Sandra Day O�Connor

							Perspectives Magazine – Fall Issue 2005 – Vol. 14, No. 2
Featured Articles:

Sandra Day O’Connor: The Center Vote That Counted

Women Lawyers on TV Moving Closer to Reality

When Women Lawyers Act, the Violence Lessens

Voices-Passion for a More Perfect Union: Removing Barriers to
Equality and Opportunity

Careers-Insider View, Outsider Role: Marcia Greenberger


Sandra Day O’Connor
The Center Vote That Counted
By Hannah Hayes
      When Supreme Court Justice Sandra Day O’Connor was appointed by President Reagan in
1981, she was hailed as “a person for all seasons.” While the right-wing Moral Majority feared she
would be overly concerned with “issues linked to feminists,” Democrats worried she wouldn’t go far
enough. Sen. Joseph Biden (D-Delaware) went so far as to say, “You have the obligation to the
women of this country to speak out [on equal rights issues].”
      In the end, no member of Congress had any desire to impede the first female justice to the
highest court in the land, and she was approved by a vote of 99–0.
      Twenty-four years later, O’Connor has proved to be no less easy to read. A minimalist, she is
concerned with judging each case on its own merits, reluctant to overturn precedent yet outspoken in
her opinions.
      “There is hardly an area of the law that Justice O’Connor did not significantly affect,” says
Joan Biskupic, who has covered the U.S. Supreme Court for 24 years for The Washington Post,
Congressional Quarterly, and now USA Today. “She became the architect of the Supreme Court’s
rationale on abortion rights, affirmative action, the death penalty, and the line between church and
state.”
      Although O’Connor herself often emphasizes that her vote is only one of nine, her centrist
perspective ultimately made her vote the decisive fifth vote in cases directly affecting women’s
education, employment, and reproductive rights. According to Biskupic, whose book on O’Connor is
scheduled for release this year, O’Connor came to the court “knowing how to count votes.”
     “The divided court—and divided nation—played to her strength as a consensus builder and
gave her more power behind the scenes than some of her male colleagues had,” Biskupic says. “She
always kept her eye on state legislatures and public sentiment.”
     However, although her vote upheld the right to privacy and reproductive choice, affirmative
action, and disability rights, her economic conservatism often placed restrictions and imposed high
standards for implementation. She has agreed that women have the right to bring a sexual
harassment case to court, but she made the conditions for that happening extremely limited. She
voted to uphold provisions of Roe v. Wade as precedent, but her opinion questioned the validity of
the 1973 decision as written.
     “Her propensity has been to write narrow concurrences that may undercut the broad sweep of
the opinion, but the bottom line is she has been relatively favorable to women,” says Martha Davis,
associate professor of law at Harvard University. Davis has argued several cases before the Supreme
Court concerning women’s rights.
     O’Connor’s middle ground in cases like the 1993 Planned Parenthood of Penn. v. Casey, which
limited abortion by requiring a 24-hour wait and spousal consent, is an example. Because the law
had no provision regarding the state of a woman’s health, O’Connor proclaimed espousal consent
would be an “undue burden” on the woman. “We would have liked a broader opinion of that, but
[her decision] ultimately meant that the effort to further restrict abortion was held off for the time
being.”
     “O’Connor seemed to capture the center of gravity for women in the culture,” says Anne
Coughlin, professor of law at University of Virginia and board member of the National Association
of Women Lawyers (NAWL). Coughlin also sits on NAWL’s Committee to Evaluate Supreme
Court nominees. “You could count on her to approach things with an open mind. You may have
thought she did not go far enough, but she was able to put her finger on the consensus and bring it to
the center.”

      Roe v. Wade and Reproductive Choice
      The first inkling the country had into O’Connor’s judgment came in the 1983 decision in City
of Akron v. Akron Center for Reproductive Health, Inc. O’Connor criticized Roe, arguing that it
“cannot be supported as a legitimate or useful framework.” While acknowledging that Roe had now
become a part of society, she proposed a new standard that considered whether regulations
“throughout the entire pregnancy without reference to the particular ‘stage’ of pregnancy” are
“unduly burdensome.”
      This approach remained constant. In addition to Casey, O’Connor was in the 5–4 majority in
Stenberg v. Carhart (2000) when the Court invalidated a state law that criminalized abortion
procedures beyond the first trimester. O’Connor wrote the majority opinion, stating clearly that it
was vital to include provisions protecting the pregnant woman’s health.
      This issue is likely to be revisited during the next few years, says attorney Jamie Sabino, board
chair of Planned Parenthood League of Massachusetts. Three district courts already have overturned
the so-called “partial-birth abortion ban” passed by Congress in 2003. “This addresses exactly the
issues of Carhart, and within a few years it could be overturned with the change of just one vote,”
Sabino says.
      While Roe is not likely to be challenged directly, “reproductive rights and the legality of
abortion are clearly at stake,” says Jennifer Brown, vice president and legal director of the legal arm
of the National Organization for Women (NOW), Legal Momentum. Most of the recent cases that
have reached the Supreme Court impose restrictions and limit access.
     “These regulations disproportionately impact poor women, young women, women without
education, and rural women, and I find that troubling,” Sabino says.

      Affirmative Action and Discrimination
      Affirmative action is another area where O’Connor has made a difference, voicing support for
diversity in education and in the workplace. In Mississippi v. Hogan (1982), O’Connor took a strong
position supporting a charge of reverse discrimination in a nursing school. In a more recent decision,
Grutter v. Bollinger (2003) in which the Court upheld the University of Michigan’s affirmative
action policy, O’Connor wrote the majority opinion expressing the importance of diversity in
education.
      Two earlier cases exemplified O’Connor’s center-of-the-road stance in which she wrote her
own majority opinion following a 6–3 vote. In Johnson v. Transportation (1987), she explained that
her vote to uphold the affirmative action policy was based strictly on stare decisis, but she expressed
concern that the Court’s approach in this area was “expansive and ill-defined.” In Price Waterhouse
v. Hopkins (1989), she agreed with the Court that the burden of proof in that discrimination case
should be shifted to the employer, but she emphasized in her opinion that the issue should be decided
on a case-by-case basis.
      “I think she had a special sensitivity to sex discrimination issues,” Davis says. “That meant she
wasn’t a vote you could absolutely count on, but she was one you could expect to get.”
      “Having O’Connor on the Court strengthened and clarified equal protection,” according to
Andrea Kramer, attorney with Sullivan Weinstein & McQuay and adjunct legal studies professor at
Brandeis University. Kramer recently authored an article on O’Connor for the Women’s Bar Review
and moderated a panel discussion on the potential impact of the justice’s upcoming retirement. “She
is adamant that, even if the majority of women are one way and the majority of men are another, you
must look at individual characteristics,” Kramer says. “She believes that sex-based generalizations
just re-enforce gender roles, and she’s really strong on that.”
      O’Connor strongly dissented in Nguyen v. INS (2001), which upheld an immigration rule
making it harder for fathers to prove paternity to establish their children’s citizenship. “She talked
about the roles of mothers and fathers in a way that was quite feminist,” says Davis, who argued the
case before the Court.
      Kramer agrees. “Her dissent really does take the majority to task for not thinking of what it
means to be a parent,” she says. “Essentially they overlooked the parenting aspect and focused on
the formalist ways of establishing paternity, rather than accepting the fact that the father actually had
parented that child, and O’Connor saw that as a difference.”

      Sexual Harassment
      O’Connor voted in the majority in a number of 5–4 sexual harassment cases, although the
scope of the decisions has been criticized in some circles for imposing strict standards. O’Connor
authored the majority opinions in Gebser v. Lago Vista Independent School District (1998) and
Davis v. Monroe Board of Education (1999), which held that students can sue their school district
for sexual harassment only if “a school had actual knowledge of misconduct and responded with
deliberate indifference.”
      This, says Andrea Kramer, is where O’Connor’s moderating influence can be felt. “The Court
makes the standard very high, but without her vote, other standards might have won. The other four
justices in that majority probably wanted to do away with the cause of action altogether,” Kramer
opines. “But by agreeing to the cause, albeit with a high standard, they were they able to get their
majority. So in that sense, she was a moderating influence.”
     O’Connor also wrote the majority opinion for Jackson v. Birmingham Board of Education
(2005), another 5–4 decision, which held that Title IX permitted a federal claim alleging retaliation
against a whistle-blower who complained about sexual harassment against others.

      Family Leave and Health Care Services
      In a broader sense, health and family issues that traditionally impact women also have made
their way to the Supreme Court in recent years. In another 5-4 decision, the Court ruled that patients
have the right to an independent review of decisions in which payment was denied for health care
services considered not medically necessary (Rush Prudential HMO Inc. v. Moran (2002)). In the
2003 case of Nevada Dept. of Human Resources v. Hibbs, employees were granted the right to
challenge employers who violated the Family and Medical Leave Act by a 6–3 margin.
      Despite her position in these decisions, O’Connor’s conservative economic perspective made
her less sympathetic, and her voice and vote hit hard on some issues. In United States v. Morrison
(2000), O’Connor joined the conservative majority to strike down a part of the Violence Against
Women Act that would have allowed women to pursue civil actions for domestic violence.
      “Certainly there are cases where Justice O’Connor’s vote has impacted women in a favorable
way, and there are also cases in which Justice O’Connor’s vote tipped the balance in a way that, in
our assessment, was harmful to women,” Brown says. “She often voted to restrict congressional
powers, and that is an area that we think will be very important [in the new Supreme Court].”
      In many cases, O’Connor’s perspective and background as a professional, middle-class woman
came through, according to Wendy Parmet, a Northeastern University School of Law professor who
co-authored The Rugged Feminism of Sandra Day O’Connor. “She seems to understand biological
impediments that affect every woman, but I don’t think she understands how economics, class, race,
and other issues have a disparate impact.”

      The Case for a Woman Nominee
      As the first woman justice on the Court prepares to retire, the loss of O’Connor’s consensus
abilities, particularly on issues that affect women, has raised concerns.
      “What the loss of O’Connor represents is the loss of a steady, thoughtful judge [who employs]
a judicious approach to cases and one that is cognizant, really thinking about each case on its own,”
Coughlin says. “Also, her ability to strike the appropriate balance when there’s so much hyperbole
on both sides will really be missed.”
      Kramer agrees. “Even where O’Connor has voted with the conservative majority, it’s the
flexibility, and her sensibility to her decision and the moderation that comes through, that I think is a
loss,” she says.
      Many women especially have asked just how much O’Connor’s opinions were colored by her
experience as a woman. “Her approach in both Casey and Stenberg exemplify the perspective of a
woman who had born a child,” Parmet says. “In her opinions, you can see a woman’s voice and the
concern with the indignity [experienced by an appellant] of having to tell her husband” she wanted
an abortion.
      O’Connor often has asserted that a wise old woman and a wise old man will reach the same
conclusion. However, that view has tempered in recent years, and O’Connor has admitted it is
“helpful to the court to have nine members of different backgrounds and experiences and, yes, even
gender. We bring different life experiences to the task, and that’s a good thing.”
     “Part of it has to do with living as a woman in the real world,” says Renee Landers, who
teaches health and administrative law at Suffolk University Law School. She points out that former
Chief Justice William Rehnquist shocked conservatives by supporting the Family and Medical Leave
Act. “He had ‘an epiphany’ based on his own experience,” Landers explains. “He had been known to
leave work early to help his daughter with child care problems.”
     The possibility that decisions swung by O’Connor may re-emerge with a new, more
conservative Court on the horizon has raised alarms. O’Connor became a symbol for many women
during the last two decades. “Her loss is really momentous because of what a symbol she’s been for
the women’s movement, but also the symbol for the slow progress, the limitations on what we’ve
achieved so far,” Coughlin says. “And when a female face and presence is up there in that male-
dominated world, it means something, and she was the first.”

     Hannah Hayes is a Chicago area freelance writer.

Issues to Watch as the New Court Convenes:
     Although it’s difficult to predict exactly what issues will arise in the future, the number of 5–4
decisions during Supreme Court Justice Sandra Day O’Connor’s tenure has raised concerns that a
more conservative Court could radically change the course of history. Consider the following issues:

     Reproductive rights. On November 30, 2005, the Court will hear arguments in the case of
Ayotte v. Planned Parenthood (1st Cir. 2004) and will be asked to decide whether to uphold a lower
court’s decision to strike down a New Hampshire law requiring parental notification 48 hours before
an abortion procedure is performed on a minor.

     Parental and spousal consent, as well as the ability to offer information about abortion, already
have been narrowly decided and could be overturned. Further attempts may restrict access not only
to abortion but also to contraceptives for women on Medicaid or Medicare.

      Affirmative action. Although nothing specific is on the docket for 2005–06, a question that may
rise through the courts is whether the 5–4 decision in Grutter v. Bollinger (2003) upholding
affirmative action at the University of Michigan applies to gender, and whether the Court’s holding
may carry over to employment issues.

      Other potential issues revolve around the question of disparate impact and disparate treatment.
“Affirmative action has come under tremendous legal stress, and this critical issue will be back
before the Court,” NOW’s Jennifer Brown says. “Disparate impact is an important tool in
employment discrimination cases.” Brown points to Alexander v. Sandoval (2001), in which the
Court maintained there was no private right of action to enforce disparate-impact regulations under
Title VI, as reason for concern.

      Federalism and state law. Issues that could arise include states’ ability to place restrictions on
welfare and the right to travel. A more conservative Court could make it much harder for women on
welfare who are under physical threat and have no economic security. Similarly, restrictive decisions
could impact a teen’s ability to travel to have an abortion without parental consent and make it
difficult for women to collect child support across state lines.
      Privacy. Several cases concerning the government’s reach into private life could conceivably
come into play. In Lawrence v. Texas (2003), a narrow 5–4 majority ruled that laws against same-
sex sodomy violated the constitutional right to privacy. End-of-life issues similar to those presented
in the Terri Schiavo case may find their way into what conservatives are likely to perceive as a
friendlier Supreme Court.



Women Lawyers on TV Moving Closer to Reality
By Stephanie B. Goldberg
      Jill Goldsmith’s earliest recollection of a female lawyer on TV was Joyce Davenport—the
elegant, impassioned, and eloquent public defender portrayed by Veronica Hamel on Hill Street
Blues during the 1980s. “I looked at her and said, ‘I want to do that,’” Goldsmith recalls.
      After graduating from Washington University School of Law and moving to Chicago,
Goldsmith followed in Davenport’s footsteps, defending clients in 400 felony trials during a seven-
year period. Then she struck out for Hollywood, finding success as a writer for The Practice and
Law and Order. Drawing on her own experiences, she wrote scripts about a new generation of
women lawyers on TV that will undoubtedly exert the same fascination for young girls that
Davenport had on her.
      Goldsmith drew on her past for The Practice, tapping her early experiences of practicing law
for the paralegal-turned-lawyer character of Rebecca Washington (Lisa Gay Hamilton). When
Eleanor Frutt (Camryn Mannheim) won an acquittal for a drug user who was caught red-handed, her
impassioned speech was one that Goldsmith had used successfully in a similar case years before. “It
was a case where everything that could go wrong did,” Goldsmith says, “yet it was still possible to
have the jury look beyond the wreckage.”

      Portrayals of Substance
      Writers such as Goldsmith may be one reason that many of today’s portrayals of women
lawyers on television ring true in matters of style as well as substance. “I loved that moment on
Boston Legal when senior lawyer Shirley Schmidt (Candice Bergen) is walking down the hall at
work and stops a young woman lawyer,” says Rikki Klieman, a trial lawyer-turned-anchor at Court
TV and the author of Fairy Tales Can Come True (Regan Books, 2004). “She says to the woman
who is wearing a low-cut top and a miniskirt, ‘Are you a lawyer? Go home and change your clothes
and dress the part. We need women who appear the way a jury expects them to appear.’”
      The speech resonated with the kind of wardrobe advice Klieman has given women lawyers for
years in trial advocacy workshops. And she is more than a little pleased that Bergen—as a woman of
a certain age—is shown as being “talented, confident, feminine without being sexual and driven.”
She groups Bergen’s Schmidt with Lara Flynn Boyle’s Helen Gamble on The Practice, Angie
Harmon’s Abby Carmichael on Law and Order, and Susan Dey’s Grace Van Owen on L.A. Law,
and calls these characters great role models. “They’re good strategists, they’re highly competent, and
they’re always prepared,” Klieman observes. “They’re passionate about justice, and they have a
range of emotions.”
      If they have a flaw, it may be that they are too glamorous, notes Christine Corcos, a law
professor at Louisiana State University who has written widely about the image of women lawyers
in the media. “I don’t know how they manage to have those wonderful apartments and dress the way
they do.” But at least women lawyers are numerous. Writing in the Loyola of Los Angeles Law
Review in 1998, Diane Klein noted that 70 recurring female lawyer characters appeared on TV from
1952–1997.

      Playing to Female Audiences
      Klein and other scholars have pointed out that characterizations of women lawyers on TV are
far more positive than those on the big screen—undoubtedly reflecting the reality that TV audiences
are predominantly female. In a 1995 University of Toledo Law Review article, the late professor
Carole Shapiro of Touro Law Center in Huntington, N.Y., surveyed more than 20 films about
women lawyers in the 1980s and early 1990s and noted that the portrayals in film exemplified Susan
Faludi’s “backlash.” Successful professional women invariably had empty personal lives (e.g.,
Glenn Close’s Teddy Barnes in Jagged Edge and Greta Scacchi’s Carolyn Polhemus in Presumed
Innocent), while others were bumblers who couldn’t try a case without a man’s help (e.g., Cher’s
Kathleen Riley in Suspect).
      By contrast, women lawyers on TV are more well-rounded, by virtue of the hours of screen
time that writers have at their disposal to develop characters. Amy Brenneman’s lead character in
Judging Amy is challenged by her professional life as a juvenile court judge and her personal life as
a single mother in an extended family. She’s intelligent, vulnerable, and constantly endeavoring to
get things right. “She reminds me of the characters in Louisa May Alcott novels,” observes Terry
Diggs, an appellate lawyer and film critic who teaches trial advocacy courses at Hastings College of
Law in San Francisco. “It’s created by and for women.”
      “[Amy Brenneman’s character] has a big problem,” Corcos notes. “She has to neutralize her
professional status in her personal life because she’s a judge, which may be threatening to men. She
has to find a male who is her equal, but he’s got to be ethically upstanding, and she’s limited in the
places she can go to meet him,” Corcos says, noting that, as a female judge, the character can’t really
be a barhopper.

     Break-Through Characters
     Many see The Practice’s Eleanor Frutt as a break-through character because, as portrayed by
plus-size Mannheim, she defies the stereotype of woman lawyer as glamour girl. “One of the things
you liked about Eleanor was that she wasn’t the typical lawyer in a miniskirt,” says Star Jones
Reynolds, a former Brooklyn district attorney who hit it big as a television personality on ABC’s
The View. “It let you see that women of all shapes, sizes, and races contribute to the legal
community. I liked that a lot.”
     “In the 1960s, a woman who was overweight could be very much accepted into a group,”
Klieman observes. “When that era ended, the woman who did not fit into a traditional physical mold
was ostracized.” In her own way, Frutt suggests a return to the idealism and nonconformity of the
1960s, when thousands of women and men went to law school to practice public interest law.
     Goldsmith, who arrived at The Practice after the characters were fully formed, says that Frutt,
Gamble, and Kelli Williams’ Lindsay Dole were developed in the same mold as the men on the
show. “All of the characters were a blend of aggressive courtroom presence and emotional
vulnerability,” she explains. There were some conscious attempts to reverse roles, however. “When
Lindsay and Bobby Donnell (Dylan McDermott) first got involved, she was reluctant to be part of a
couple,” Goldsmith says.
     Yet, while these characters seem real, they present a skewed version of women in practice.
Klein analyzed the demographics of a group of women lawyers on TV and compared them to the
statistical profile of women in law. She found that government lawyers are “substantially
overrepresented while those in private and corporate practice are quite underrepresented.” African
American female attorneys are overrepresented, and Hispanic and Asian American women lawyers
are nearly absent. TV lawyers are more likely to be single and work for the government in criminal
law. They’re frequently drawn to nonprofessional men, Klein notes, and they have much lower
maternity rates and family sizes than do women in the profession.

      The Improbable Ally McBeal
      Many lawyers—men and women alike—don’t know what to make of the Fox network hit Ally
McBeal, which featured a flaky yet competent waif of an attorney (Calista Flockhart) in an
improbable law firm with its very own unisex bathroom.
      “I think lawyers resented Ally, not simply because of the [micro] miniskirts, but because she
really doesn’t commit to law. It’s something she just fell into when she followed her boyfriend to
Harvard Law School,” Corcos says. “Ally represents someone who never grows up. I kept watching
the show, waiting for her to grow into her career, and it never happened. She remained a fish out of
water.”
      Goldsmith, who wrote one script for McBeal, believes the show demonstrated “that
professional success doesn’t feed you on all levels; you can win a victory in court and still walk
home alone and lie in bed at night.” But unlike the backlash movies of the 1980s, which were
cautionary tales, Goldsmith sees the McBeal show as “a heightened reality, a different type of
universe.”
      There’s a danger in taking TV shows too literally, particularly McBeal, which Diggs describes
as being more about equality than the legal profession. “Every single episode I ever saw dealt with
balancing sex and gender: If women have the same amount of money and power as men, will we
also have unisex bathrooms? Ally calls everything women are supposed to want into question and
forces us to continually rethink those things,” Diggs says. “Like Legally Blonde, it’s a show about
integrating women’s differences, not rejecting them.”

     Stephanie B. Goldberg is a legal affairs journalist based in Chicago and is a former member of
the Perspectives editorial board. Her work has appeared in the New York Times, BusinessWeek, the
Chicago Tribune, and many legal publications.


When Women Lawyers Act, the Violence Lessens
By Ann Farmer
     Juley Fulcher, director of the Washington, D.C.-based nonprofit Break the Cycle, began
advocating on behalf of domestic violence victims while still a law student. Participating in
Georgetown University Law Center’s Sex Discrimination Clinic in 1993, her first assignment was to
represent a woman who had been held captive for four days by her knife-wielding boyfriend. The
victim shared an apartment with her abuser and feared that if she took her baby and left, she would
end up homeless.
     “The question was, who would get the apartment?” Fulcher says, citing statistics indicating that
domestic violence is the single biggest reason that women and children become homeless.
Complicating the case was the fact that the abuser’s name was on the lease. However, Fulcher was
able to prove to the judge that the victim regularly paid half the rent and therefore was entitled to
stay in the apartment.
      VAWA Reauthorization
      “Domestic violence often puts a woman in the position of having to decide between putting up
with abuse or putting a roof over her head,” says Fulcher, who continued to represent battered
women after law school, served for five years as public policy director for the National Coalition
Against Domestic Violence, and played a leading role drafting the legislation for the 2000
reauthorization of the Violence Against Women Act (VAWA) and for the 2005 VAWA
reauthorization bill currently awaiting final passage in Congress.
      As proposed, VAWA 2005 maintains the core judicial and policing programs that have made
the original 1994 legislation and its 2000 reauthorization bill so vital. But the new legislation goes
much further in dealing with the collateral effects of domestic violence, such as homelessness and
economic instability. This bill places a greater emphasis on victim assistance programs that, for
example, help battered women heal from trauma without risking their employment. The
reauthorization bill also better addresses the unique needs of such underserved communities as rural,
older, disabled, immigrant, and Native American women, who are twice as likely to be victims of
sexual violence than non-Native populations.
      The nearly $4 billion price tag also includes, for the first time, provisions to fund prevention
programs. “We know domestic violence starts early. We have to focus on young people,” says
Fulcher about Break the Cycle, which works proactively with youth from ages 12 to 22 to help end
the cycle of domestic violence.
      Altogether, Fulcher sums up VAWA 2005 by saying, “The new bill reauthorizes what already
existed and fills in the gaps.”
      It is estimated that one in four women in the United States becomes a victim of domestic
violence, dating violence, sexual assault, or stalking. As the nation’s leading anti-domestic violence
law, VAWA has made a huge difference for the survivors of those crimes, particularly in terms of
improving law enforcement’s response to the crimes and its commitment to prosecuting the
perpetrators. During the last 10 years, this landmark legislation has helped foster a National
Domestic Violence Hotline, the passage of more than 660 state laws to combat the violence, and
countless legal assistance programs. One such initiative is “one-stop-shopping”, which allows
victims to come to one place to file for a restraining order and receive other legal and advocacy
services.
      “Thanks in large part to the Violence Against Women Act, victims of such violence no longer
need to suffer alone,” said Lisalyn R. Jacobs, vice president of government affairs for Legal
Momentum, in recent testimony before the U.S. Senate Judiciary Committee. Legal Momentum
coordinates the National Task Force to End Sexual and Domestic Violence Against Women, a
coalition of more than 2,000 national, state, and local organizations that has led the push for VAWA
and each of its reauthorizations.
      Jacobs, who is the lawyer daughter of a preacher, says she feels a moral obligation to help those
who haven’t been as fortunate as she. “This is the first job that’s caused me to speak from my faith,”
says the prominent Capitol Hill lobbyist.
      VAWA 2005 received bipartisan congressional support, but time is still of the essence, because
the 2000 VAWA reauthorization bill expired on September 30. As this article went to press,
Congress had passed two different versions of VAWA 2005: the House passed HR 3402 on
September 28, and, by unanimous vote, the Senate passed S 1197 on October 4. The two versions
will now be assigned to a conference committee where the differences between them will be
resolved, and a compromise bill will be sent to each chamber for final passage. It remains to be seen
exactly which provisions will be included in the bill coming out of conference committee.

       Breaking New Ground
       Jacobs has been working for months to educate lawmakers about the new provisions of VAWA
2005. For instance, as proposed, the legislation allows for reasonable unpaid work leave to enable
domestic violence victims to obtain medical treatment, find a safe place to live, or go to court
without jeopardizing their job. “Access to greater economic security is equally essential to victims,”
she says. “Victims of domestic violence often become discriminated against in the workplace,” she
adds, describing a Plymouth, Massachusetts, newspaper reporter who was assaulted by her husband
over a weekend and left a message for her employer explaining that she wouldn’t be in on Monday
because she had to obtain a restraining order. “Tuesday, she arrives at work and she’s fired,” Jacobs
points out. “There was no complaint about the quality of her work or her attendance.”
       Jacobs also feels passionate about the new appropriations designed to improve police response
to sexual assaults against American Indian and Alaska Native women. Jacobs first dealt with these
issues while working under former U.S. Attorney General Janet Reno in the Justice Department.
“There is an astronomical incidence of violence against women in Indian territory,” Jacobs says.
“It’s rooted in poverty but largely invisible.” The new provisions will help the authorities in these
vast, rural communities better track the perpetrators of domestic violence crimes and provide the
victims with more accessible tribal-based services.
       At the same time that VAWA 2005 breaks new ground, it reaffirms the 1994 Act’s
commitment to funding its core legal services programs. “Studies show that the single most
important factor that enables a victim of domestic violence to leave her abusive situation is legal
counsel,” says Margaret Drew, chair of the ABA Commission on Domestic Violence. She notes that
the Commission was established in 1994, the same year as VAWA, under the auspices of the ABA’s
first female president, Roberta Ramo, “to heighten public awareness and demonstrate its
commitment to the issue.”

      Legal Representation for Victims
      With VAWA funding assistance, the Commission offers national training seminars two to three
times a year at various locations in the United States in conjunction with the Department of Justice
for lawyers who practice in the field of domestic violence, such as legal services attorneys. “This is
to support them, improve their litigation skills, and provide a live forum where lawyers can meet and
address the issues facing them,” Drew says. The Commission also offers web-based and telephonic
training opportunities and has established a listserv for practitioners to communicate with one
another. “It makes it quite accessible for someone in a rural area to put out a question and get
feedback from the rest of the nation,” she adds.
      Drew, who recently left private practice to become a professor at the University of Cincinnati
College of Law, represented victims of domestic violence for approximately 25 years. She estimates
that 60 percent to 70 percent of the attorneys practicing in the field of domestic violence are women.
“That’s because more women are doing family law, and more women identify with the issue,” Drew
notes.
      Although domestic violence cuts across all economic strata, Drew says she has noticed that “a
perception exists that you cannot make a decent living representing victims of domestic violence.”
Another big deterrent to specializing in domestic abuse law is the negativity of the subject matter. “It
can be traumatizing for whoever is listening as well,” Drew says, adding that lawyers need to
recognize the boundaries of what they can do for a client and try to maintain a balanced lifestyle.
“It’s important to participate in joyful activities,” she emphasizes
      However challenging the work, ironically, what maintains many domestic abuse attorneys are
the often-inspiring stories of battered women who struggle to overcome their situations. Naomi
Stern, a staff attorney for the Washington, D.C.-based National Law Center on Homelessness &
Poverty, has worked extensively with the immigrant community. “What impresses me is the strength
of these women who are facing cultural and linguistic barriers on top of domestic violence
problems,” she says.
      At the same time, Stern has found it helpful to alternate between direct legal representation and
public policy work, which allows her to continue to respond to the issues at a somewhat more
removed capacity. For instance, in her ongoing policy efforts to improve the housing situation for
battered women, Stern cites a recent victory in North Carolina, where she helped achieve passage of
a new law that allows victims to terminate a housing lease early without a penalty. Her job was to
educate the lawmakers about the need for a law that would enable victims to more easily escape their
perpetrators. “The lease was trapping them,” she says. “I was proud to have helped with that.”
      Thirty-year-old Stern says it’s vitally important to encourage young women lawyers to work on
women’s rights issues and on behalf of VAWA. “We arrived on the coattails of the trailblazers,”
Stern says, “but it’s important to add our voices and keep it going. This law sends an important
message. And it saves millions of women’s lives.”

     Ann Farmer is a freelance journalist who lives in New York City. She works as a breaking news
reporter for the New York Times, and writes about television, law, dance, women’s issues and other
topics for EMMY Magazine, Court TV, Dance Magazine, Women’s eNews and others.

     ABA listserv for domestic violence lawyers to share tips and information:
     http://www.abanet.org/domviol/newlist.html

     Listing with hyperlinks to key national and state websites with domestic violence information:
     http://www.abanet.org/domviol/sites.html

      Sidebar box 2:
      Top 10 Things Lawyers Can Do About Domestic Violence
        1. Serve as a volunteer board member for your local domestic violence organization.
        2. Work with your local chamber of commerce to develop training programs for employers
regarding domestic violence in the workplace. (Refer to The ABA Commission on Domestic
Violence’s A Guide for Employers: Domestic Violence in the Workplace.)
        3. Encourage your service organization to commit a number of hours of volunteer services at
your local domestic violence shelter.
        4. Conduct public education about teen dating violence and domestic violence at your local
high school or youth groups. (Refer to www.abanet.org/domviol.)
        5. Volunteer pro bono hours representing victims of domestic violence in need of protection
orders.
        6. Display information about community domestic violence resources in your office waiting
area.
        7. Volunteer to entertain a children’s group so that parents can attend your local domestic
violence organization’s support group. (Bring copies of The Bunny Book.)
        8. Post information regarding your community domestic violence resources on the bulletin
boards of local businesses.
        9. Help your local domestic violence organization develop materials with accurate
information about civil and criminal remedies for victims of domestic violence.
        10. Take a judge to lunch and give him or her a copy of the Judicial Checklist. (The Judicial
Checklist was developed in 1998 by the Judicial Subcommittee of the American Bar Association
Commission on Domestic Violence. To order, call the ABA Service Center at 800/285-2221 and
request product #5480003P50.)


Voices
Passion for a More Perfect Union
Removing Barriers to Equality and Opportunity
By Lisa Brown

      My family imbued in me a passionate belief in our democratic system of government and an
understanding that each of us must do our part to continually make it a “more perfect Union.” This
belief inspired me to attend law school and commit myself to public interest law practice and
government service.
      Working—not always successfully— to obtain relief for victims of discrimination, housing for
people with disabilities, and benefits for the homeless, I learned the power of the law to affect
individual lives. Developing and implementing policies on civil rights, social services, and our
judicial system, I experienced the power of the law to shape our institutions and to promote societal
change. I benefited personally from the doors arduously opened by the women’s movement—doors
that I passed through to play varsity sports, attend law school, become a law firm partner, work in
the Office of Legal Counsel at the Department of Justice, and serve as Counsel to Vice President Al
Gore in the White House.
      Yet, even as I appreciate the opportunities I have had, I am starkly aware of the challenges and
barriers that remain. Just look at recent news: Hurricane Katrina cast a spotlight on the class and race
divisions that permeate our country, and the Supreme Court nomination hearings focused attention
on how many of our most fundamental rights currently hang in the balance. And, like so many of
you reading this, I now try to be a successful professional and a loving mother and worry about the
world I will be leaving my toddler.
      While our society has made tremendous progress, today we are fighting both to protect the
hard-earned gains of the past 50 years and to address ever-more complicated barriers to true equality
and opportunity. Women; people of color; people with disabilities; gay, lesbian, bisexual, and
transgender people; ethnic minorities; and the poor all struggle to realize the American dream. Our
country simply does not live up to the aspirations of liberty, justice, and equality so valued by our
founders.
      This reality is not the result of happenstance. It is largely the product of a concerted effort by
conservatives to develop legal theories supporting their agenda, build a national team to implement
them, and dominate public discussion with their ideas. What they understood is that by controlling
the legal debate, one can shape policy and the very nature of society. As my father taught me, this is
democracy, and it is now time to restore balance to the legal debate, reclaim our Constitution, and
realize our vision of a just society.
      That is why I now head the American Constitution Society for Law and Policy (ACS). Lawyers
are uniquely equipped to take on this challenge, and ACS provides the forum for doing so. ACS
reminds people that progressive values—human dignity, individual liberty, justice, and equality—
are at the heart of our founding documents. We are developing new ideas rooted in those values to
address the ever-more complex issues of our time, from civil liberties in a time of terrorist threat to
the work-family balance. And we are building a diverse and dynamic national network of lawyers,
judges, academics, policymakers, activists, and students committed to making sure those values and
ideas are at the center of our laws and policies.
      With more than 135 law school chapters and 20 lawyer chapters across the country (and still
growing), ACS is building a movement, a movement of ideas that is armed with legal analysis. Our
members are building a progressive vision of the law on the important issues facing our country by
hosting speaking programs, developing legal arguments, writing white papers, publishing op-eds,
and contributing their time to efforts of other organizations to promote change on the ground. They
are working together to translate their ideas into expanded opportunity in America and a future in
which the law works for people, empowering them to reach their full potential and serving as a
bulwark against injustice. My father would be proud: They are doing their best to create a more
perfect Union that this mother would be honored to leave her son.

Lisa Brown is the executive director of the American Constitution Society for Law and Policy in
Washington, D.C. She can be reached at lbrown@ACSLaw.org.


Careers
Insider View, Outsider Role: Marcia Greenberger
By Cynthia L. Cooper
      As an advocate for women’s rights, Marcia D. Greenberger seems to be the quintessential
insider in the highly charged world of law and politics inside the Beltway of Washington, D.C.
      Greenberger has testified to Congress so many times during the past three decades that she has
lost count of the number. Photos in her office at the National Women’s Law Center, which she
founded, bear witness to meetings with presidents George H. W. Bush and Bill Clinton, among
others. There’s also the prestigious William J. Brennan Jr. Award from the District of Columbia Bar,
as well as quill pens from precedent-setting cases that have reached the U.S. Supreme Court.
Washingtonian magazine called her one of D.C.’s most powerful women.
      But “insider” is not a term that applies to her, Greenberger insists.
      “Certainly, I know and have worked with many people,” Greenberger says. “But by the nature
of my organization and our issues, we are outsider forces, always pressing to change the status quo
to improve things for the better for women and families. And that is very much of a non-insider
goal,” she adds with characteristic thoughtful repose.
      Yet from her vantage point, Greenberger has developed a view of the progress and challenges
to women’s rights that is unique, inside or outside Washington.
      Greenberger began working on women’s advancement in 1972, the year that Title IX was
passed to ensure gender parity in educational institutions that receive federal funds. Only two years
out of the University of Pennsylvania Law School and working at a D.C. tax firm, Greenberger was
tapped by the newly founded Center for Law and Social Policy (CLASP) to analyze whether a need
existed for a lawyer devoted to women’s issues.
      “It was clear that there was more than enough work to keep one lawyer busy full time,”
Greenberger says. CLASP opened a women’s rights project with Greenberger at its helm, and, in
1981, the National Women’s Law Center (NWLC) evolved as a separate entity. Thirty-four years
after her initial inquiry, Greenberger’s organization has a $7 million annual budget and staff of 50.
And every one is very busy.
      “In those early years, I would never have guessed that it would require such consistent and
persistent efforts over so many years to make gains in legal protections for women, let alone the
challenges we face in making sure that the gains remain in place and aren’t eroded,” Greenberger
observes. “We are stretched to the limit and wish we had more people and time to address all the
issues crying for attention.”
      Since opening NWLC, Greenberger has acted as co-president with Nancy Duff Campbell, an
unusual configuration to stave off “killer schedules,” to allow sharing of administrative tasks, and to
permit each to delve into substantive areas. The arrangement allowed Greenberger, married to a man
she met at law school, to limit office hours to four days a week when her daughters, now 27 and 31,
were young.
      Watching NWLC grow into a force for addressing the core legal rights of women and girls
gives Greenberger enormous satisfaction. The organization applies a full range of legislation,
litigation, and policy proposals to four priority areas: employment, education, family economic
security, and health and reproductive rights.
      Many of the issues Greenberger identified in 1972 are still in the mix. Prominent among them
are the enforcement, interpretation, and application of Title IX. The law is best known for inspiring
the burst of women into locker rooms, with an 800 percent increase in girls participating in high
school sports today, compared to the years before the law. But since its passage, Title IX has been a
source of “extraordinary opposition and resistance by some,” Greenberger says. “I don’t think I
would have had any sense at all in 1972 that we would still be fighting the battles that we are
fighting in 2005.”
      In 1979, Greenberger’s organization brought the first major Title IX case (Haffer v. Temple
University), securing a court-ordered settlement to expand the women’s intercollegiate sports
program at the school. Other cases followed—holding schools accountable under Title IX for sexual
harassment, including situations when students harass other students. The organization engineered
legislation in 1988 establishing that all parts of school programs are covered by Title IX when the
school receives any federal funds. The NWLC brought actions securing millions of dollars in
scholarships for women students.
      But disturbing problems continue. Early this year, Greenberger was co-counsel in the U.S.
Supreme Court on Jackson v. Birmingham Board of Education, representing a girls’ high school
basketball coach who was stripped of his duties after he complained about unequal conditions for
girls. On March 29, the U.S. Supreme Court agreed with NWLC that Title IX offers protections
against retaliation for those who protest sex discrimination.
      NWLC does not always have victories. In spring 2005, the U.S. Department of Education
quietly weakened rules on sports equity in colleges. This occurred despite a public renunciation of
the same diluted rules only two years earlier following public hearings and outcry.
      “What surprises me even to this day is how much gets done behind the scenes. Agencies decide
either that they are simply not going to enforce the laws that we’ve had on the books, or that they
will go ahead and enforce in a vigorous way. Often neither of those decisions gets very much public
attention, but they can make all the difference in the world,” Greenberger says. NWLC is now
engaged in a campaign to reverse this Title IX rollback, launching a special website
(www.titleIX.info.)
      Greenberger also participates in the broad array of other NWLC initiatives. Her first testimony
to Congress in 1973 was based on interviews with women on welfare who were forced into using
long-lasting injectible birth control that was not approved by the FDA. The experience was life
changing for her. “I was confronted face to face with the extraordinary difficulties and courage that
these women had in overcoming the challenges they were facing,” she says, “and what a difference it
made to be able to use the system to air their grievances.”
      In 1976, NWLC won a case (Women Working in Construction v. Marshall) securing hiring
goals for women in federally funded construction; established in a 1983 case (Parents Without
Partners v. Massinga) that custodial parents are entitled to assistance from state child support
enforcement; and obtained in 2000 a far-reaching ruling from the Equal Employment Opportunity
Commission that the denial of contraceptive coverage in health insurance constitutes sex
discrimination.
      Judicial appointments became of increasing concern as NWLC observed an intentional
alteration in the nominations process, Greenberger says. Nominations were intentionally designed to
shift the direction of the courts on the equal protection clause, right to privacy, and enforcement of
federal laws—interpretations that would unravel protections for women. “A very precariously
balanced Supreme Court has made our participation all the more important,” says Greenberger, who
testified against the nomination of John Roberts as Chief Justice of the U.S. Supreme Court (see
sidebar).
      The greatest concerns ahead? Greenberger believes they are based in fundamental tax and
budget decisions that will affect women for generations to come: Social Security; Medicaid; and
investments in health care, education, child care, and the future of women’s legal rights in the courts.
      “I don’t take our gains for granted the way I did as a young lawyer. I take a longer view of
social change than I did,” Greenberger says. “I have an enormous sense of optimism that we will
continue to make progress, but,”—and here, she laughs, if lightly—“I don’t think it’s quite the same
straight line that I expected as a younger woman.”

     Cynthia L. Cooper is an independent journalist in New York with a background as a lawyer.

      Sidebar box:
      Excerpts from Marcia Greenberger’s testimony to the
      Senate Judiciary Committee on the nomination of John Roberts as Chief Justice of the U.S.
Supreme Court:
      “(O)n a breadth of issues, John Roberts followed an unmistakable pattern of developing,
advancing, and embracing legal arguments and positions that would undermine women’s most basic
legal rights. . . .
      “Judge Roberts has argued that the courts should not recognize established fundamental rights,
like the constitutional right to privacy, or apply heightened review of government policies and
practices that discriminate on the basis of sex; that courts should interpret federal statutory
protections for women’s rights and other civil rights narrowly despite congressional intent to the
contrary; that federal remedies are unavailable even where state remedies are inadequate; that
Congress’s power to protect the public welfare should be interpreted narrowly; and that the ability of
citizens to sue in federal court to enforce federal rights should be severely restricted. . . .
      “Had John Roberts’s views prevailed on issues like Title IX and other broad protections against
sex discrimination and guarantees of women’s legal rights, aspiring Mia Hamms, Olympic gold
medal champions, and WNBA players would not have had the opportunities that have enabled them
to shine. Women would be facing an ever greater pay gap today, and their progress would be slowed
in entering fields of study and careers that were simply off limits in the past. Protections would not
be in place to secure essential reproductive health care without massive blockades and physical
intimidation; indeed, laws would be upheld making reproductive health care illegal altogether.
      “Women’s livelihoods and their very lives would be placed at risk if their legal rights were
limited and weakened in the ways John Roberts advocated through his career. The Senate should not
confirm John Roberts on this record.”