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Photo: 40th Anniversary Panel With Patricia Wald
Patricia Wald (left) on a panel at our 40th anniversary celebration in 2011.

The Public-Interest Legacy of Judge Patricia Wald

By Gregory M. Lipper

Public-interest lawyers can and did learn a lot from Judge Patricia Wald, who died at age 90 on January 12. Many knew her as a giant of the District’s bar and bench—an influential public-interest litigator turned pathbreaking federal judge turned international war-crimes jurist. Fewer, perhaps, know that she was one of the lawyers who founded our own organization, Washington Council of Lawyers, in the early 1970s. Through it all, she marched to the beat of her own drummer, retaining a zeal for helping vulnerable people, refreshing humility and candor, and a willingness to push hard—and tell people what they didn’t want to hear—on behalf of society’s most vulnerable.

An influential public-interest advocate

Patricia Wald went to law school to help people: “Most of my family worked in the factories. I did too. While I was in college I worked in the factory and got involved in the labor movement. I decided to go to law school thinking that it would be a good way to play a role in the protection of working class people.”

She entered Yale Law School in 1948, at a time when Harvard Law did not accept women. After graduating in 1951, clerking for a judge on the Second Circuit, and working as an associate at the then-tiny law firm of Arnold & Porter, she left her job to begin raising her first of five kids. She did that for ten years, but along the way she wrote significant books on bail reform and poverty law.

Then she returned to full-time work. She started at Neighborhood Legal Services Program’s Law Reform Unit—joining what she described as “the first wave of legal services litigators.” Among her cases was Harris v. Harris, a successful challenge to the D.C. courts’ refusal to waive divorce fees for poor women and now “a staple of every legal services lawyer’s litigation reference book.”

She then made major contributions to mental-health law, founding the Mental Health Law Project (now the Bazelon Center for Mental Health Law) at the Center for Law and Social Policy. There, she litigated a major case challenging conditions at St. Elizabeth’s Hospital; she was one of the first advocates “to argue for the application of least restrictive alternative principle as a limitation on the government’s authority to deprive people with mental illness of their liberty.”

She succeeded because of her talent and discipline and due to a conspicuous lack of ego. For example, her first experience litigating cases came at age 40; as she explained, “I was working with very talented, enthusiastic young lawyers. From my point of view, they were kids. Because I hadn’t litigated before, they knew much more than I did. They were my supervisors and they were the people I turned to for guidance.” Needless to say, “[t]here have been many times in my career when I had to learn to be humble, and that was one of them.”

A different kind of judge

Wald’s work for vulnerable clients attracted critics. In 1979, after she spent two years as Assistant Attorney General for Legislative Affairs, President Carter nominated her to be a judge on the D.C. Circuit. Out came the knives. One Republican Senator dubbed her “anti-family” because she had argued that children should sometimes be allowed to seek medical attention without parental approval. Not to be outdone, preacher Bob Jones III of Bob Jones University called her an “instrument of the devil.” Satan-baiting notwithstanding, Wald was confirmed and became became the first woman to serve on the D.C. Circuit.

Despite her critics, Wald’s experience litigating public-interest cases made her a better and more humane judge. As Linda Greenhouse wrote, “by the time she became a federal judge at the age of 50, she was a fully integrated adult with a breadth and depth of experience, not an ambitious young careerist strategizing the next move up the ladder.” That broad and deep experience affected the way  she did her job; she described her approach to judging as “a bit more concrete and down to earth”—she evaluated cases “in terms of real clients, real lawyers, and real situations, rather than in more abstract principles or policy formulations.”

Her experience also allowed her to empathize with lawyers who made mistakes. Recognizing that she too had made plenty of errors as a lawyer, Judge Wald found it hard “to scream at counsel and tell them how bad they are.”

All the while, she wielded a lively pen and deployed a fierce wit. Appellate judges, she observed, were “monks or conjugal partners locked into a compulsory and often uneasy collegiality.” But that sense of partnership also yielded to her conscience when she reluctantly wrote dissents: “You always have a sad feeling when you write a dissent because it means you lost. But you write them because you have faith that maybe they will play out at some time in the future, because of the integrity you owe to yourself.”

Judge Wald left the federal bench on her own timeline as well. She retired from the D.C. Circuit at age 70 in 1999, and then spent two years as a judge on the International Criminal Tribunal for the Former Yugoslavia at The Hague. To that post she brought “a refreshing lack of pomp“—”often running down documents herself, instead of dispatching clerks to fetch them, leaving her office door open for visitors and taking her meals in a canteen where judges were seldom spotted.”

Indeed, pomp seemed to be beyond Judge Wald’s imagination. Once she was asked how she’d like to be remembered. Her answer was almost comically understated: “Oh, the usual. That she worked very hard, she was a reasonably good administrator. She was a thoughtful and fair judge and she made some small contributions towards pushing the law forward as an effective means of solving human and social problems.” Judge Wald simply wanted to help people, and she also recognized the limits of any one person’s reach.

Relentless in everything she did

But make no mistake: Patricia Wald was tough. As one professor put it, she was “funny, self-deprecating”—”and demanding.” She demanded rigor and discipline and humility, especially from those purporting to serve noble causes or vulnerable clients.

Take a speech that she gave in December 1992, after the election of President Clinton, to new legal-services lawyers hoping to practice poverty law in federal court. Her remarks reveal little bombast and plenty of specific, practical, and perhaps unwelcome advice for those aspiring to work on public-interest cases.

For one, she rebuilt the toolbox. Poverty lawyers, she stressed, should “forget glamour and get to know the boring basics of federal jurisdiction and that beast called administrative law.” Public-interest lawyers also needed to show their work: “You need to convince us that the law or the regulation is important in poor people’s lives. That calls for factual, consequence-oriented evidence, not a sentence or two in a stipulation.” Lest the audience downplay that advice, Judge Wald warned that “important lawsuits [had been] lost by public interest groups because they too readily stipulated conclusory facts in order to get to the legal issue.”

She also nudged public-interest litigators who fancied themselves heroes. “This is not a glory game,” she said. Lawsuits should be “part of a broader strategy”; even winning cases would require additional action; and “most appellate courts do not deal in clear victories, only clear defeats.”

Judge Wald had especially little patience for lawyers who put their own professional advancement over their clients’ best interests. When admonishing lawyers to “always put your program’s best foot forward,” she pulled no punches: “Let the most proficient advocate in the program argue the important case—regardless of how the case came to you or who had it originally.” She said it again: “If you’re not the best advocate for a case, step aside.” That advice came out of her own experience, including her experience on the bench. For Judge Wald had “seen some regrettably weak performances from legal services and other public interest groups that might have been avoided except for the irrepressible ego factor.”

More generally, she observed that throughout the 1980s and early 1990s, as the executive and courts become more and more conservative, the mission of legal-services organizations narrowed in scope and imagination—it “went from the ambitious ‘achieving social change’ to the more modest ‘attaining equal access to justice.'” Judge Wald contemplated that, if and when the climate improved, public-interest organizations might revisit their plans and goals.

Should we be aspiring to do even more? It’s a tough question for any organization, including our own—whose mission focuses on “seeking to help our justice system serve everyone” and “supporting policies that expand access to justice.” In the current environment, perhaps broader ambitions seem fanciful. But Judge Wald reminds us to revisit and reconsider our goals when times and environments change, and not to become complacent.

In the meantime, we can remember Judge Wald as someone who was talented and generous and disciplined and humble and who felt compelled to push—and keep pushing—to improve her community and country. She was an irreplaceable lawyer and judge and offers pointed lessons to us all.

Greg Lipper (@theglipper) is a partner at Clinton & Peed and a member of our Board of Directors.