. It comes from riding the city bus in the back of the bus. It comes from seeing black people having to get up so whites could sit down. Because the buses on my route were mostly blacks. Because you didn’t have any integration in housing.
* * *
I got a favorable impression of the courts. One day I had gone to the dentist with no permission slip from my parents or anything. And I was about 10. And he took full mouth x-rays, and did all of this, and sent my parents a huge bill. They refused to pay the bill because they thought the dentist should have called home. And so the dentist got his lawyer and had summoned them to court. And when they got the court summons, my father said, “I can’t go. I have a railroad trip.” And daddy got one of his friends to go with me down to the court house.
When my case was called, I’m standing there, and finally the judge leans over, he was, quite obviously a white judge—and this shows me the importance of truth-telling—the judge asked me, “Did your parents know you were going to the dentist?” Through my mind ran the thought, “If I say yes they knew, then I’m being obedient, I’m doing what my parents want me to do. If I say no, I’m being disobedient.” And therefore, I had a second to decide, and fortunately, I decided to tell the truth. And I said, “Your honor, no. They didn’t know. I had the toothache, and I just. . . .” He then turned to the lawyer for the dentist and he said, “How often do 10-year-olds walk into the dentist’s office and your client does $75 worth of work? $75 worth of work on a child with no parental slip.” And he said, “Well, I’m dismissing this.”
That taught me something: When in doubt, you just tell the truth. Especially in all of my cases and all of the litigation, you never fudge the facts. Just tell it the way it is, and then you can argue. Let the facts be the facts. And that was a very good lesson.
SW: So, when did you decide that you wanted to be a lawyer?
EJ: Right then. That helped. With all the injustice, and all the wrong, and I said, “Courts can make a difference. They can right wrongs.”
And so, after that I would tell everybody I wanted to be a lawyer. And they would look at me and they would—they never said no, but they would pat me on the head, the adults. Because they didn’t know any l black woman lawyer. You know what this is, early ’50s. No blacks. Despite all of this, they said, “Oh, I know you’ll be whatever you want to be. And you’ll be very good at whatever you do.”
SW: But they didn’t believe it?
EJ: They didn’t believe it for one minute. And I kept saying, “I’m going to be a lawyer.” And finally my parents would say, “Elaine is going to be a lawyer.”
SW: So, you went off to college.
EJ: I went off to college. And I went to Howard. And you know, hotbed of everything. Stokely Carmichael and I were in the same class. And we took philosophy together. There were eight of us sitting around talking about Picasso’s cubist period. Everything was going through Howard University. And then Lyndon Johnson gave the Great Society speech. It was my graduation class.
SW: Did you get involved in any civil rights protests?
EJ: Little stuff. Not much. I went to downtown Norfolk. Sat in at Woolworth’s a couple of times.
SW: You were a good student?
EJ: I was. I was a good student. You say to yourself, “Well, my time will come.” And that is what I said to myself. And I believe that now. Everybody does what they do when they do it, and it all contributes towards the whole. That was my thought. And so, I said, “I’ll find a way. And law will be my way.”
So, then I decided I needed to get away from it all. When I graduated, I went to the Peace Corps. Africa was big then, but I chose Turkey because I knew one day I would go to Africa on my own and I would see the different countries. And I always had an adventurous spirit. And I also thought, “You know, let me go and immerse myself in Turkish culture for a couple of years.” And I didn’t really know what I was saying. All I know it was different and I liked its central location because I could easily travel to other countries.
SW: And then spent two years in Turkey?
EJ: Two years in Turkey teaching English to medical students. You say a sentence and they fill in the verb or the adjective or the noun. And I could hear them speak after a while, not only filling in the verbs and the language, but they were imitating my accent (laughing). They were picking up the accent, and I said, “Oh, these poor people.”
So, then I returned to the U.S. I had only applied to two law schools while in Turkey: Howard, my alma mater, and the University of Virginia. And I had been to Howard. Charlie Houston had been the dean. But then there was Virginia. And I said, “You know, I doubt that Virginia will admit me, although they should. I’m a daughter of Virginia and my grades are good.” But I said, “They won’t. And what they will do,” I thought, “is pay my tuition to go to school elsewhere.” Because that had been the policy of the State of Virginia. I thought, “Elaine, you’re on your way to law school elsewhere with Virginia picking up the tab. So, I applied to Virginia. And, Steve, they admitted me.
SW: So, were you scared?
EJ: You know what helped me? The fact that I had been in Turkey for two years. You don’t get a culture more different than the one I was used to, coming out of the segregated South dropping into the middle of Muslim Turkey. So, going into Charlottesville was not easy, but it was all in context. I was more equipped to handle the difference. And there were six women and me, seven of us. Six white women and me. And undergraduate school was all white male. This is 1967 because women did not get admitted to the undergraduate school until 1970.
There were five African Americans. I was the first
African American woman admitted there.
I didn’t know what was race and what was gender discrimination—what I was getting. Because it was coming at us from every classroom. The discussions, the hypotheticals, everything. So, sitting in the ladies room with my six white sisters, sitting there listening to them talk about their experiences, I was trying to figure out what was gender, what was race. Whatever was left over after their discussion, I realized, was race.
SW: Where did you live?
EJ: I was very fortunate. There was a student from Taiwan who was getting her masters in law. And we became roommates. So, that solved the housing problem for Virginia.
SW: Off campus or on campus?
EJ: No, no. On campus. They had housing. One dormitory for all graduate women.
SW: But not segregated.
EJ: No, because I was there.
SW: I read the story about the dean’s secretary . . .
EJ: Oh yes, I was sitting in the ladies room, first year—first week, first year. Books, law books. And I was just appalled at the size of the texts. I was trying to figure out how much reading we had to do per night. And I was sitting there on the sofa because the ladies room was the only place we could congregate. And this woman came through, and she was what, late 30s, early 40s. And she was as nice as can be. She said, “I know you are taking your rest break now, but when you are finished, would you mind cleaning out the refrigerator?”
And people have said to me subsequently, “Elaine, you are fiery. Did you just get in her face and say . . . No!??” It took a few seconds for me to realize what she was saying, that she was addressing me. She was gone by the time I realized it. And I said, “She thinks I’m the lady to clean up. The cleaning lady.” And I’m sitting there, the books didn’t matter. All she saw was race. I’ve tried to really see the other point of view on this one. And she was wrong; however, she had never seen an African American woman in the law school as a student. The whole thing was so eerie; it never crossed her mind that I could be a student. So, I said nothing to her, and later she realized I was a student. She was shocked that she had done that. And I tell people, it is true, there was nothing I ever wanted from the dean’s office that I didn’t get (laughing).
SW: So, what were you thinking you would do with a legal career?
EJ: Well, you know, I never had any money. I had a contracts professor . . . I don’t remember his name. He left after the first year and went to Nixon’s law firm—Mudge, Rose, Guthrie & Alexander. Nixon was president then, so they had removed Nixon’s name from the Firm. And my contracts professor persuaded the Firm, during my third year, to invite me up to New York for an interview. And I went up and interviewed. Oh, I was . . . you’re talking about frightened. You’re talking about an alien environment. I mean, I was scared to death. But then I said to myself, “Look. Just go in there. It is what it is.” Went in that interview, and lo and behold, they gave me a job offer. $18,000 a year. Big money in 1970. I accepted. This was November.
SW: Of your third year?
EJ: Of the third. And then you’re supposed to be happy when you get a job offer. I was not happy. I mean, Christmas I went home for the holidays, I couldn’t even look at myself in the mirror. And I kept saying to myself, “You went to law school because you wanted to litigate cases. You wanted to be a civil rights lawyer. You’re going to be carrying somebody’s briefcase up there. And I don’t know how that firm is going to help you develop into the kind of lawyer you want to be.”
So, finally I decided when I came back from Christmas break that I was going to decline that offer. I had accepted it already, but I was going to tell them I had changed my mind. And I went to see the dean, who was Monrad Paulsen, and he said, “I understand. And I’ll help you.”
He did so by calling his friend— [NAACP Legal Defense Fund Director] Jack Greenberg, and I went up to New York for the interview; Jack and I had a 15-minute conversation, and he hired me.
I learned a value system very helpful in practicing law. How you should think about legal issues. Virginia had the honor system. Integrity in your dealings. J. Harvie [U.S. Court of Appeals Judge J. Harvie Wilkinson] and I are classmates. And there is a lot that we have disagreed on. A lot. However, we are always glad to see one another. Always pleased to see one another. And I used to pooh-pooh that whole civility notion. I really did. When I had dashikis and sandals, I dismissed the emphasis on civility. However it does matter; civility is important. It matters how you discuss things. And you can disagree on principles, however remain on the principle. Principled disagreements should not become personal. Differing points of view should not be confused with judgments about the quality and integrity of the individual with whom you are speaking. This is easier preached than practiced, however I took this lesson from my legal education at Virginia.
SW: Okay, so you went to work for the Legal Defense Fund. You moved up to New York.
EJ: Moved up to New York, and Jack had hired me in the death penalty project. There was a core death penalty staff, small and dedicated. Our program head was the best of the best, Tony Amsterdam [Professor Anthony Amsterdam, leading death penalty strategist and law professor at Stanford and then NYU]. There were three of us who constituted Tony’s death penalty staff at LDF. And to come out of law school and have Tony Amsterdam there, it doesn’t get better than that, Steve. And we were in the throes of Furman [Furman v. Georgia, 408 US 238 (1972)] when I got there. So, Tony assigned me the job of looking at the death penalty statues in all of the fifty states and succinctly summarizing all of the statutes and interpreting their meaning in three or four sentence so that we could have a handy quick reference. Meanwhile, there were other death penalty cases in the mix. The theory in practice at LDF was the cooperating attorneys would try the cases, and we would argue them on appeal. And so, my whole docket the first two years were death penalty cases.
However, I also served as co-counsel at trial in several death penalty cases. The reason I started trying cases is we had one case which, kept coming back to us with some error in trial. And I thought, “This person shouldn’t have the death penalty to begin with. Maybe if we got in there at the trial level, we can get this case off our docket.” I’ll never forget that case. The Supreme Court heard it three times. Johnny Daniel Beecher. [Beecher v. Alabama, 408 U.S. 234 (1972)] And so, U.W. Clemon, who became chief judge, and I litigated those cases together.
SW: In Alabama?
EJ: In Alabama. Because a lot of my work was in Alabama. And Georgia and Florida. And we had to develop a trial strategy because of the rampant jury discrimination against blacks serving on juries. One could never get a jury with at least three black people on it—you’re lucky to get one or two blacks on a petit jury. And what happens, when we got one black person back there, that person usually became overwhelmed back in the jury room. When you get two, it is the two of them against everybody else. At that time you needed three black people in order to give them the strength they need to stick together in these racially tinged prosecutions. So, my strategy was, in selecting the juror, if there was a black Vietnam vet, I wanted him. I needed that black, and usually that is who I got. I got one on there. And in closing arguments, I ignored everybody else. And my argument was for him. I said, “Every one of your votes count. If anyone of you is not convinced of guilt beyond a reasonable doubt, you have every right to dissent. Everyone must make up his own mind. Nobody can force you to do anything. And each of you is an individual. Listen to the law as you are charged by the judge and you determine what the facts are, what you believe and what you don’t. However, your mind is your mind, and this verdict to give him any punishment must be u-nan-i-mous. That means all of you. So, if one of you disagrees, that is your right. Hung it every time. They hung it every time I said it. And I had at least five of those cases, where they hung it every time. So, that worked for a while.
SW: Was it difficult being in Alabama and other places?
EJ: Yes. Yes it was because they hadn’t had black women. And the bailiffs would come up and tell me to move. I’m sitting t at counsel table and they would say, (tapping on table) “These seats are for the lawyers. What are you doing here? Get up and move.” But a lot of judges were absolutely in awe of me. Because they had never seen anything like it. They didn’t even know I could move, walk, talk, think. And while they were in awe, I was busy trying to assess my situation and to make a favorable impression, on the jury. So, I used the judge’s surprise to the advantage of my client. And then, U.W. and I, both of us showing up together, were quite a team. We covered Alabama.
So, when he was up for the confirmation [U.W. Clemon was nominated to be a federal judge in Alabama in 1979 and retired in 2009 after becoming Chief Judge], and it was the longest confirmation fight, I think his actual hearing was longer than Thurgood’s because he was the first black judge down nominated in Alabama. It was a civil rights showdown.
. . . wasn’t qualified. And I knew because he and I had tried the cases together, I knew what he knew. And that was the first time they were really putting civil rights lawyers on the bench because the ABA had the view at one time that civil rights lawyers couldn’t ascend to the bench because their practices weren’t complex enough. They hadn’t handled antitrust cases, or, in their view, commercial cases. That was the view. Too many lawyers think their specialty area is the most important. This was in the late ’70s when Jimmy Carter was president. At that time, the ABA just did not get it t. Eventually, the Association became more enlightened and they did get it. However, it took a while.
SW: When did you start getting into employment discrimination cases?
EJ: After Furman was decided in ’72. And I continued on death penalty cases. We had all these employment cases backing up because of the important role the LDF was playing in getting the courts to interpret the statute.
So, the Title VII people, said, “Elaine, you need to continue taking these death penalty cases, however, we need some employment help as well.” Therefore I became a part of the trial team in some major class action Title VII cases: Patterson vs. American Tobacco down in Richmond. Albert Bryan Jr., [Judge Albert V. Bryan Jr. served as a federal district judge in Virginia from 1971 until he assumed senior status in 1991] Patterson was his first civil rights case. He had just gotten on the bench. It was a major class action against American Tobacco, and they had rigidly segregated jobs.
And Henry Marsh, John Scott and I were the team that litigated that case, that tried that case. We said, this case is going to be the education of Albert Bryan. That is what we planned to do: This is his first civil rights case and our plan was to draw him a roadmap. We were not going to prejudge anything. We’re going to let him see the facts. So, we had to do our homework since we have to paint this picture so he can see clearly what is going on.
I’m telling you, we had this trial, and it was a long one. It was not going to be easy taking on the tobacco industry in Richmond. And we won that case at trial. And I could see Albert Bryan growing in his understanding of racial injustice because his mind was open. Somehow, it became open. He had just gotten there. It was so palpably wrong what was happening. And then he had this new law to apply.
And then we had one against Monsanto in Pensacola, same type of issue. Major class action.
And then the big one was Swint. It was interesting. I lost Swint in the Supreme Court [Pullman-Standard v. Swint, 456 U.S. 273 (1982)]. It is so interesting. I lost it, but the court was right on the legal issue, because the question then was a procedural issue. What is the standard of review for the appellate court in reviewing findings of fact of a district court judge?
SW: Did you get to know Thurgood Marshall?
EJ: Thurgood Marshall was not a personal friend. I got to know him, I think, fairly intimately through his wife, Cissy, and through LDF. I cannot say he was a friend. No, he was not. I knew him, he knew me. I loved and respected him.
When Thurgood received the first Thurgood Marshall Award from the ABA, I was on the ABA Board of Governors. And the ABA assigned me to Justice Marshall to take care of all of his needs and everything during that trip, and I did that. As a Justice of the Supreme Court he kept his distance from LDF. He didn’t get involved. He didn’t have anything to say to any of us. He played it by the book.
SW: Did Thurgood inspire you in any particular way?
EJ: I quote a Swahili warrior song that I love which says, “Life has meaning only in struggle. Triumphs and defeats are up to the gods, so let us celebrate the struggle.”
And what our staff, I think, understands is the struggle. Brown was a 25-year struggle from 1929 when Charlie Houston went to Howard and Thurgood and Oliver Hill were in Houston’s first class as Dean of the Law School, all the way up to 1954. So, they laid the groundwork. It was interesting; when Charlie Houston died at 54 in 1950 (because his heart gave out, he worked himself to death,) that is when Thurgood and the team filed all of those State Brown cases. Houston had filed the DC case before he passed, so the DC case was pending. However, at the time of Houston’s death t the rest of the cases had not yet been filed. All of them were filed immediately after Charlie’s death. . . . So it was as if Thurgood and the team were energized by Houston’s passing and were determined to do something to show that Charlie’s life and his strategy mattered.
And that is the way, I think, LDF functions when something adverse happens to us, for example McCleskey [McCleskey v. Kemp, 481 U.S. 279 (1987)]. We felt
McCleskey was a disaster. You don’t make a better record than that. The Supreme Court wasn’t willing to go where the record led them re the disproportionate impact of race on the imposition of the penalty of death and to have Justice Powell say what he said about McCleskey. McCleskey was a 5–4 case with Justice Powell voting against our claim. And, I understand, at the end of his life Justice Powell indicated if he had to do it over again, McCleskey was the one vote he would change. And so it should have been 5–4 the other way.
So, what happens is you get energized and it goes from generation to generation. These victories don’t come easily, and when they do come, they can be taken away as quickly as you gain them because courts interpret the law and courts change. What is helpful now if Thurgood Marshall is right and Jack Greenberg is right—the political side, the legislative side—when Congress passed that 1976 law about nonprofits being able to get involved in political activity, legislative activity, without jeopardizing their tax-exempt status, that was very important. And that enabled us to also get involved in a limited way in the legislative side of things. So, that too makes a difference.
Also, our information, [and] public education requirement that is, in our charter, helps us to go out and educate others and explain. We do not only have to be lawyers, we have to be able to communicate with people, with rank and file people, on what these issues are and what they mean. If you cannot do that, you can never be a complete LDF lawyer; you have to be able to stand in front of the Supreme Court and make your arguments, as well as in front of a Baptist Church down in Tuscaloosa, Alabama, and explain what the issue is in language that the people can understand the importance of the issue.
SW: You had to have had a fairly fearless spirit to go off to Turkey, to go off to UVA Law School, to go try cases in Alabama, later to testify against Rehnquist, to testify against Brad Reynolds, to oppose the nomination of Harvie Wilkinson. Are you fearless?
EJ: No. However, there is a saying that courage is fear that has said its prayers. I have just as much trepidation as anybody else. But I’ve also learned you cannot live by fear. Fear keeps you from acting. Fear inhibits. I know you’re supposed to be cautious, you’re supposed to be careful, you are supposed to do all of those things. However, when you are really trying to advance an agenda of fundamental rights and equality for people, you’ve got to go boldly forth. And then to be given the honor of the head of an organization like the Legal Defense Fund, trying in my own way to fill Thurgood’s shoes, and Jack Greenberg’s, and Julius Chamber’s shoes (my predecessors at LDF), you’ve got to walk boldly forth.
You’ve got a staff that is looking to you. You have donors that believe in you. You have a community that is depending on you. You’ve got to act. And your motives have got to be the best interest of your community as you see it; you’ve got to keep your eye on the prize. You’ve got to be clear as to what your mission is, what you are there for. So, even when you have your negotiations and your discussions and your compromises, and you will have them . . . you will have a lot of them, you will also know what to compromise on and what not to because you know what the fundamental values are.
For example, the fight about the division of the Fifth Circuit and the creation of the Eleventh Circuit was fundamental to the movement. Those brave judges down there day in and day out were fundamental to protecting the rights of so many who had been excluded for so long. So, you cannot allow the Fifth Circuit to be gerrymandered. You simply cannot do it.
And, I was brand new to the all new terrain down here in Washington when the issue arose in 1977–78. However, in the Senate I went to Ted Kennedy with the issue, who quickly understood. I needed a strong supporter in the House, and I went to Barbara Jordan who came from out the Fifth Circuit (Texas), and she immediately understood. So, we knew there were some things we had to accomplish. And my position initially, of course, was no split because the Ninth Circuit was bigger than the Fifth. However, I knew I would have to give on that, because the Fifth was going to split because of the political winds. The question, however, always was how it was split. So, I stayed on “no split” for eight months. I never got out of that.
And it was only at the very end, almost a year into the stalemate, that I let somebody persuade me that possibly the Circuit had to be split, which was a huge compromise (laughing). But then I could negotiate on the split itself, rather than on the way it was to be divided. All I wanted was for Mississippi to be where it should be, with Louisiana and Texas. From Day One the pro-splitters wanted to create a two State circuit which would have been the only one in the country. We are all fortunate that Ted Kennedy and Barbara Jordan stayed the course.
SW: Let’s talk briefly about your going off to work in the Transportation Department and Bill Coleman.
EJ: Now that was a mentor of mine, and is a mentor. I love Bill Coleman. Bill was chairman of the board of LDF when I came. Gerald Ford had made him secretary of transportation in March [1975]. Bill called me in the New York office and said, “Elaine, I want you to come to Washington and be one of my two special assistants.” So, I came to Washington. And Bill taught me a lot. He called me in his office one afternoon and said, “You are walking around this department calling these males (all of whom were white men, e.g., the head of the FAA and Highway Administration) “Mr.,” “Mr. this” and “Mr. that.” “They are calling you Elaine.” He said, “I want you to learn everybody’s first name and use it.” He said, “I know you are southern. I know you are polite.” He said, “You are my special assistant. I can’t have them calling you Elaine and you are calling them Commandant. Whatever their names are, you learn them. And not only do you learn them, you use them.”
And then the secretary decided he wanted women to go in the Coast Guard. Bill had public hearings on everything. He decided women were going in the Coast Guard and to the academy. And he told me, “I want you to tell the Commandant that women are going to the Coast Guard, and so he has to start making whatever arrangements he needs to make that happen.” Then there was the separate issue of women going to sea. Again we were able to solve that one in favor of equality. However, we had a lot of issues. I remember the civil rights division of transportation was doing absolutely nothing. And we had to tackle and resolve that issue.
SW: So, did you stay ‘till the election?
EJ: Yeah, I stayed ‘till the election. And then came back to LDF. That is when they expanded their DC office. I came back to LDF and came into the DC office. And that is where we started our legislative efforts. Still had cases, because the rule in the DC office was we don’t [have] more than one LDF; there may be a Washington and New York Office, however there is one LDF, so therefore, there is one program. So, I still had employment cases. But the legislative stuff became important.
SW: So, you started working on judicial nominations?
EJ: I still maintain that President Carter had the best record of judicial appointments. Now, I think President Clinton appointed more, and he had a very good record, clearly a good record. But Carter had the best record, recognizing the importance of diversity on the courts and quality in only one presidential term. And he understood how to do it. You look at all those appointments through the Carter administration. And we had to fight. We had to fight. And that is where I met . . . many of the senators. Senator Kennedy always kept one of the best staffs on Capitol Hill. And Breyer [Stephen Breyer, later a Supreme Court justice] was over there then, Ken Feinberg was with Kennedy at the time. That is when I began to meet many of the Senator’s very able staff.
I miss him because Senator Kennedy understood the value of inclusion and diversity. He understood it. And whenever I had an issue, if I ran it by Senator Kennedy, and Kennedy didn’t buy it, I was dead in the water. I knew it. I knew not to even go there (laughing). If I couldn’t get Kennedy to see where I wanted to go and to support it, then it wasn’t going to happen.
EJ: Not only was the appointment of judges significant, equally as significant was where the judges came from. What the nominees have experienced is very important. Everybody doesn’t have to be a sitting judge to go up to an appellate court, and I believe that today. I think that is one of our problems in the composition of the judiciary. If you are smart and able, and have not been a sitting judge you should not be excluded from serious consideration on our appellate courts. We’ve narrowed, we’ve limited the conduit that flows into our courts, and we are paying the price for it. In my view, the courts, especially the appellate courts have become too insular. I believe there is overrepresentation of some law schools, academia and lower court judges. In my view, being a state judge is no greater qualification for a federal appellate vacancy than being a very able practitioner or litigator. Where is the representation on the appellate bench of the practitioners, those with political experience, those from government service and public officials, whether elected or appointed? When I say diversity, I’m not just talking about gender and race, although that representation is nowhere near what it should be. I’m talking also about experience, and background. Diversity of viewpoint and experience is especially important on our courts, since federal Judges are appointed.
President Jimmy Carter came into office with an appreciation of the diversity needed on the federal bench. And he set out immediately to add to it. He understood and acted immediately. He also understood the importance of mixing it up. He reached out to women in a very serious way. He reached out to African Americans. He thought that civil rights practitioners had something to add to the federal bench. Jimmy Carter thought that and acted on it. He also had a thorough understanding of the importance of the courts. And for the Courts to have the legitimacy they need in order to be respected, they must on every level be fully diverse. Coming out of Georgia, he understood it.
SW: So, after Reagan was elected, how soon did you know that it wasn’t just going to be business as usual?
EJ: Oh, right away. Because we had followed Mr. Reagan out in California. Reagan had a whole different game plan. I mean, you had to toe the mark to get through Meese and company. And it was so unhealthy for the judiciary. It was so unhealthy. And we had the Voting Rights Act—it was about to expire. ’82. We got ahead of them because we were doing our homework. Soon after the election, we started getting ready for hearings on the House side. And so by the time Reagan became President, we were geared up. Because we had to get that act extended. And before, the act had been extended in fits of 7 years, 5 years, 10 years. Short periods. And, we determined we’re going to go for the gold. We’re going to get a 25-year extension if we can. However, Mr. Reagan’s Justice Department sat out the House hearing letting us develop a record. We made the record. And when we got to the Senate side, the issue that the administration fought was intent versus effect. That was the whole issue in the Senate for them. However, the record had already been made.
SW: What do you think made you effective as a legislative advocate?
EJ: Working in coalition. Knowing how to work with your sister organizations and how to arrive at a meeting of the minds. We had many of disagreements among ourselves because we had some tough issues. And we had to iron those things out. We couldn’t go with a divided front up on the Hill. For example, a big problem with the ’75 Voting Rights Act was that the African-American community made the mistake—I don’t know if it was the community, but some of the organizations—the organizations representing the community made the mistake of not embracing the Latino language issues in voting. And we did not make that mistake in ’82.
And so, it is getting around the table. And you have to have constant discussion. Constant dialogue. And then, you have to show a certain toughness when you go to the Hill. You have to know when to compromise; you can’t be rigid, but you’ve got to have a certain toughness. And you’ve got to reach the legislators at home in their districts, not here in Washington. You had to have people go to the district office explaining why this is important to me.
SW: I think, also, is it fair to say that you stayed behind the scenes during all those years you were running the DC office?
EJ: Yes, right. Because why should I be up front? I have always been concerned about the issues, not about cameras. That cuts against what you are trying to accomplish, when you become the issue. I always wanted the issue to be the issue. I’ve always stayed behind the scenes. It is not about me. And I was able to get more done. I was able to talk to more people. I had greater access.
SW: How about some of the other legislative fights later on, the Civil Rights Restoration Act?
EJ: Oh yeah, now that was major. That was a situation where the Supreme Court through a series of procedural rulings in the late ’80’s had limited the reach of one of our most important civil rights statutes, Title VII of the 1964 Act which provided for nondiscrimination in employment. The Restoration Act negated the rulings in more than a dozen Supreme Court cases and restored the law to where it had been and made plain congressional intent. The Bill was vetoed the first time by the first President Bush. And we had to go back and start all over again, which we did, and brought it back to the Administration the next year and it was signed. That is unheard of, but we did it. Because, Steve, we’ve also learned this—when I say “we,” I’m talking about the community, not just me—there is a time to get something done, and if you miss that time, you really hurt yourself because then you may be looking ten to twelve years down the road before a subject is revisited.
We knew for that Civil Rights Restoration Act, if we were going to get that Bill signed into law, we needed to revisit the issue right away. Congress understood the issue and was prepared to take it up again. Also failure would have been the end of employment law as we know it. It really would have been the end.
SW: You’ve talked a couple of times about public education. It seems to me that is an interesting example because the underlying issues were incredibly complex: employment discrimination, burdens of proof, and burdens of persuasion.
EJ: That is right. They were all legal issues.
SW: So, to turn that into an issue where there is public support and public interest?
EJ: We had a lot of cases we had won. You take a worker from Monsanto, or a worker from the tobacco company, or a worker from any of these industries that we had won and let them come to the town hall meeting and stand up there and explain that if the Legal Defense Fund didn’t have the tools it had, my (employee) career would have been completely different. I wouldn’t have the job I have. Let the crowd see the working people like themselves explain the benefit of the law Show them by example the benefits of a good law fairly applied. You’ve got classes of hundreds and hundreds of people. Let’s get three or four of them to travel and address the town hall meetings. So, you’ve got to make it real to folk. Bring in people like them, and let them in their language and their way explain what is at stake.
SW: So, the next era, when you become the director?
EJ: Yes, director counsel. And Thurgood created that name, director-counsel. Director from Executive director, and counsel from general counsel. He hyphenated it and made it director-counsel.
SW: Saving affirmative action becomes a major goal?
EJ: Oh yeah. When Mr. Clinton became president, there was an attack on the executive order because opponents were trying to get rid of all fairness and gender and racial diversity in contracting and employment at That was major because of the huge amounts of contracting and other dollars at stake, If women and minorities in business do not have a meaningful opportunity to be hired and get business that all of our tax dollars finance, the system is broken. That was a major fight. When President Clinton came out with “Mend it, but don’t end it,” which kept the inclusion principle in place, that was huge. After we got that, those who opposed inclusion then started in the courts challenging admissions and other inclusive policies of educational institutions all across the country. And the idea then was to have an agenda. Just as there was a strategy in Brown vs. Board, and early on the strategy was: you only want in the Supreme Court of the United States a fully litigated case in which a district court has made findings of fact and hopefully, there is a court of appeals decision which you have won below. That is what you want. You want two courts having decided the issue en route to a Supreme decision. You do not want to be in the Supreme Court of the United States on an issue like this on a summary judgment because it is best to have had some fact finding below.
And so, we had all these cases. Everybody is trying to get to the high court. So, the court is being bombarded with cases. And we knew the case to be heard was Michigan. First that is where the resources were going to develop the cases. You had both the graduate and the undergraduate schools. Ted Shaw, my deputy at LDF had helped draft the Michigan Law School Program. So, we knew it was a tight program because he was teaching on the faculty at the time. He tried to get to the undergraduate, get them to change their admissions program. They wouldn’t do it.
And, then there is Piscataway out of New Jersey. Piscataway was a summary judgment. There is a nice softball lobbed to the Supreme Court of the United States. They would have hit it out of the park. Michigan would not have been necessary. Summary judgment. And when one looks at the facts of Piscataway, my view was: I don’t know which teacher should prevail—the white teacher or the black teacher. The white teacher makes a compelling case, solely because of her race, you tell her she can’t get a promotion? I’ve got a problem with that. So, if I have a problem with that, what do you think Justice Scalia is going to do? Fortunately, Piscataway settled.
SW: So, what do you think is your legacy?
EJ: I don’t know that I have one yet. I still want a few more years. I’m working on a project now that is very important to me. It is the ABA project started by ABA President Steve Zack and fully supported by incoming President Bill Robinson. Ted Olson and David Boies are co-chairing. It is a task force on the preservation of the courts. And you know, I don’t pay a whole lot of attention to taskforces, but when they asked me to join this one last year, I did. And I’m glad I did. I really am glad I did.
Olsen and Boies are very serious lawyers. They are very good. And they are doing their homework, which is what I like. And this taskforce is looking at what is happening to the state courts across the country with the cost cutting and the miniscule draconian budgets under which most State courts are operating. I care about social justice and human rights issues, which means I must also care about how the justice system and our courts function. In order for us to do anything, we’ve got to have this third branch of government fully functioning. And, it is a wake-up call when addressing federal needs Justice Roberts said, “Look, do whatever you want with ideology, but give us some judges.” They’ve got 100 vacancies, Steve, in the federal courts. How do you function?
SW: Right, you can’t function.
EJ: And then you have budget negotiations, and the judiciary doesn’t have a seat at the table. That has to change. However, it will only change when the public gets engaged. We’ve got to understand our civics. We’ve got to understand the critical role of the courts in a constitutional democracy.
It is amazing what is going on in the states. And so, I’m up to my ears in those issues now: being part of the hearings, asking questions, doing my reading, and learning from the witnesses and other task force members. I spoke two weeks ago to the women judges of New York State. There are 1,200 state judges in New York State, of which 400 are women. So, they are a third of the judiciary. They had a conference and there were a couple of hundred of them there. And I spoke, I was their keynote, I spoke about this issue of the courts and that our job has been as women to get more women, but right now, in addition to that we have to help the court system secure the resources it needs to serve the public.
So, that is a big issue for me. And it is a timely issue. The courts in Georgia enjoy .8 percent of the overall budget; the whole court system is eight tenths percent of the budget. And you are going to cut that. So, it is the same story all over. That is the problem of our time that we as lawyers have to help solve. And we can’t do solve it by merely talking to ourselves and talking to other judges. We have got to talk to people, I believe. We have to talk, to explain, to people what this means in your life. And we’re not doing a good job of that.
SW: So, last question. Is America post-race?
EJ: Do I really have to answer that (laughing)? That is rhetorical.
There are a whole lot of issues on this race question. But what is happening on the issues of race are also happening across society as a whole, and we aren’t seeing it. Because when we look at race, our view becomes clouded.
I’m looking at the whole issue of education. Now, there is a race problem in education, but there is a general problem in education that affects everybody. And that is the way I want to talk about it. Because if we don’t get on top of this issue and get on top of it now with our pre-K kids going all the way up, the future is not bright for us the way it can be. Because Americans are a creative, energetic people, however, we have to have the tools. Our minds have to be trained. And what is happening is we are treating education in this country as a commodity: You will get what your money can buy. Every child should have access to a free, public, quality education. That must be the right of every child. I don’t care if you are pink, yellow, green, black, white, orange, or blue. I don’t care what color you are. You are entitled to that free public quality education. We are very busy educating some of our children and ignoring the rest. We have much work to do. And we must begin with our own attitudes toward how we treat and respond to difference.
So, certainly we can talk in terms of yes, Latinos: 77 percent of Latinos are in one-race schools, and 72 percent of blacks are in those schools, and the whites in public schools, 80 percent of them are in non racially diverse settings. . . . We can talk about those numbers, but I’m talking about what is in our national interest. Quality public education. Now, sure, diversity is a part of quality. What we have to do is understand as a nation that we cannot survive and keep our edge if I am only concerned about the quality of education that my child gets. That is much too narrow a focus. It is much too myopic. I have got to be concerned about other children, because that is what makes a nation. And I don’t know what we do to have the conversation we need. We need a game-changer in this whole thing. And so, I prefer to discuss this subject in the context of our national interest. Too often, it is the circumstances under which you are born which dictate your opportunity in life and where you live that determines your access to quality and the educational benefits you receive. That ought not be.
How at least we can get the discussion going because I don’t think there is an awareness. The word “education” is not in the Constitution of the United States. It doesn’t appear there. Quality is fragmented all over the states. We’ve got to figure a way to change that. If we don’t change that, job creation is going to be increasingly difficult.
The jobs of the future require a certain knowledge base, certain exposure. The ones who perform the jobs, in this new age in which we’re in, have to have the capacity to reason and think and act. Right now, we have much work to do; however, we can, and must, turn it around.