Mary M. Schroeder
August 30, 2006; September 16, 2006; October 13, 2006; January 3, 2007
Recommended Citation
Transcript of Interview with Mary M. Schroeder (Aug. 30, 2006; Sept. 16, 2006; Oct. 13, 2006; Jan. 3, 2007), https://abawtp.law.stanford.edu/exhibits/show/mary-m-schroeder.
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Terms of Use This oral history is part of the American Bar Association Women Trailblazers in the Law Project, a project initiated by the ABA Commission on Women in the Profession and sponsored by the ABA Senior Lawyers Division. This is a collaborative research project between the American Bar Association and the American Bar Foundation. Reprinted with permission from the American Bar Association. All rights reserved.
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ABA Commission on Women in the Profession
Women Trailblazers in the Law
ORAL HISTORY
of
MARY MURPHY SCHROEDER
Interviewer: Patricia Lee Refo
Dates of Interviews:
August30,2006 September 16, 2006 October 13, 2006 January 3, 2007
THE ORAL HISTORY OF THE HONORABLE MARY MURPHY SCHROEDER,
CHIEF JUDCE. UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
= = = = = = = = voice Transcription = = = = = = = = =
SESSION ONE
Refo:
Today is August 30th, 2006. My name is Trish Refo and I'm
sitting with Chief Judge Mary Schroeder and this is the first session
of the oral history for the Trailblazer's project, and thank you very
much for taking the time to do this with us. Let's begin at the
beginning. Tell me when and where you were born.
Schroeder:
I was born in Boulder, Colorado, in 1940, which seems a very
long time ago. When I was born, there was a little story in the
Boulder camera, the daily newspaper, saying that my father, Richard
Murphy was sitting in the waiting room of the maternity ward of
community Hospital reading a book entitled "Reveries of a Bachelor."
I never knew whether that was true or not.
Refo:
<Laughter> That's a great story. And your mother was Theresa
Murphy?
Schroeder:
Yes.
Refo:
What was her maiden name?
1
Schroeder:
Theresa Kahn. She was a remarkable woman and she came
from one of the great Jewish families of Pittsburgh. MY father was
the son of a Wild Irishman who had studied for the priesthood.
Luckily for me, he decided against it. My parents were unable to
marry during the 30's. Nepotism laws prohibited the wife from
working for the same employer as the husband. Both needed the
jobs at the University of Pittsburgh to support their families. When
my father took a job in Colorado they decided they'd better get
married so that they could be together. They met at the university
of Pittsburgh. In the 20's she was the coach of the women's debate
team and he was the coach of the men's debate team.
Refo:
What were her parents' names?
Schroeder:
Well, her father's name was Charles Kahn. He was a merchant.
Her mother's name was Genevieve Guggenheim Kahn. Two cousins
named Guggenheim came to the United states several generations
before her. one of them has a very large museum named after him
in New York on 5th Avenue, and the other was my great-great
grandfather.
Refo:
O.K., and did your mother have siblings?
Schroeder:
Yes, she had several brothers and sisters. one of her sisters
was very talented musically. She was one of the first people to ever
2
sing on the radio at KDKA, one of the country's earliest radio stations
and located in Pittsburgh. Two of her brothers were haberdashers.
Refo:
And your mom obviously was, was a working mom, when you
were growing up, or some part of that time?
Schroeder:
Well, they were in Colorado, when WWII broke out. Because
the draft took away many of the teachers the University permitted
her to teach along with my father, who was too old for military
duty. She always believed that women should do what they wanted
to do and that there was no reason why women couldn't do the
same things that men do. She was a feminist. She was born on
August 26th, which is women's suffrage day, 17 years, to the day,
before women got the right to vote.
Refo:
wow.
Schroeder:
She later taught in the public schools in Champaign-Urbana,
Illinois, off and on, which is where I eventually grew up, and she was
always very active in community work.
Refo:
Where was she educated?
Schroeder:
She went to the University of Pittsburgh, as did my father.
They were both from western Pennsylvania and Pitt, <it has always
been called Pitt> was the great working class university of the area
3
and it provided an awful lot of opportunities, particularly in the
Great Depression, after both my parents' families lost everything.
Refo:
I know sometimes it's hard to talk about the influences our
parents have on us but can you talk a little bit about the influence
your mom had on you?
Schroeder:
Well, my mother had incredible judgment. we moved to
Illinois when I was about five, after my father accepted a position
teaching at the university of Illinois. It was just after the war and my
mother was not able to work because they reinstituted nepotism
rules for whatever reason. we lived in a house that was very close to
downtown Urbana, Illinois, and everybody who came to shop would
stop in at our house to have a cup of coffee and talk to my mother.
I really got an education about life at my mother's kitchen table,
because everyone with any kind of problem came in to talk about it
with my mother. There were battered women, for example, whose
husbands were beating them and didn't want to leave the children.
There was one woman who thought there would be an election
scandal in a town about a hundred miles away, where some of the
ballot boxes were still locked up under an official's bed. There was
much worry about childrens' illnesses, delinquency and pregnancy.
Just about everything that you could imagine came through my
mother's kitchen, and I absorbed all of it.
Refo:
And your father was Richard Murphy?
4
Schroeder:
Yes.
Refo:
And his heritage was Irish vou said?
Schroeder:
His father was Irish but he married a woman who was of
German and Pennsylvania Dutch stock and who was a staunch
Methodist. It was a rather unusual union I think. He had three older
sisters and he was the caboose.
Schroeder:
His sisters were pillars of the wcru and when mv father's
father died, my father was basically raised by his sisters because his
mother wasn't able to care for him. His sisters were much older
than he.
Refo:
Obviously you never knew your father's father?
Schroeder:
No I didn't. Dennis Jerome Murphy was his name. My
brother, Richard Dennis, is named after him and mv father. I was
named after mv father's mother whose name was Marv weber, w-e
b-e-r, Murphy. She died when I was about three, so I never really
knew either of my paternal grandparents. My maternal
grandfather, Charlie Kahn died long before I was born, but I knew
my grandmother, Grandma Kahn. She was "formidable." She would
arrive on the train for a three week visit with her fox stole and an
intimidating aura. She wore the fox stole and beautiful rhinestone
5
clips. I still have one of them. She had incredible posture and she
seemed to me about six feet tall I don't think she really was.
Refo:
were you close to her as a kid?
Schroeder:
Not really, because she was rather scary and she didn't spend
that much time with us, but I liked her. She was Austrian and she
made wonderful cookies. She used some Yiddish words and used to '
call my brother a "fresser," which I think meant that he ate a lot.
Refo:
was there anybody in your childhood, the generation ahead of
your parents, either family or not family, who was particularly
important to you growing up?
Schroeder:
You know, I think ironically the family that I spent more time
with than any other was when I was in high school was the family of
one of the law professors at the law school, Ed Cleary. He taught
evidence and later was the Reporter for the Rules of Evidence. His
daughter Ann, a few years older than I, was very musically talented
and gave me flute lessons. Their second daughter Marty Cleary, who
is now Marty Cleary strong, was one of my best friends, I loved the
Cleary house, a big house on Pennsylvania street in Urbana, and I
loved Ed Cleary. He later came to Arizona to teach at Arizona state
and he was one of the big reasons I was willing to move there. I
didn't know anything about Phoenix, had never seen Arizona, and
the law school at Arizona state University was brand new, but I
6
thought, "if it's good enough for Ed Cleary it's good enough for us."
He was raised in Jacksonville, Illinois <the same town my husband
came from> and Ed's parents were both deaf. They taught at the
state school for the deaf in Jacksonville and must have been quite
remarkable.
Refo:
Talk a little bit about the influences that your father had on
you.
Schroeder:
I adored my father. He loved his family, he loved words, and
he loved books. He had mountains of books, and every one of his
books had written in it where he purchased it and how much he
paid for it. He had a number of collections on argumentation,
debate, public speaking and elocution. He was an expert in
parliamentary procedure and so was my mother. They both
believed in parliamentary procedure, running orderly meetings, I
think that is why I am able sometimes to preside well over difficult
meetings, I think there's a certain "procedure" gene that people
have. so I've always loved civil procedure. Though I've never really
studied parlia_mentary procedure, I got a lot of it through osmosis
from my parents. My father would teach outside the university for
extra money, conducting seminars for union leaders on how to
conduct a good union meeting. over there is a print of one of
Norman Rockwell's famous "Four Freedoms" series for the Saturday
Evening Post. This one is "Freedom of speech" and depicts a man
speaking up at a union meeting. My father always had a print of that
in his office. He really believed in free speech. He was a member of
7
the AAUP, American Association of university Professors committee
on Academic Freedom. It tried to make sure that no professors
were fired for exercising their right to free speech. That was just a
core value for him so I think that must have had an influence on me
as well.
Refo:
You mentioned your brother Dennis. Is he older or younger?
Schroeder:
He's three years younger. He's an economist with the Federal
Trade commission.
Refo:
Did you guys have a sibling rivalry relationship growing up?
Schroeder:
No, we were actually pretty close growing up. well, to a
certain extent we had a rivalry, because he's very musical. When 1
started taking piano lessons, I would pick the pieces out slowly,
painfully reading the notes on the page. When I finished my half an
hour mandatory practice, he would crawl up on the piano bench
and just play it all by ear. It was very discouraging.
Refo:
so he was born when you all were still in Boulder?
Schroeder:
He was born in Boulder but you know I have a theory that
people's brains get imprinted with the geography of where they
spend their first five years. I spent my first five years in Colorado,
and I love the mountains and the grandeur of Colorado. we left
8
before .he got that same imprint, so he was imprinted with the
prairie. And so I wound up in Arizona. I went to college in the east
near Philadelphia in a very beautiful suburb, but I tried to get back
west as soon as I could. My brother went to college at a wonderful
school named Grinnell, in Iowa. I remember driving him to college
for his freshman year and I had to get out of there after ten
minutes. I could not exist in that little town, in the middle of Iowa,
with one gas station, but he absolutely thrived in it.
Refo: \
Do you remember the move from Boulder to Urbana?
Schroeder:
Yes I do.
Refo:
was that a big deal? was that disruptive for you?
Schroeder:
It was disruptive because Colorado was so beautiful and it was
right after the war. we had this old car that kept breaking down. It
was a 1940 Hudson. There was no housing at the University of Illinois
because all of the veterans were coming back on the GI bill. we had
to buy an old house that was falling apart and redo it. It belonged
to an old lady that lived in it for eighty years. When the ceilings fell
in on one room she would just close off the room. It was pretty
traumatic for the family. I don't know how my parents did it with
these two little kids and the car that was always breaking down and
no decent housing. we had to live in a tourist cabin. There weren't
motels in those days. There were little tourist cabins, and we lived in
one for three weeks. The post war changes that occurred right
after world war II had an impact on me and, 1 think, on many
members of my generation. 1 think we got imbued with a kind of
spirit of change and of moving forward.
Refo:
What grade school did you go to?
Schroeder:
I went to an elementary school called Leal School in Urbana,
Illinois.
Refo:
A public school?
Schroeder:
It was a public school. It was the best public school in Urbana.
Urbana had a pretty good public school system, because all
university towns generally have good public school systems. In fact,
and it's ironic, one of the reasons that I thought that it would be
good to move to Arizona was that I thought that we were moving to
a university town, Tempe, Arizona. It turns out that Tempe is really a
bedroom community for Phoenix, and we never lived in Tempe
anyway. we decided to live in Scottsdale. The "college town" in
Arizona was a great delusion on my part but it all worked out.
Refo:
Any special teachers that you remember in your grade school?
People who were of particular importance to you?
Schroeder:
1 had a male teacher in sixth grade.
Refo:
10
NO kidding? So did I.
Schroeder:
Did you? Well I think it is quite unusual and I thought it was
very good for me to have a male teacher after all those women
teachers in elementary school. He was very supportive of the girls in .
class and encouraged them to speak out. That did make an
impression on me. \
Refo:
What was his name, do you remember?
Schroeder:
Mr. File.
Refo:
And middle school? Where did you go to middle school?
Schroeder:
I went to University High School which had a special program
called the "sub-freshman" program. I was one of those people who
was caught in an arbitrary cutoff date for starting first grade. If you
were born before December 1st then you started first grade at one
year and if you're born after December 1st you start it the next year.
I was born December 4th, so I was almost a year older than some of
my contemporaries in elementary school. Then I found out about
this program at university High School in Urbana, a laboratory school
operated by the University of Illinois. It had a program, that one had
to pass a test for admission, that combined seventh and eighth
grade. It was called a sub-freshman program. 1 did that program
and I was able to make up the year. I think that put me on track.
The upperclassmen used to call the sub-freshmen the "subbies" and
11
we were really pretty-much at the bottom of the ladder, but it was a
good program for me. The rest of the high school was open to
anyone, but dominated by faculty children. I got a pretty good
education for what amounted to a midwestern public school
outside the great schools of the north shore suburbs of Chicago.
our athletic teams were terrible and the kids at the Champion and
Urbana High Schools referred to us as "Puny uni."
Refo:
was it affiliated with the University?
Schroeder:
Yes, was run by the university as a laboratory school and was
supposed to be experimental. I think I got the short end of some of
the experiments.
Refo:
Like what?
Schroeder:
Well, the "New Math" started at Uni High. The genius of New
Math was a man named Max Beberman. He was a genius; he
admitted it and everyone knew it. But we were the very first kids,
to be experimented with and as a result I never learned any math. I
spent years trying to catch up a little bit to understand how calculus
works. 1 don't think that I ever did. Fortunately, my brother is fairly
mathematical, and as an economist, he's much better than I am. My
children are very good. 1 don't think that I'm an idiot
mathematically, but I just never "got it" and that was poor.
12
on the other hand there were two other geniuses who taught
at the High School: one was in art and one was in music. The art
teacher's name was Mr. Laska and he took the little sub-freshmen
and gave them a survey art course, beginning with Egypt and going
all the way through Picasso, that changed my life. It just opened up
a whole world for me. The music teacher's name was warren
Schuetz. He was a genius too. I think both Laska and Schuetz never
finished getting their doctoral degrees because they began teaching
at University High School, and they just stayed there because they
loved the kids. Schuetz' genius was in getting all of the students to
participate in music programs, particularly choral music programs.
They would produce a Gilbert and Sullivan operetta every year and it
was the status symbol of the school to have a lead in the Gilbert &
Sullivan. n didn't but my brother did.> The school had a "grand
reunion" decades later. somebody asked, just for the heck of it, how
many people are still involved in music, and of the people who were
there who had been students in the era of warren Schuetz, an
unbelievable number raised their hands. I would say almost half or
at least a third of the people there had gone on to sing in choirs or
whatever, for life. He opened the world of music to all of us.
Schuetz did a survey course of music for the little sub-freshmen that
was remarkable. It took us from medieval music and Gregorian
chants up through Aaron Copeland.
Refo:
wow. Am I right that you still have a love of Gilbert & Sullivan?
Schroeder:
Oh I sti II do.
13
Refo:
Is that where it started?
Schroeder:
That's where it started. Of course you remember everything
that you learn when you're in high school, so I can still sing almost all
the words of a number of Gilbert & Sullivan operettas. Gilbert wrote
remarkable poetry about the law. He was so good at mocking the
law that a lot of lawyers and judges love Gilbert & Sullivan. Both
Justice Rehnquist and Justice Ginsburg loved Gilbert & Sullivan. They
sang and played some at the Chief's funeral, and Justice Ginsberg
appeared once or twice with Justice Rehnquist in Gilbert & Sullivan
productions.
Refo:
were you a good student in high school?
Schroeder:
I was pretty good.
Refo:
What did you like the most? What classes besides the music
and the art?
Schroeder:
High school?
Refo:
Not math.
Schroeder:
No, not math. It's hard to say, 1 guess maybe I enjoyed social
studies the most, but I wasn't really much interested in classes. 1 still
14
have a recurrent dream that I'm in French class and that I haven't
studied all year and an exam is coming up. It was a small school and
there were lots of activities, so I was on the student council and the
chorus and all of that. 1 had a lot of friends. one of my classmates
was George Will, the columnist.
Refo:
Is that right?
Schroeder:
Yes. I think he was the treasurer of the student council while 1
was the chairman of the Finance committee. we had to decide how
much money various activities should get and I think mv prophecy in
our class yearbook was that I was still in a Finance committee
meeting arguing with George Will. The great issue when we were on
the student council was whether or not sub-freshman should have
representation on the student council. George and I had a debate.
supported having the sub-freshman represented on the student
council and he was opposed to it on the theory that the upper
classes could take care of the interests of the lower classes. I think
that that pretty much encapsulates our later philosophies as well.
There were four of us who used to hang out together. one was
Marty Cleary strong, who eventually married John strong, the son of
the Dean of the law school at Ohio state, and a very close friend of
Marty's father, Ed Cleary. I'm still very close to the Strongs. They
lived in Tucson for many years and he taught at the university of
Arizona Law school. 1 think their son is doing a residency in Tucson.
John and Marty now live in Oregon. I haven't seen them for a while
but we've staved in touch over the years. There was Stewart Cohn,
15
.. i
the son of another law professor, Ruben Cohn. stew became a law
professor as well and he teaches, I think at the University of Florida, 1
haven't been in touch with him in years, however.
Refo:
That's a pretty high powered high school four-some.
Schroeder:
It was a pretty high powered group, I suppose.
Refo:
How would you describe yourself when you were in high
school?
Schroeder:
Well, I could never get my hair to do what I wanted it to do.
really enjoyed goi.ng out with groups of people. 1 dated a lot of
different folks. The class above me was unusual because it had 21
boys and 7 girls, or something like that, and so the odds were pretty
good and I enjoyed the university. 1 enjoyed growing up in a
university town and I liked to go to the library and order books at
the great University of Illinois library, and I loved sports. 1 avidly
followed the university of Illinois teams.
Refo:
Did you play sports in high school?
Schroeder:
No. That's one of my generational problems. Schools didn't
encourage girls to do sports. The boys would somehow come out
every Spring and they could run two miles, high jump and show off
other track skills. I was just amazed. once a year they would have
16
the girls go a quarter of a mile around the track and we'd just barely
make it. All of these boys seemed to know how to do this from the
get go.
Refo:
Okay this is tape two.
Schroeder:
we were talking about sports when I was in high school. In
later years I was rather bitter because I really would have liked to
learn some sports. I spent thirty years trying to learn how to play
tennis and finally gave up because it was too hard for me. I swim and
I've become a devotee of exercise, 1 do it religiously, every day, and 1
think it's too bad that girls didn't have that opportunity to
participate in athletics at a high level when I was growing up in the
so·s and the 60's. so I've been a great supporter of Title IX and 1
think it's done a lot of good. women are so much healthier today
and look so much better because we've become aware that you
have to be active physically. That simply was not understood when I
was growing up. Boys were active physically. Girls weren't. They
stayed home and learned to cook.
Refo:
Right. You were obviously a leader already in high school and
that's not something that's stopped. Any thoughts on where those
leadership skills and qualities came from that early?
Schroeder:
Well I never really thought of myself as a leader. 1 always
thought of myself as kind of a participant, but an active one. My
mother was very active politically. She was a pillar of the Democratic
17
Party in down state Illinois, Champaign county, Cunningham
Township. And the local Democratic Party used to meet in our
living room from time to time, and so I would listen to all those
discussions. I learned about all of the issues of the day such as
fluoridating the water, the quality of the schools that were not
legally segregated but may as well have been, because people did
not live in integrated neighborhoods.
The great issue that I learned about in my mother's kitchen
and that scared the daylights out of me was religious education in
the schools. When I was getting ready to go to first grade in
Champaign Urbana, there was religious education in the schools and
students had to choose which religion to be instructed in. 1 did not
have one. My parents had decided they were not going to bring me
up in any formal religion because they were from mixed
backgrounds. 1 didn't have one to choose and so I was very
frightened about going to school. However the constitution came
to my rescue. A remarkable woman named Vashti Mccollum, in 1947
when I was 6, when I was just about to go into first grade,
challenged the religious instruction in Urbana and took it to the
supreme court in the case of Mccollum v. Illinois. The court in 1948
held that the religious instruction violated the First Amendment as
an establishment of religion. I learned about all this through my
mother's following it so closely. It gave me a real sense of how the
law affects people because it affected my life at a very early age, in a
very particular case, that came out of my neighborhood. That, 1
think, made an indelible impression that has never left me. By the
18
time I was ready to start the grade where religious education had
existed, it had been ruled unconstitutional.
Refo:
I read somewhere that vou went to Quaker Sunday School for a
while, is that true?
Schroeder:
1 did for a while, ves. one of mv mother's friends decided to
start a First Dav School, a Quaker Sunday school, and she collected all
the children of her friends who didn't have anv other place to go. It
was intended to be a study of the Bible and what the Bible savs, but
not for any particular interpretations or lessons from it. It was more
in terms of literature and culture. The Quaker "Friends" were ·
wonderful people. Because this was a University town there were
quite amazing young people among the lost souls who wound up
going to the First Dav school with me and mv brother. one was Igor
Stravinsky's grandson whose father, soulima Stravinsky, as on the
music faculty at the university of Illinois; Johnny Stravinsky. People
were always asking him what he was going to be when he grew up,
and he would sav "A cowboy!" 1 learned a little bit about the Bible
and about the prophets, but I learned a good deal about the other
people who went to First Dav School with me and that was worth
the whole thing in and of itself.
Refo:
Has organized religion ever been a particularly important part
of your life?
Schroeder:
1~
No, not with a mother who was Jewish and a father who grew
up resisting the Methodism of his sisters. I went to Swarthmore. It
was founded by the Quakers, along with Bryn Mawr and Haverford.
think I got a leg up in getting in because I said on the application
that if I had to have a religious preference it would be Quaker. The
culture of the Friends includes the idea of "meetings" where people
get together and with no formal votes, act through consensus, I
always liked that tradition. It made an impression on me that the
people were not divisive but would try to come to reasoned
conclusions. 1 remember sitting in on some of the meetings of the
society of Friends in Champaign-Urbana and seeing how they would
try to resolve problems and I thought that was very, very
constructive. It did not make me religious however. MY mother was
very conscious of being Jewish, of her Jewish heritage, which was
very important to her. She suffered a great deal of discrimination as
a result of it and always told me that I should be prepared to suffer
discrimination as well. Of course, I was never identified as being
Jewish because my name was Murphy, although within the Jewish
religion I am considered Jewish because it is inherited through the
mother. When I was at Swarthmore, we had a little club we called
"hemi-semites" or maybe we called it the "semi-hemites", but there
were a lot of us who were half Jewish. It was very interesting,
though, that the people whose fathers were Jewish identified
themselves as being Jewish because of their name, and those whose
mothers were Jewish, although they technically were actually
Jewish, were not identified as Jewish, because of their names. It has
20
always been an interesting phenomenon to me that people are so
stereotyped by the nature of their last names.
Refo:
Did you celebrate Jewish holidays, Christian holidays, all of
them, none of them in your family?
Schroeder:
Oh, we celebrated Christmas in a very non-religious way. My
father was very traditional. He loved to collect things. He was a
book collector, but also collected ornaments for the tree that were
very odd. He had an amazing sense of humor and his favorite sign,
that he collected during the depression, was from one of my
mother's family haberdashery stores. The sign said "Tiger pants half
off." MY father just thought that was the funniest sign he ever saw,
so he brought that out every year and hung it on our Christmas tree.
Refo:
<laughing> Where is that sign now?
Schroeder:
<laughing> I don't know. I wish I had it.
Refo:
That's great. so when you were in high school at some point
you obviously started thinking about where to go next. was there
ever a question in your mind about going to college?
Schroeder:
Oh no, no, there never was a question about going to college
and there was never a question in my mind that I should leave
Champaign-Urbana. It was not that I wanted to leave home. 1
thought it was very important that I get out of Champaign-Urbana.
£1
I learned a great deal from growing up in a university town. It was a
great influence. I thought I was going back to it when I moved to
Arizona and then found out too late that I was actually moving to a
big city. I wanted to go east because that's where it seemed the
good colleges were. Also I wanted to go to a co-educational school;
that was very important to me. Although I applied to Wellesley
because the seven Sisters, as the leading women's colleges were
then known, were well organized in Champaign-Urbana. The alumna
would put on teas for the girls who were thinking of going to
college in the east and then they would have graduates of each of
the seven Sisters of Bryn Mawr and Barnard, Radcliffe, Pembroke,
etc. talk about their schools. I applied to Wellesley because the
woman who promoted it at the tea emphasized it was close to a lot
of mens· schools. That had a certain advantage to me in my
impressionable youth, but I wound up going to Swarthmore because
it was coed, and small and I wanted to be near a city with a great
symphony orchestra. That was very important to me because had
learned in high school that I really loved music. I wanted to be near
a great city, but I didn't want to live in a city. I wasn't prepared for
that. Swarthmore was near Philadelphia with a great orchestra,
some great museums and so Swarthmore seemed to be a good fit
for me.
Refo:
so what year did you enter Swarthmore?
Schroeder:
1958. The fall of 1958.
22
Refo:
And did you, were you on scholarship?
Schroeder:
I had a little scholarship that was just enough so that my
parents could make it and save to educate my younger brother.
Refo:
were they supportive of your decision to go to Swarthmore?
Schroeder:
Oh absolutely, absolutely. They thought it was very important
that I get out of Champaign, Urbana and that I go to an eastern
school with a great academic reputation and opportunities, and so
there was never any question.
Refo:
Do you remember how big the school was and what the split
was between men and women?
Schroeder:
It was just about even, the split between men and women I
think when I was there, it's a little larger now, there were about 900
students, with between 200-300 students per class.
Refo:
Did everybody live in the dorms?
Schroeder:
Pretty much, pretty much, and it was a very strict
environment. I was quite amazed. MY parents had raised me
without any curfews, except when I asked for one. If I was a little
dubious about where I was going I'd make sure that they told me to
be back by 11. But it was a very strict environment for the girls in
23
college then. You were only permitted one weekend away from
campus per month, as I recall, and you had to be in on weeknights at
a certain time. They would lock the doors on you after midnight on
weekends, and I was kind of surprised by that.
Refo:
No boys allowed upstairs?
Schroeder:
No boys allowed upstairs except on Sunday afternoon and
then you had to have the door open wide enough so that a foot
could go through it. <laughter>
Refo:
Two feet on the floor <laughter>.
Schroeder:
Absolutely, absolutely.
Refo:
That's funny. were there women on the faculty at
Swarthmore that you got to know?
Schroeder:
Yes, there were women on the faculty at Swarthmore but as I
recall the person who. I think was nicest to me was the Dean of
women, Susan Cobbs. 1·11 never forget her wonderful voice. She was
from the south. MY junior year she came up to me, and she said
"Mayree" and I said, "Yes, Dean Cobbs?" "What do you plan to do after
you leave Swarthmore, Mayree?" and I said, "Well, Dean Cobbs I'm not
sure. 1 think 1·11 probably go to graduate school." And she looked at
me and she said, "To what end Mayree?" <laughter> and I responded,
24
"To what end? Well I don't know, I'm not sure; there are a lot of
opportunities out there." "Do you think you might want to teach,
Mayree?" And I said, "Oh yes I might want to teach." "Well that's
good because we have a scholarship for someone who would be a
good teacher and we thought we'd make your scholarship that
scholarship, as long as you haven't ruled out teaching." It didn't give
me any more money; it just gave my scholarship a name. But I never
forgot the line, "To what end, Mayree?"
Refo:
Right. Great! Did you view Swarthmore as a good school for
women? Is that one of the reasons you chose it over other places?
Schroeder:
I chose it in part because women could go to college on a day
to-day-basis with men. That's the way that I had enjoyed high school
and that's the way that I wanted to go to college. Swarthmore was
a great shock to me intellectually, however. I had not ever been up
against people with superb prep school educations and so I faced
what I think most people experience when they go east to school
from a public school. My children went through it: the shock of
being with many students who had had superb prep school
educations or come from New York, or Chicago's north shore and
those super high schools that they have there. It is so competitive
for those eastern students because there's so many of them that
they're just infinitely better prepared. I went to my first English
class and they were discussing symbolism and I didn't know what
they were talking about. 1 read a lot of F. Scott Fitzgerald. His novels
and his short stories resonated with me because many were about
25
mid-westerners who were in a wholly different eastern
environment. I still read them because he's such a great writer, but 1
read them then because he was talking about the kind of experience
that struck a chord with me. I felt I was in a somewhat alien
intellectual and competitive environment. There was a program at
Swarthmore called the Honors' Program, where the smartest of the
smart students attended seminars on very broad topics and write
two or three papers every week.
Refo:
were you in the honors group?
Schroeder:
Well I was and I wasn't. 1 was encouraged to go into honors by
one of my professors, who was my great mentor at Swarthmore,
Professor Pennock, in political science. I was admitted to honors on
a probationary basis. After a while, 1 decided that maybe this wasn't
the thing for me, and that was agreeable to the professors too. we
worked out an agreement that now I think was a very forward
looking. I would be permitted a certain number of seminars, but 1
would also be able to take regular courses. I wouldn't graduate with
a degree with honors, but I would be able to have the best of both
worlds. I took economics and history and political science seminars
and courses in Shakespeare and Renaissance Painting. That became
quite standard sometime after that, taking both seminars and
courses. 1 got through the first couple years at Swarthmore and the
shock of getting C's and not really knowing what I was doing. But,
once I got to the place where I was writing papers and was actually
26
taking courses that I wanted to, it was a great experience for me. I
enjoyed the last two years very much. The trauma made some very
good friends and with at least two or three of them I've remained in
touch through the years. It was a big deal for me when I received _an
honorary degree from Swarthmore this year.
Refo:
How nice. When was that?
Schroeder:
In May.
Refo:
Of this year?
Schroeder:
Yes.
Refo:
Fabulous.
Schroeder:
It was a great event for me.
Refo:_
I could ask why it took them so long (laughing>
Schroeder:
That's another story.
Refo:
Let's stay on that for just a moment. Telling me about going
to get that honorary degree.
Schroeder:
well I had had some calls from the Development Director at
Swarthmore looking for money, and I told him I had never been
27
invited back to talk to the students and I would really love to do
that. It seems they don't pay much attention to alums west of the
Mississippi. When the Development Director did come and visit my
office about five years ago. 1 was Chief Judge of the Ninth Circuit.
When I told him Swarthmore had not invited me back to talk to the
students, he said, "you know there's something wrong here." 1 have
a very good friend who went to Swarthmore and the university of
Chicago Law School a couple years ahead of me who practices law in
San Francisco. David Bancroft and his wife Cheryl are lovely people,
we have often shared the observation that Swarthmore never seems
to pay any attention to us. After the chat with the Development
Director I did get an invitation to give a major lecture, but they sent
me the invitation in August for a lecture in October, so I said I was
booked, but let's talk about this for some other year, and I didn't
hear anything further. I must have complained so loudly to so many
people close to the school, including a member of the Board of
Trustees that one day I got a call from one of my classmates, now
one of the deans, who told me that the Board had voted to give me
an honorary degree! 1 was absolutely dumbfounded at the
ceremony. I didn't think I even belonged on the stage because the
other recipients included a physicist who makes electronic cellos for
Yo Yo Ma on the side, and a philosopher from Cambridge who has
done path breaking work. When I got up, I thought, "What am 1
doing here?" But the President had researched my background, and
talked about my life and the cases that I decided. It turned out the
students just loved it because I had done things that they could
28
identify with and understand - when I walked back up the steps after
the ceremony and my little five minute talk, people shook my hand
and said "You are an inspiration," I was dumbfounded, because the
last time I walked up those steps, in 1962, I had my B.A. with no
"honors". This was a great day for me.
Refo:
I bet it was. 1 bet it was. Well let's go back to Swarthmore
outside of classes. What kinds of things were you involved with at
the school?
Schroeder:
Oh I did some music and I used to go into Philadelphia often to
the Philadelphia orchestra. 1 was in the chorus. That was the
greatest musical experience of my life. 1 had almost no talent, but
they had a choral director who let everybody into the big chorus
that sang once a year with the choruses of Bryn Mawr and
Haverford. we sang the Bach Magnificat with the Philadelphia
orchestra and so there I was, in the second to last row of the second
sopranos, with my little high heels, unsteadily perched on the riser,
but I was there--with Eugene ormandy and the Philadelphia
orchestra. It was such a thrill.
Refo:
I bet it was. was any of your family there in the audience?
Schroeder:
Oh no, no, no. There were hundreds of singers. Of course,
some of the others were very talented had been doing this kind of
thing all their lives, and they had already sung the Magnificat many
times and knew it all by heart. I think the next year we did it with
the Messiah and everybody knew the Messiah, of course, except me.
I know it now though.
Refo:
Now am· I right that you were a bit of an activist in college?
Schroeder:
Well I wasn't really an activist but, you see, those years were
significant because that was the beginning of the civil rights
movement and those were the years when the Freedom Riders were
riding in the south. I wanted to do something to help, so I went in
to Chester, Pennsylvania which was near Swarthmore, and a very
segregated town. we did a sit-in at a lunch counter. My job was to
stay outside to count how many white people went in despite our
protest. It wasn't much, but I was really quite moved by the student
leaders of the civil rights movement who came through the colleges
to raise money. one of my friends went down to join the freedom
riders and it was quite a heady time. Brown v. the Board had come
down and it was my generation that was actually changing things,
and I thought that was just wonderful.
Refo:
Did those feelings and watching the civil rights movement
have any impact on your decision to go into law?
Schroeder:
Oh yes. When I was at Swarthmore, I got a little Ford
Foundation grant to go to Washington o.c. and study some
legislation. My mother had been active in politics downstate, in
Illinois, and my father had had a student who had been the
30
President of the Oxford union Debating society. MY father's
student, Howard Shuman, had come back to the united states and
gone to work for senator Paul Douglas of Illinois, so I contacted
Howard. senator Paul Douglas was one of the great figures in my
life. He's now under appreciated, but the university of Illinois has
an award called the Paul Douglas Ethics in Government Award. Paul
Douglas was an economist who took no gifts. He founded the
environmental movement, really, by saving the Indiana Dunes. He
was a great senator, elected in 1948 with Harry Truman and Gov.
Adlai Stevenson. My father's student had come back from Oxford to
become his legislative assistant, so I cooked up this scheme to get
the little grant to live in Washington for the summer. Through
senator Douglas· office's help I was able to study the passage· of the
Truth in Lending Act. That was his baby, and I became fascinated
with the whole process of legislation. I talked to the banking
lobbyists; I talked to the consumer lobbyists. It was just so
interesting. I wrote a little paper that wasn't really very good but I
got an education. 1 went back to D.C. the next summer and worked
for senator Douglas as an intern for almost nothing, but it was a
good opportunity. 1 learned from the time I spent on the hill. Most
important, 1 learned that while the women were expected to type,
the men would go to the floor with the senators, I needed a law
degree, if I wanted to affect policy.
SESSION TWO
All right, here we are, September 16, 2006 session 2 with Judge
Schroeder and we stopped last time talking about your time in
31
Washington, and after that came law school. How did you get to the
university of Chicago?
Schroeder: Well, it was my last year at Swarthmore and I decided to
go to law school after working in Washington. I knew that as a
woman, I could go nowhere in government without a law degree
from a good school. The question was which law school could I go
to? I took the LSATs and did very well in the LSATs, but I didn't have
the greatest grade average in the world. 1 also knew that my
parents couldn't afford to pay tuition for me in law school and for
my brother, who was about to start college. so I decided I needed
to get a very hefty scholarship for law school. 1 had read something
by Karl Llewellyn that I thought was absolutely wonderful, so I
looked to the university of Chicago because that's where Llewellyn
taught, and because it actually had a scholarship for a Swarthmore
student. This was a kind of affirmative action, as the law school
wanted to have students from eastern colleges, so they established
scholarships for students from eastern colleges. Since I had gone to
Swarthmore on a scholarship because I was from the Midwest, 1
thought this all would work out fine. But the problem was I wasn't
the best qualified person for that scholarship, so I had to figure out
a way that I would become the best person for that scholarship, and
that was clearly by convincing all of my friends who thought they
might want to go the University of Chicago that they should go
someplace else. lLaughterl so I embarked on a campaign, with the
full support, and co-conspiratorial knowledge of the great
constitutional law professor at Swarthmore, J. Roland Pennock, so
32
that all the other better qualified people decided on other law
schools. My friend Marsha Swiss went to Harvard and another friend
went to Yale; someone else went to Columbia, someone went to
Penn and someone went to Michigan. In fact, years later when I was
introduced as a speaker to the sun City Rotary Club by the father of
one of those friends, he introduced me very proudly as the person,
"who convinced my son he should go to law school at the university
of Michigan." so I think it all worked out extremely well, and off I
went to the university of Chicago. The sad thing about it was the
month after I had committed to go to the university of Chicago Law
School, Karl Llewellyn died, and our class at Chicago was known for
many years as the "lost class," because there were so many of us who
had signed on to study jurisprudence under Karl Llewellyn and
couldn't. The university of Chicago Law School turned out to be a
pretty grim experience for me during the first year.
Refo:
In what way?
Schroeder:
Because I was really rather surprised to find that there was no
housing for women law students anywhere near the law school; all
of the graduate women who needed university housing, including
law students, were housed in a rather ramshackle tenement building
at the corner of 55th street and Ellis, in a very bad neighborhood.
And to get to the law school I and the three other women in the law
school who lived in that building had to walk about a mile and a half
and to cross the midway. This was before g~obal warming so it was
33
very cold. we wore two to three pairs of leggings so that we could
take one off, because they were so muddy by the time we got to
the law school, and stow them in a bag in our locker. Then after we
went home, and at the end of the day, we'd take off the second pair
and wear the third because the heating wasn't very good in the
apartment. There was no place where we could eat a hot meal at
lunch because the only dorm facility for law students was called
Burton Judson Dormitory. It was next to the law school and it was
reserved for men. They wouldn't even let women students in to the
dining room to eat. so there was no place where we could get a hot
meal. we could go home and cook a hot lunch, but then we
couldn't get back to the law school without walking another frigid
mile and a half. we generally ate a cold lunch and went home while
it was still a little bit light to have a hot dinner at home. so that
experience was really quite dismal. I was assigned to live in the two-,)
room apartment with a little kitchen in the middle and a back porch
that had steps going down to the ground, but I was fortunate to
have been assigned to live with a woman from Australia by the name
of Marv Hiscock. She had had her law degree from the University of
Melbourne and I think was actually about to start teaching at
Melbourne. Chicago had a program called the "Commonwealth
Fellows." You couldn't do it now because it would probably be
regarded as discriminatory, but it was for students who had been to
law school in common law countries. They were given fellowships to
come to the university of Chicago for a year and they would receive
a JD degree at the end of the year. It was a very good deal for them
34
and there were at least two wonderful people in that program with
whom I have kept in touch with over the years: my roommate, Marv
Hiscock and a fellow by the name of Francis Neat who is the current
president of the International Law society, <which may not be its
precise name>, but is a very well known international law
organization. He is a solicitor in London. so a bright spot was that
Marv was my roommate and we managed to survive by going to the
little market and getting our food and bringing it back to cook. She
had a rather different notion of what people eat than I did and I
recall her making things like a "meringue" that I had never heard of.
we entertained with roast beef and kidney pudding which was all
kind of new to me. But it was a very good experience for both of us.
Refo:
Now did vou get sick in your first semester?
Schroeder:
Yes, it was very cold and I developed some kind of an infection
the night before mv first exam. 1 had a high fever and I collapsed in
the apartment. Marv and Francis Neat and his wife, Trish, took me to
Billings Hospital to the emergency room where I spent a really
dreadful night watching people being brought in as the victims of
knife attacks. I believe there were also two women who came in
after trying to do their own abortions, one with a coat hanger. It
was a formative experience in many ways for me. The next day they
put me in the hospital and the doctor decided I had appendicitis
with the appendix on the wrong side. They were used to treating
rather strange diseases. Billings was a teaching hospital, a very
renowned place - but you didn't get in unless you had something
35
very strange and they rarely saw just an ordinary student with an
ordinary kidney infection. Finally someone gave me a bunch of sulfa
and I got miraculously better.
The problem was I had missed my first exam and Marv Hiscock
went to bat for me. She managed to convince the school that I
could take the rest of the exams in the hospital, which I did. Philip
Kurland, who was the professor of constitutional law, whose exam 1
had missed, didn't want to let me make it up, but relented when
Marv Hiscock convinced the school that it would be outrageous to
make me quit and have to start all over again. I didn't know all of
this until years later, but it had been an all-out battle for her to save
my law school career. I later found out it was, at least in part,
because they would rather not have had women in the school.
Refo:
so they knew it was an inhospitable place for women.
Schroeder:
They made it that wav. They promoted that kind of -an
atmosphere. 1 think we started out with perhaps 7 women in the
class; one wound up in the field of social work; one quit after the
first year and went to graduate school at Harvard and got a PhD in
English; so I think there were about five of us who eventually
graduated. we were all very strong women.
Refo:
out of how many in the class?
Schroeder:
About 1 so who started.
36
Refo:
were there other luminaries in your law school class besides
you?
Schroeder:
we had an interesting class. What happened to that class, the
class of '65, the Lost Class - was interesting. All of the women did
well in their careers. Gail Pollack Fells did spend some time in private
practice by herself, but she was, for many years, with the district
attorney's office in Dade county, which is Miami, and at one point
her beat-her jurisdiction-was the Miami Airport. She took me into
the airport restaurant to have lunch at her special table. She was the
kingpin of the whole Miami Airport because she represented law
enforcement. It was quite an experience to be with Gail there.
Another of our class of women has been the dean of several law
schools, and I think she's now the dean of Georgia Tech Law School.
Another, Judy Lonnquist, I've kept up with the best because she
practices civil rights law in Seattle. She is quite well known there
and is very active politically as well. so, we were an unusual group of
women. we couldn't get jobs in law firms because we were
blackballed by the law firms pretty much. 1 think that one woman
had been hired from the class two years ahead of mine and was a
first year in one of the major firms. But when I visited that firm, 1
was told that while she wanted to do labor law, she'd never be able
to, rather, she'd have to do tax law instead because, "It wouldn't be
right for her to hear the language that was spoken in the course of
labor negotiations."
Refo:
37
You were obviously a strong women before you went into this
environment. Did it change you? Did it make vou more
determined?
Schroeder:
Oh, of course. Of course. I think you become hardened and
much more determined when vou have experiences like that. There
was one woman on the faculty, Soia Mentschikoff, who had been
married to Karl Llewellyn. They had both come to Chicago because it
was the onlv)school that would give both of them a job teaching.
Most didn't want to hire women. She was supportive to some
degree of women. I went to her and asked how to approach
interviews and what I should do. And she was very helpful. 1 was not
getting any decent interviews for summer jobs, and I went to her
and asked what to do. I said, "When I go in, they look at mv resume
and they see mv name is Marv Murphy, and they assume I am a good
catholic and that I will get married and have lots of children, so they
stereotype me from day one. Triple stereotype me, and I can't even
talk to them. What should I do?" And Soia said, "First of all vou go in
and if you are asked a question you sav, 'I do not plan to get married
in the near future' and if they ask you if you want to get married,
vou sav, 'I would like to marry eventually but I do not plan to marry
and when I do marry I do not plan to have children right away.' You
should keep emphasizing the word 'plan· and they will get the hint."
It worked like a charm. I never got a job in a firm but I did get
decent interviews, so it helped me and it sharpened mv
38
determination that sooner or later I was going to become a partner
in a private firm. I didn't know when or how, but sooner or later
that was going to happen.
Refo:
And when that finally happened some years later that you
could first look back with some humor on this experience, I mean
you laugh when you're telling me about it, it wasn't funny at the
time.
Schroeder:
No, but I laughed when I got a good job. What happened
when I was in law school was of course that the Civil Rights Act of
1964 was passed. I say often that when I went to law school in 1962,
few women or minorities were stupid enough to go to law school.
There were very few of us because in part we couldn't get a job. 1
was too dumb to know that, but there was no point in going to law
school if you were a woman or a minority because the jobs were
frozen closed to you. What happened in 1964 was the Civil Rights
Act was passed and they added women, it is said, as a joke to try to
defeat it. Then President Johnson decided to take it seriously and
issued Executive orders to the government that commanded them
to hire women and minorities, give them employment
opportunities now. so all of the agencies then came running to the
major law schools to find women and minorities, and there weren't
any; so I had my pick of all the best government jobs in the federal
government and I took the best job that I could find, that would
permit me to do litigation work. 1 did that because Saia
Mentschikoff had said if you·re a woman you should do litigation
because when you get before the court for your first argument and
you don't cry, the judges will be so surprised that you will win. That
was the way she put it. Really, she may have been right.
Refo:
so, you also had met a guy while you were in law school.
Schroeder:
Yes, 1 did. 1 enjoyed law school once I got through the first year
because there were so few women·and there were all these guys
and they were all very smart. It was the middle of the period of the
draft for Vietnam and so most of the men in our class managed to
avoid the draft by deferments. our class managed to escape the
draft - and so the mens' careers sort of shot up. They got very good . . \
clerkships and for a time not too many years ago, our classmates all
seemed to be running the major firms in Chicago, and a few in New
York and Los Angeles as well. Milt Schroeder was elected the editor
in chief of the Law Review at the end of our second year. I had sat
next to him in one class or another and tried to get his attention and
had totally failed. so I had given up because there were a lot of
other guys around, but he was working for the summer in one of
the Chicago firms and I was working on campus and so we were
both living on the south side and ran into each other. I thought,
maybe I should take him out for coffee, and so we started to have
coffee and we began to date in our third year. 1 knew I was going to
go to Washington and I encouraged him, I guess in my own
inimitable way of guiding other people's careers, I encouraged him
to take a clerkship with earl McGowan on the D.C. circuit. He didn't
40
need any encouraging because earl McGowan had been one of the
great figures of the Chicago legal world. Milt was a democrat, as was
1, and earl had run Adlai Stevenson's campaign for governor. 1 guess
he was also involved heavily in Stevenson's presidential campaigns
and as a result of the Stevenson connection, he had been appointed
to the D.C. circuit. He had also been one of the founding partners in
one of the great Chicago firms. He had taught at Northwestern and
so his clerkship was a prize. so we both went off to Washington.
And that's when we decided that maybe we ought to get married.
He was the best thing that happened to me at Chicago.
Refo:
And you went to the Department of Justice.
Schroeder:
I went to the Department of Justice. I chose the court of
Claims section in the Civil Division. 1 chose that section. At the time,
the head of the civil division was the son of senator Douglas of
Illinois, John Douglas, who had been a partner in covington and later
went back to covington. I talked to John Douglas and asked where
in the Civil Division would there be the best chance to get day-in,
day-out litigation experience. He counseled that I go with the court
of Claims section because he said, in the Appellate section, which
was sort of the prestige section, I'd spend a lot of time arguing
social security appeals in the circuits, and that didn't appeal to me.
The court of Claims was in Washington and there were about 40-50
lawyers in that section handling the cases from the day the Petition
was filed in the court of Claims, through trial, to the time that it was
orally argued on appeal. And that seemed like a good thing to do.
41
so I did that and it was an absolutely wonderful experience. It was
about the best experience a young lawyer could ever have because
it was during the escalation of the Vietnam war. The cases that 1
liked best were the military contract cases. When I first started they
said, nobody with under two years· experience could handle cases
worth more than s100,ooo, and by the time that I had been there
two years they had to increase that to about $5 million, because the
degree of litigation and the cost of it had escalated so much. The
cases were just about money, and people were more concerned
about civil rights and in those days, anti-trust, and criminal
prosecutions. They were the more politically sensitive areas at the
Justice Departments so the line trial attorneys in the court of Claims
section did very, very responsible, quality work and we had the best
supervision possible, without political interference. The head of
that section was a man named Irving Jaffe who was just a model
government lawyer and model public servant. There were a number
of supervisors who were very good and who later became judges in
the Claims court. I think some of them recently retired but were
there for many, many years. so it was fine experience for a young
lawyer.
Refo:
Did you have any woman colleagues?
Schroeder:
There were, 1 would say, there were about five women in this
section. one was an older woman who kind of took me under her
wing and introduced me to Julia Child and Mastering the Art of
42
French cooking. so that is another phase of my life that I owe to
being in the Justice Department, because that's how I learned to
cook~
Refo:
Oh that's great.
Schroeder:
It has been.
Refo:
When did you and Milt get married?
Schroeder:
we were married in the fall of 1965.· we had a very small
wedding. we flew in his grandfather from Minnesota to do the
wedding. His father passed away when he was a teenager and left
his mother with three children; the oldest, Milt, was 15. Both his
father and his grandfather were American Baptist ministers. His
grandfather was 82, I think, at the time, and his grandmother ~as 83
and we flew them to Washington for the wedding. They had never
been in an airplane before. we had to go through all kinds of red
tape to make it legal for him to officiate at a wedding in the District
of Columbia, but we did it and he was just delighted. He got such a
kick out of it that he got up at the reception and said, "Now my
authorization for performing weddings in the District of Columbia
expires in six hours and if anyone wants to get married they'd better
come forward right now." lLaughterJ It was very cute. And my
father was teaching that year at Cornell, so my parents came down
from Ithaca. My mother got airsick on the plane and never quite
43
recovered until after the wedding. There were these little planes
that flew around upstate New York in those days. She was in kind of
a state of shock through the whole thing, not only that I was actually
getting married, but to the son of a minister, which was quite a
shock to my family. But we assured them that Milt was not going to
insist upon any issue of our marriage being raised in a particular
faith, and so that seemed to reassure them. My father disappeared
the morning of the wedding to go off to see Jack Kennedy's grave.
Of course the Kennedy assassination was the great historic event
during my law school career that rocked everyone. 1 think my
father, being Irish, never really got over Kennedy's assassination.
And I think for my generation, it was the formative event since it
was the end of the period in which we felt that in America, nothing
bad could happen to us, America was the strongest nation in the
world when all of a sudden the symbol of our generation - our hero
- had been killed and was no more. so the morning of the wedding
my father disappeared to go see Kennedy's grave and we didn't
think he'd ever come back. 1 went to get my hair done with Jackie
Kennedy's hairdresser, M. Guilbeau. <He passed away not long ago
and the obituary in the New York Times said that he had put every
woman in Washington in terrible hairdos with the little pillbox hats
just like Jackie Kennedy. 1 thought, "That's what I wore at my
wedding."> 1 had my hair done with my pill box hat on to look like
Jackie Kennedy. My father finally did return from the grave to the
wedding, and we managed to have it go forward. I asked that there
be no mention of Jesus Christ because of my mother's sensitivities as
44
having been raised in the Jewish faith, and that there be something
from the Old Testament. so the wedding ceremony dragged on
quite a bit as Milt's grandfather seemed to read endlessly from the
Old Testament about the subordinate role of women, which didn't
make mv mother particularly pleased. But weddings are weddings
and it all worked out for the best. we went off for a two day
honeymoon to Williamsburg where I managed to get sick, and that
was the beginning of another long tradition of mine: getting sick on
our vacation time and never on work time.
Refo:
were there many working couples amongst your friends in
those days?
Schroeder:
No. I recall that later a few of mv friends, law school friends
and friends from college, married, and they continued practicing.
But not manv. In Washington I recall the first dinner party that we
were invited to at the McGowan's home which was a lovely home in
Northwest Washington. Mrs. McGowan, Jodie, was a great lady.
Dinner was elegant but after dinner the women went in one room
and the men in another. I recall being absolutely appalled to realize
that there were all of his former law clerks, wonderful lawyers in
Washington, all in a room listening, learning and talking about law
and politics and what was going on in Washington, and I was in this
other room with the wives and where the only subjects of
conversation were recipes and child birth. I recall being utterly
frustrated and saving to myself that that would never happen in my
45
/ !
home, ever. Fortunately, that was a custom that died out very
rapidly after that.
Refo:
At least in this country.
Schroeder:
Yes. Not entirely that rapidly because it was still happening
after we moved to Arizona. It was amazing what women would
tolerate in the fifties and sixti€s.
Refo:
Well you were really finding - - you were blazing a trail in every
sense of the word.
Schroeder:
Well I was on a cusp of progress. I was really very lucky. 1
wasn't consciously blazing a trail I think. The women's movement
didn't start until sometime after that, but Ruth Ginsberg was writing
good things in the sixties. I looked up to her as the "pen" of the
women's movement in the seventies, but I think there was some
inklings of awareness among women while I was still in Washington.
1 wanted to go into private practice. MY aim had been to go into
private practice in Washington with my expertise from government
contract work. And I had had a feeler or two but not anything very
definite while I was in Washington. Abe Fortas· wife was a partner in
Arnold & Porter. But she was about the only one and it was still very
unusual for women to become partners in any major firm anywhere.
Refo:
How did you find your way to Arizona?
46
Schroeder:
Well after Milt did his clerkship with earl, he went with Sidley &
Austin, at earl's recommendation. earl McGowan was Milt's mentor
and a great guiding force in our careers. Sidley & Austin had an
absolutely marvelous lawyer in Chicago by the name of Howard
Trienens, one of the greatest lawyers, perhaps the greatest lawyer
I've ever seen in action. Though I never actually worked with him,
but I heard him argue and I heard descriptions of how he operated.
Sidley had a very small office in Washington, I think they had about
three partners, and Milt and perhaps two other associates. But
Howard worked with that office closely, so earl McGowan
recommended it. Milt worked closely with Howard and became kind
of the fair-haired boy. They really liked him, because he is very
smart. He worked with Howard on the railroad merger cases when
Penn central and New York central merged. Howard was later the
architect of the mega-firm, developing Sidley into the giant firm it is
today. It was the prototype of the global firms practicing today. He
was way ahead of his time. And Milt enjoyed it. It was a great
experience, but he had always had a feeling that he wanted to
teach. we looked at what we were making and looked at what the
future had in store and decided if he didn't try teaching then, he
would never do it because we would simply not be able to afford to
take the cut in salary that we would have to take. I was looking at
the prospects of staying in Washington and raising a family while
maintaining my career and I didn't see how I was going to do it. we
had no independent wealth; I would be on a government salary or
starting with a firm and working very hard, and I didn't think we
47
could afford to educate our children in the private schools in D.C. In
order to have a decent public school system we'd have to live very
far out and that would make commuting very difficult. I just didn't
see how this was going to work. so when Milt said that he thought
he'd like to try teaching, 1 said well why don't you go see earl
McGowan and see what he recommends as places you might look,
because I think this might be a good time for us to get out of here.
<Richard Nixon had been elected President and the Justice
Department was changing.> earl was a very smart man and when we
first married he had called us in to his office and said, "Don't stay in
Washington. You're going to like it in Washington, but get out, and
if vou ever come back to Washington, you will come back at a level
higher than vou could ever obtain if vou stay here." This was
absolutely good advice, because everybody in Washington was
either a lawyer or an economist who worked for the government or
for a law firm; it was not a cosmopolitan city in any sense of the
word. It was a very southern city and very stratified. I thought it
was a good idea to get out of Washington.
so Milt went to earl McGowan and asked what schools looked
good. earl actually recommended ASU. He said, "Well, there's a
person from Northwestern, Willard Pedrick who is setting up a brand
new school." 1 had actually met Pedrick. He'd been a friend of Marv
Hiscock's, and we had entertained him during mv first year of law
school. It became known as a famous Sunday dinner when Marv
turned the oven the wrong wav, all the way up instead of off. The
oven caught fire and we had all the firemen in Chicago converge on
48
us because they discovered that we were living in a graduate
women's dormitory and it was Sunday afternoon, when all the
women in the dorm were in their robes and slippers. The firemen of
Chicago were there for six hours checking out smoke damage in
every apartment in the building. so I had met Willard Pedrick that
day and I thought he was quite marvelous in the way he reacted to a
ridiculous situation, so I said to Milt, "you know that sounds
interesting.II
I'd never been to Arizona, had never thought of going to
Arizona, but I knew that Ed Cleary who was the father of my best
friend back in Urbana, had left the university of Illinois to go to
Arizona state. Pedrick had brought him in as one of the founding
faculty members. 1 said, you know, if Ed Cleary is there it can't be all
that bad, and I called my parents in Urbana and I said I think Milt's
going to go out to Arizona state to interview. They said, "Arizona . .
state! Who ever heard of Arizona state!" They were absolutely
appalled. But I said, "You know who's teaching there? Ed Cleary."
And they responded, "If Ed Cleary is teaching there, then well,
maybe it is not that bad." At that point my back had gone out, and
the school didn't have money to send me out to Arizona state
anvway, so I recall lying flat on my back <which was what they did for
bad backs in those days> in January while Milt went out to Arizona
state to interview. It was the weekend of the Phoenix Open and
there were these magnificent shots of camelback Mountain on
television. It was snowing, sleeting, and awful in Washington.
Richard Nixon had just been elected President and had just been
inaugurated and I said, "I think that we should get out of here
definitely." The Justice Department was beginning to completely
change. They took down all the signs in the Civil Rights Division that
said "Louisiana section," "Mississippi section," etc. and they put up
signs that said this is the "Chicago section," this is the "Pennsylvania
section." It seemed they were trying to undo all of the great work
that had been done in the south during the civil rights era. Milt said
he liked Arizona when he came back from this interview. He had all
these brochures of homes that we could afford, with patios and
swimming pools. I have always loved to swim and hated it in
Washington where I couldn't. 1 thought Arizona looked like heaven.
so without bothering to inquire about what opportunities there
might be for me, but having decided that if it was a capital of a state
and a growing city, and there was a university; there had to be some
opportunities for me.
Refo:
Th is was 1969?
Schroeder:
Yes. we were a little bit ahead of the times too, in deciding to
come to Phoenix. so that's how we got to Phoenix - as a result of
Arizona state university Law School and Willard Pedrick.
Refo:
so you moved to Phoenix having never been even to the state
before?
Schroeder:
Right, I'd never been to Arizona. I was born in Colorado and
had been back to Colorado several times. 1 love Colorado. we had
50
spent the summer of 1968 traveling in the west and had gone to
visit Colorado and San Francisco. It was quite an experience, going
to the Haight and seeing the "scene" in San Francisco. 1 fell in love
with San Francisco and I had decided that some day we're going to
have to live in the west. so the whole move was great for me. And I
thought with my experience in the Justice Department, which was
considered extremely valuable in Washington, that I ought to be
able to get a job in a private firm in Arizona. so off we went with
our high hopes and with all of our possessions and our
temperamental Welsh Terrier in our little car, and we drove across
the country to Arizona.
Refo:
And when you arrived in Arizona what did you find in terms of
your job prospects?
Schroeder:
Not much. 1 had the name of a fellow by the name of Sy sacks
who was a founding partner in what became a well known firm in
Phoenix. He had been in the court of Claims section and had left to
go to Arizona. And so I had his name and I went to talk to him when
I got to Arizona. He said, "well with a degree from the university of
Chicago and Justice Department experience, you ought to at least be
able to get in the door of the law firms if I give you a list of people
in the law firms to call. And he got out the county Bar Directory,
and gave me a copy of the Phoenix firm list and wrote the name of a
lawyer to call beside each firm. He said I could use his name to see if
they might be interested in talking to me. That's what I did. 1 went
down to the old Adams Hotel and made that my headquarters, and I
51
just put dimes in the phone and called all these firms. They said,
"well, we'd like to talk to you, why don't you come in." And so I had
interviews in all these firms, but nobody was interested in hiring me.
The name I had at Lewis & Roca was Jim Moeller. He later left
and started his own firm. 1 had his name at Lewis & Roca and I had
been told that Lewis & Roca once had a woman associate, so I was
optimistic. It turned out it was Maryanna Roca, the founding
partner's, Paul Roca, daughter. She had only worked there for part
of a summer. But I didn't know that, so I thought maybe that firm
was a good possibility. But nothing concrete happened, and I just
kept making these phone calls and talking to people in firms. I recall
going to Fennemore Craig where I had Phil Von Ammon·s name
because he had been in Sidley & Austin before coming out to
Arizona. Phil introduced me to a fellow by the name of John
O'Connor whose wife was a lawyer. He said maybe I would enjoy
talking to John O'Connor, "Because at least his wife is a lawyer. But
we aren't going to hire any women lawyers here. We'll never hire a
woman lawyer." This is what they all said to me - "We'll never hire a
woman, but it's nice to talk to you." 1 did talk to John O'Connor. He
had a picture of Sandra on his desk and I think she was wearing a
tennis outfit. we talked a little bit about what she was doing. She
was then working in the Attorney General's office. That was my
introduction to the O'Connor family.
so I was having lots of interesting conversations but nothing
seemed to be going anywhere until finally Milt called me at home.
It's the only time in my life I was close to being depressed and I was
52·
taking naps in the afternoon which I've seldom done in my life,
before or since. And Milt called and said_ he'd just had a call from
someone at Lewis & Roca who said that they might be interested in
talking to me. And it turned out that the word had gotten to
Monroe McKay and to John Frank that I had been in and they had
some interest in hiring a woman. I went in to see Monroe McKay for
an interview that was more serious. Monroe said that something
"might be able to be worked out." I didn't know what he meant, but
a few days later he called and said that Justice Jesse Udall on the
Arizona supreme court had just lost a law clerk and that he had a
position open as a law clerk and that he would like to talk to me
about that position. I thought this was great, because at that time
you had to run a six-month residency before you could take the bar,
so I couldn't take the bar until February. A job as a law clerk opening
up the first of the year seemed like a great thing.
so I went out to see Jesse Udall. He was a very lovely man and
very kind and he actually had had a woman law clerk once before.
He gave me the job as his law clerk. Unbeknownst to me at the time,
Lewis & Roca had had a huge explosion the summer before. They
had had a woman come in as a summer associate; most of the
partners had wanted to offer her a job, but she had been
blackballed by a few of the partners. Any partner could then
blackball a hire. so, again unbeknownst to me, that had made
Monroe McKay and John Frank extremely angry, and they decided to
change the system. 1 had read John's book The Marble Palace before
1 had come to Arizona and just thought it was one of the most
wonderful books I had ever read.· 1 thought that Arizona had to be a
53
·, ..•.
civilized place if John Frank was there. John Frank and Monroe
McKay had become so incensed at the blackball system that had
permitted their firm to freeze out women, they had changed the
hiring system and established a hiring committee, of which John
and Monroe were members, along with an associate. so they had
worked a kind of in-house revolution in order to bring in a woman.
And here I walked in the door with the credentials of a university of
Chicago degree and Justice Department litigation experience. While
I didn't know any of this, they had decided if I didn't have two
heads, I should be the person to come in as the first woman. But
they would "park" me for a year, while I ran my residence and while
they decided whether I had two heads, with Justice Udall for whom
Monroe had clerked. so I clerked for Justice Udall, which was very
enjoyable.
SESSION THREE
Refo:
Alright. This is our third session. Today is Friday, October 13,
2006, with Judge Schroeder and when last we left you, you were
sharing a story of having just been hired at Lewis & Roca and the
process by which you got there. so you started after your clerkship
on the Arizona supreme court at Lewis & Roca in 1970?
Schroeder:
Yes. we moved here in '69, in July. 1 took the bar in February. 1
was then clerking for Justice Udall and I started with Lewis & Roca
the beginning of '71.
Refo:
54
How many lawyers were at Lewis & Roca at the time?
Schroeder:
well, I have a picture of us on my office wall. 1 would say there
were about, maybe 40 to 45, and I would have been the first woman.
The story of my hiring is interesting. While clerking for Jessie Udall,
I got a call from Monroe McKay that he'd like me to come down and
interview at Lewis & Roca, and I did. He was nice enough to give me
a copy of the letterhead so I could see how far down, and how far
up all the people were that I was interviewing. Justice Udall had
encouraged me to interview. "You should be working down there
with the big boys" is the way he put it. I was very nervous about
trying to find a job and the interview, I did an all day interview. A
few days later. I thought there was something wrong with me
because I started not being able to eat and couldn't keep any food
down. I thought that I was having a nervous breakdown about the
job and that it was all just too stressful. I told my husband that I just
didn't think I could do this and that if they were to offer me a job, 1
just didn't think I could handle it. I said, "I think maybe I ought to see
a psychiatrist," and he said, "I think you should go and see an
obstetrician first." Well I got the offer, accepted it and then I went
to the obstetrician, who said that I was something like 10 weeks
pregnant.
so I called Monroe McKay and I had lunch with him and I will
never forget the moment after I told him that I was pregnant.
There was absolute silence and then he said, "How wonderful for
you." I knew then it was going to be a big mess for the firm. so Milt
and I went to John Frank's big house on Arcadia Lane which was not
55
far from us. we sat in his huge living room. He had not been there
when I did the interview. He was off on one of his opera trips to
New York. He told us that the only thing to do was to just try to keep
the pregnancy a secret, as long as we could, because there had been
a big blow-up when it had been discovered that they had given me
the offer. one of the partners opposed to hiring a woman had
chased Monroe McKay, around the pool table with a pool cue, hitting
him. so I said, "Well, I'll see how long I can stay a little bit pregnant." 1
did manage to stay a "little bit pregnant" for about 4 more months
and then, finally, I had to show up in a maternity dress, and that did
not go over very well. I could see that there was a great deal of
buzzing, and talk, and lawyers were kind of closeted together and
saying, "We told you so."
so, the managing partner, who at that time was a wonderful
man named Lyman Manser, came in to see me and I could tell that
he was very agitated. He said, "Well, just what plans do you have for
having this baby - what are you going to do?" I looked at him and 1
had what must have been a stroke of genius u don't have very many,
but that was one.> This was during Vietnam, it was 1971, so I said, "I
thought that I .would take no more time off than the associates and
the younger partners who are doing ROTC or National Guard reserve
training every summer," which was almost a month. He looked at
me and he said, "Well that seems fair." 1 could see the sigh of relief.
This was the way we were going to deal with this problem - the men
go off for military training and the woman has a baby and it's all
56
going to be fair. That worked out extremely well and everyone
eventually did accept it.
so, 1 worked right up to about the time the baby was born and
came back to work sooner than expected because the baby and I
were both very healthy. I did breast feed because I was told it
would be good even if I could only do it for a month. 1 recall my first
night out, my soroptimist Club ca women's service club> had a night
with the women legislators. My first night out, 1 went out with the
women legislators, I had carefully used my breast pump and left Milt
a bottle of about six ounces of milk which I thought was plenty for
this little baby. 1 got a call in the middle of the dinner that I had to
come home because the baby had apparently taken the bottle in
two gulps and was screaming. so it was at that point I decided I
wouldn't breast feed much longer. I nevertheless think it helped
Carrie get off to a good start.
we were very fortunate in child care. When I learned that I
was pregnant, I put out a distress caHto everybody that I knew in
the community, and particularly my network of law clerks up at the
supreme court that clerked with me. 1 said that I needed to have a
full time person to take care of the baby and could they help. The
wife of one of my fellow law clerks taught at a school operated by a
Lutheran Church. She knew a couple there that had been doing all
of the cleaning and taking care of the school for many years. They
had raised one child. The man was about to retire and the woman
was looking for something to do, but she didn't want to work at the
school. so I invited her in for an interview and she looked like
everyone's nanny. She was out of central casting and so we hired her
57
and she stayed with us for about 30 years. She died only about 4 or
s years ago. She died the same week that my mother died. They
were grown up, but my daughters lost their grandmother and their
nanny <whom they called "Nanny">· in the same week. Pearl Meeshe
was her name and she was a gem. She raised the children. we had a
"deal" which, we lived by very well. She would never be asked to do
any cooking and someone would be home by 6 o'clock every night.
Fortunately, because my husband was teaching, he was able to have
a more flexible schedule than 1, so it was almost always Milt. so that
was how we were able to work it out, and I was able to take the
depositions I needed to take and go on the trips I needed to take
and cope with the practice of law pretty well.
Refo:
And what was your practice?
Schroeder:
Well, when I went to work at Lewis and Roca, my principle
expertise was in government contracts. I had done a lot of
government work with hospital construction and building
construction. Nobody in the firm really wanted to work closely with
a woman other than John Frank. And John had trouble keeping
associates because not everyone wanted to work with him. He was
rather a hard taskmaste'r. He would leave for large periods of time
and he tended to dump things on people. It turned out to be the
greatest thing of course that ever happened to me. 1 had read his
book, "The Marble Palace," that came out just before I moved here
and I thought Phoenix was pretty much a desolate place until 1
58
discovered that John Frank was here. 1 was going to practice with
him and give it a try. His practice was a mix of appellate practice,
which I had done a great deal of in the Justice Department, and
construction litigation. He represented all of the unionized
subcontractors in the electrical and plumbing industries. It turned
out that his combination of being a major supreme court au~hority
Cthe principle biographer of Justice Black>, and therefore a premiere
appellate lawyer, - coupled with the construction stuff - fit my
background perfectly. we wound up being a pretty good team and I
really enjoyed doing the construction work. I was very, very, very
fortunate in my adversary. The lawyer who represented the unions
was a man named Andy ward and h·e was one of the fairest and the
best lawyers I have ever known. When contract negotiations went
on into the middle of the night, 1 would get a call from the client
that Andy was going to be there so I'd better come down to
represent them, 1 always knew that Andy would treat me fairly. It
was fun. I recall one day I had lunch with the director of the
plumbing contractor's association - a big guy and a former
journeyman plumber. The next day he told me that somebody had
come up to him afterwards, almost punched him in the nose, and
said, "Who was that pregnant woman you were having lunch with?"
He said he told him, "That was no pregnant woman, that was my
lawyer." 1 just loved that. When I heard that story then I knew I was
going to be okay.
Refo:
That's great.
Schroeder:
so I enjoyed that part of the practice. It was very interesting.
Then, of course, because John did the firm's appellate work, I got to
write a lot of briefs and I did a lot of work at the Arizona court of
Appeals. 1 got to know the judges on the court of Appeals because 1
would take out "special actions" which were the applications for
writs - the court of Appeal a great deal of them. John Frank had
written the special action statute. He had a specialized expertise in
that, so people would come to him to go to get a writ from the
court of Appeals when they were unhappy with a trial court ·
decision. 1 got to know the judges and that was good. 1 enjoyed
that. John was a great mentor and he really believed in building
resumes, - in giving his proteges the most experience and the best
experience. I think women need someone who can do that for
them. somehow they're more reluctant to do it on their own. 1 was
just at a conference where a psychologist spoke to the National
Association of women Judges and the women talked about some of
this - how women differ from men in their willingness to go out and
brag about winning a dinky motion. Men would be up and down the
halls boasting, and the women won't say anything. so, they often
have a greater need for someone who can toot their horn for them
and who can build their resumes. That's what John set out to do for
me.
we represented the hospitals and Walter Cheifetz was the
firm's leading hospital lawyer. The hospitals lost a case before the
supreme court of Arizona involving indigent medical care. The
hospitals were going to have to provide free to newly resident
60
indigents because Arizona had a durational residence requirement
before indigents could qualify for state get medical care. Knowing
that this case might go to the u.s. supreme court, John made a deal
with Walter Cheifetz that, if it did go to the supreme court, I would
get to brief it and argue it. He did that early on, before anybody
knew whether it would ever get there, but it did get to the supreme
court. I did argue the case and it was a great experience. John moot
courted that case with me about 30 times and my father came to
hear the argument because John wanted my father there. MY
father, who was a professor of debate and argumentation, heard a
couple of moot-courts and said, "John, why don't you just do it
yourself?" He thought I was terrible. John said, "No, no, no."
I recall we stayed at the Madison Hotel in Washington. John
rented the "Board Room." It had a long Board Room table in it. He
deliberately did that so that I would do the moot-court argument at
one end and he and my father could stand at the other end, and
make sure I was speaking clearly and projecting to the court. It
worked extremely well. The argument went brilliantly because I had
heard every question 50 times, 1 was a little put off by not knowing
immediately who was asking the questions, that is the hard part of
arguing a case before 9 judges. 1 now really empathize with the
lawyers who have to argue before our en bane court of 11 or 15.
The argument before the supreme court went so well because John
was so dogged in his determination that I would be prepared and
that I would be able to project mv voice to the bench. That's the
kind of person that he was and that's the kind of training that I got
at Lewis and Roca, .and it was superb.
01
Refo:
Well, even today, people would, 1 think, say that the field of
unionized labor negotiations and construction law are probably still
two of the male-d·ominated ...
Schroeder:
That's right.
Refo:
so it's interesting to me that that's where you started. It's
something that, even now, is still mostly a man's world.
Schroeder:
That's right. some of the partners were a little dubious about
my doing that work but they relented. 1 think it was because Andy
ward was such an honorable man and everybody knew that he
wouldn't try to put something over on me and because I think the
clients liked me. They liked being represented by a woman - it gave
them a feeling that they were a little bit special. I enjoyed that and I
remember John saying once, one of his favorite sights, was seeing
me locked in a room with a ton of men, literally weighing 2,000 lbs. 1
recall very vividly, when I was in law school, having an interview with
a Chicago firm and being taken to see the lone single woman that
they had hired. She was pointed out to me because she had
graduated from the University of Chicago the year before. I asked,
"What work is she doing?" They said she was doing tax and probate
work now. "She wants to do labor work but we'll never let her do
labor work because the language is too strong for her." This was the
great fear at the time.
62
Refo:
That you would wither in the face of the language?
Schroeder:
Yes and that men wouldn't talk or deal with women the same
way they would deal with men because they wouldn't want to use
such language. They wouldn't want to use dirty words and
therefore, this would inhibit meetings and negotiations, and indeed,
all of their communication. It's just ridiculous, but it was a very
ingrained attitude. I think that has largely disappeared, thank
goodness. That was a big reason to oppose women in the law - that
the men talked too dirty for women and they wanted to protect
them - a very paternalistic view.
Refo:
Did you do trial.work as well?
Schroeder:
Yes, I did some trial work. I think I went before one or two
juries that didn't work out so well, but I did a lot of hearings at the
Registrar of contractors. It was during the time that I was practicing
that I realized - because I was doing employment law work and labor
law work -that there was no employment law that covered women
in this state. The federal law, Title 7, provided that if the state had a
good system for dealing with employment discrimination, and the
law was as strong as the federal law, then the feds would defer to
the state. I thought that Arizona should have deferral status from
the federal EEOC, which was so backed up it couldn't handle
anything well. we needed a law that was strong to do that. Andy
ward, the union lawyer, was very much in favor of that. so, he and 1
o3
and a few other folks put together a group of lawyers, principally
representing unions, the employers and a few community
organizations, to write a Civil Rights Act that would cover women
and be able to get deferral status. 1 chaired the group, and the bill
we drafted passed the legislature virtually unanimously. That was
one thing that John Frank did not think was possible and
discouraged me from d·oing. Orme Lewis, the Lewis & Roca senior
partner, did not think it possible that it would pass. 1 went ahead
and I learned about consensus building.
Refo:
Is it true that, I read somewhere that two of the partners who
had opposed your being hired in the first place, asked for the
privilege of nominating and seconding your partnership?
Schroeder:
Yes. 1 did not know that at the time, but it was Charles crehore
who had been one of those who had been most adamant. Bill
Granger, I think, was another. They moved my partnership - I don't
think I understood the significance of it at the time as much as John
Frank did. He regarded it as a triumphant moment in his career.
Later I did the wedding ceremony for Charles crehore·s
stepdaughter - because she was so anxious to be married by a
woman judge and wanted me to do it because there must have
been a lot of talk about me in their house. That ceremony was kind
of fun and very rewarding for me and for Charles.
Refo:
64
And you were the first woman partner of any firm of size,
pretty much ...
Schroeder:
Well, that was the way that John Frank billed it. 1 think that was
probably true - west of Denver at least - and east of Los Angeles.
Refo:
Did it feel like that to you when it happened?
Schroeder:
Well, you know, 1 don't think we always realize what kind of
struggles have gone before to make something possible. I've had
moments when I've seen great success on the part of proteges of
mine and I don't think they always realized how momentous it was -
for example, to elect a woman as state Attorney General, or
Governor. It is historic and when we're the ones who're doing it, we
don't always appreciate it.
Refo:
And you're speaking of Janet Napolitano?
Schroeder:
Yes, the Governor of Arizona. That's right, and I think that once
you break the barrier, then things do open up. Roxanna Bacon and I
practiced a bit together. She was the first woman to become
President of the Arizona state Bar and she became a partner in
Jennings Strauss very close to the time that I did - maybe a year or
two later. They moved me up to partnership faster because I had
been in the Justice Department. It was that Justice Department
experience that let me leapfrog, or move up faster than I would
have otherwise. 1 think the partnership sent a very good signal to
os
the community. There were several of us who were in practice and
had children at approximately the same time - Hattie Babbitt and
Roxie and Sarah Grant. we got together a lot and worked with each
other a little. It was a very small support group, but I really came to
believe in women supporting each other. I can recall Hattie Babbitt
and I, because her husband had political aspirations and because I
thought I might want to become a judge sometime, always were
very careful to make sure we always paid our housekeepers - the
caregivers for our children - at least the minimum wage, and we
followed the law to the letter. so we had a lot of amusement many
years later when so many people got into trouble because they
didn't do that; the famous "nannygate." Hattie later became the
Ambassador to the organization of the American states, and I called
her and asked her how the hearing went. She said, "Well you know
how it went. I went in there with a shopping cart full of records of
everything we'd paid our nannies and I sailed through."
Refo:
was Ruth McGregor, now our Chief Justice, also among the
group?
Schroeder:
Ruth came along a little bit later and Ruth did not have
children, so she was not part of this early support network. But Ruth.
and I have been very close for many years. She's a wonderful person
and we're very proud of her as the Chief Justice of Arizona. Of
course, the real path-breaker in Arizona was Lorna Lockwood who
was the first woman to serve as a state Chief Justice, so we have this
66
incredible history of women in the legal profession and the
judiciary. It's just unmatched anywhere in the country.
Refo:
And Lorna Lockwood was very much a booster of Marv
Schroeder, when Marv Schroeder was first nominated to the court.
Schroeder:
She was.
Refo:
Tell us about your going onto court.
Schroeder:
Well, what had happened in Arizona, 1 think shortly after I went
to work for Lewis and Roca, was that there was an election in for
Maricopa county superior court judges. This is a very meandering
response to your question - but you need to understand this
background. There had been a juvenile case in which a Judge was
defeated - Tom Tang was his name. He later went on to the Ninth
Circuit and served with me and I adored him. He died a few years
ago. <His widow is Dr. Pearl Tang who worked for many years with
women's health issues in the county Health Department. She is still
alive and is one of the most admired women in the state.> Tom Tang
had a case involving two juveniles who he sentenced to probation,
as I recall, and then he was pilloried in the press because they had
committed a rather violent crime. There was such a huge outcry
against Tom in the press that he was defeated in his re-election
campaign, even though all the civic leaders of the community got
on the air and took out newspaper ads supporting him. When he
was defeated there was such a negative reaction by members of the
o7
Arizona business establishment to his defeat, and to the election of
judges generally, that they decided that they would pass merit
selection. They did it by referendum when it was quite unusual to
see it happen that way. John Frank was very supportive of merit
selection. Bill Browning in Tucson was particularly strong for the
need for merit selection in this state for the appellate courts, the
supreme court and urban state trial courts. Bill later became a
wonderful federal district judge in Tucson.
so they were able to get that through and shortly after they
got it through, Lorna Lockwood decided that she was going to
retire. She called me up, this was about 1974 or 1975, and asked me
if I would apply for her position on the supreme court. I looked at
the statute and went in to see John Frank who said, "You can't do
that; you have to have been a member of the Arizona bar for 10
years and you haven't been a member of the Arizona bar for 10
years. But there is a lower requirement for the court of Appeals."
Then Lorna called back and said there was going to be a retirement
on the court of Appeals - Henry Stevens was going to retire and she
said, "I don't want to leave the supreme court without having a
woman in the appellate judiciary of the state." She said she would
feel that her life was really kind of a failure if she left and there were
nothing but males in the appellate judiciary. This was quite an
amazing woman. 1 said something stupid like, "Oh my goodness." But
she went on to point out that, "We have merit selection now and
you can probably get appointed because you're the only woman
who is a partner in a major firm." so I thought well maybe I'll try
68
that. John encouraged me and said, "Do it." His great expression was
that you have "to grab the brass ring when you have the chance"
because it doesn't come around very often. He told me to grab the
brass ring and that's why I applied for the court of Appeals. I
became the first person to be appointed to the court of Appeals
under merit selection. I was appointed by Governor Raul H. Castro, a
recently elected democrat.
Refo:
And the only woman on the bench in Arizona?
Schroeder:
No, the only one on the court of Appeals or supreme court.
There were women on the superior court bench. In fact, Sandra
O'Connor went onto the superior court bench soon after I went on ·
the appeals court. Marilyn Ridell had been on the superior court
bench, as had Dorothy Carson, for many years. There were quite
strong women on the superior court bench and there was Lorna on
the supreme court bench. When Lorna left, she didn't want all of the
Appellate courts to be male and I was about the only one that could
qualify at that time because as she knew, one really had to be a .
partner in a firm to go on the appellate bench from private practice.
You couldn't be an associate. so that was my opportunity. 1 was very
fortunate.
Refo:
one of the numbers that I found when I was preparing for this
is that, at the time you went on the Arizona court of Appeals, there
were 2,763 practicing lawyers in Arizona, of whom only 74 were
women.
Schroeder:
Is that right? I didn't know that.
Refo:
Not very manv.
Schroeder:
No and we tried to get some information for press releases
and interviews on how many women appellate judges there were in
the country, and I think the figure that the National center for state
courts came up with was something like 12 ~ that's of all the state,
supreme and intermediate courts of appeals. The only woman on
the federal courts of appeals was Shirley Hufstedler on the Ninth
Circuit. There was no woman in the u.s. supreme court.
Refo:
was it a transition to vou moving onto the bench?
Schroeder:
Well, it was great. I was astonished. MV daughter - our older
daughter was then 4, and the younger one hadn't been born vet. 1
found that I had control of mv time and I could plan. I knew when 1
had to hear cases but I could plan the rest of my day. And I could
hire the law clerk who was going to work with me. 1 didn't have to
take the associates that the firm gave me. I found that I actually had
time to do some thinking and could write my opinions and I loved it.
1 loved it because of that control. I was able to spend some time
with our daughter and then, in due course, discovered I was
pregnant again. 1 had the second daughter while I was on the court
of Appeals. She became the famous "baby born on the bench."
70
There was a wonderful reporter on the Arizona Republic by the
name of Athie Hardt whom I know vou know. Her father for many
years was in the state legislature. Athie wanted to do a story about
me as a pregnant judge and I said, "Don't do a story about me as a
pregnant judge, but when the baby is born and the baby is healthy,
then do a story about me, as the baby's mother, and as a judge."
That would be okay. so she came out to the house and took some
pictures and had a photographer come from the Arizona Republic
and I thought that this would be a nice little story on the women's
page. Then one Sunday morning, I got up early and I hadn't gotten
the paper vet when I got a phone call from a woman who said, "Is
this the Marv Schroeder who is a judge?" and I said, "Yes." She said,
"Well I'm getting a lot of phone calls for vou" and I responded, "Oh,
well why don't vou just tell them to call me?" She went on to sav,
"No, vou don't want these phone calls." She said, "I saw the story of
vou in the paper and I thought it was a nice story but a lot of people
didn't." Well, it turned out that what the Republic had done, because
Athie was leaving and they loved Athie, and they wanted to give her
a front page Sunday story and this was her last story, they put a
picture of me with the baby on the front page of the Arizona
Republic, with the story that I was thinking of taking the baby down
to the office while I read briefs. When people read this, however,
some apparently thought that I had the baby in a drawer on the
bench and was pulling her out to breast feed while I was hearing
cases. 1 never got any of the calls because this nice other lady
named Marv Schroeder diverted them. Nobody ever figured out
what mv husband's name was, so they never found me from the
71
phone book. But the letters to the editor were simply appalling. I
recall one that said, "Your Honor, 1 object." Finally, the then Chief
Justice of Arizona, Duke Cameron, came down to see me. He was a
great man. He said, "You know, I've gotten an awful lots of grief
about this from the Legislature but you know what? That baby was
born on my birthday." He said, "From here on out, 1 told the
Legislature I am going to decree that if any woman judge has a baby,
it has to be born on the Chief Justice's birthday." And that shut
everybody up.
Refo:
That's great. I had not heard that.
Schroeder:
It eventually all went away and Athie Hardt, of course, has
been a dear friend for many years. But she has never really quite
lived down what happened to me as the result of this little story
that was supposed to go on an inside women's page and wound up
on the front page of the Sunday edition.
Refo:
Tell me about some of the cases you thought were important
to you in your years on the court of Appeals.
Schroeder:
Oh, I think one of the most important cases had to do with
telephone rates. 1 had to learn all about rate structure, and how the
corporation commission works. we ultimately ordered a reduction
in rate increases to telephone rates. That was a very significant case.
The plaintiff in that case was Karen Skates, whom you may know.
72
She worked at the time, I think, for congressman Udall and is still
very active in state politics. I didn't know her then. There was
another very important case involving the interpretation of the.
community property laws. I can't remember the details, but it
required interpreting a new statute that had been written
reforming an aspect of our community property law. I had to work
very hard to figure out what it was all about and did much research
on community property law. 1 think I got it right because I got fan
mail from the lawyer who wrote it at midnight in the Legislature
with no books and no way of knowing if he was using the right
language. Then the supreme court of Arizona got it wrong, reversed
me, and the legislature had to re-do the law again. Then there was
the favorite case of my law clerk, Patricia Norris, who now is. a judge
on the Arizona court of Appeals. I learned early on that you try to
write, if you can, for the head notes and for what will call people's
attention to a case. This workers compensation case involved a
claim for compensation by a farm worker who had been gored by a
bull. His argument was that even though agricultural workers were
generally exempt, he would have been covered if he had been
injured by a machine. so his argument was that the bull, because of
its function in life, was really like a machine. Pat Norris and I wrote
this wonderful opinion in which we held for all the world to know, in
a headnote, that "a bull is not a machine."
Refo:
That's great.
END OF TAPE.
SESSION FOUR
73
January 3, 2007 - continuation of interview with Judge Schroeder
Refo:
Where we left off last time was with the discussion about the
cases that had been significant to you during your time on the court
of Appeals in Arizona. we talked some about how you got on the
court and shared a few stories about while you were on the court.
I'm wondering was there any - - we talked about the transition of
becoming a judge, but I didn't ask you, and I'm curious as to whether
there were any particular issues about being a woman at that time
on the court. Obviously we talked about the fact that there weren't
many women on any court in the country, but any reflections on
being a woman and one of the pioneers there?
Schroeder:
I was the only woman appellate judge when I arrived on the
state court of appeals. And I was very conscious of it as were all of
the judges. Of course the most dramatic thing that had happened
was that I had a baby while I was on the court and it created quite a
sensation because I was interviewed for the local newspaper. But
that highlighted for me the unusual image that the public had at
that time of a woman on the bench. The judges on the court of
Appeals, I have to say, were wonderful people. They were just
terrific. Don Froeb and his wife Alice, the late, great Don Froeb,
were charming people. Eino Jacobson from Prescott was just a
delight to be with. I used to joke he was the greatest mind of the
sixteenth century. He was very, very smart and I learned how to
disagree without disliking colleagues and without being disliked.
74
And that was a great lesson. The court had a custom, that I think
may be unique, of having the law clerks confer with the judges. 1
tried it once on the Ninth Circuit and it didn't work at all. But there
it worked and the law clerks participated well. I think one of the
first people I met was the law clerk for Judge wren, who had the ·
office next door. That clerk was Susan Bolton who went on to
become a very distinguished state court judge and who now is a
federal district judge in Arizona and is one of the smartest, most
admired judges on the federal bench. so, it was a great experience ·
not only for getting to know the judges and learning how to be a
judge, but also for learning about the importance of being a
mentor. My second law clerk was Pat Norris who is now on the court
of Appeals. we had one law clerk at a time so it was a one-on-one
relationship and I often yearn to go back to that kind of relationship
because it's so much easier than having to keep track of three
different clerks - - some federal judges now have five law clerks.
Refo:
You mentioned how to disagree without being disagreeable.
What other things, what other judge skills, do you feel like you
learned from your years on the Arizona court?
Schroeder:
well, 1 think the most important skill for any judge, particularly
an appellate judge is to be able to learn quickly. A trial judge too -
any judge - has to have the skill of picking up a lot of information in
a hurry and then kind of forgetting it when it's not necessary to
know it anymore. 1 had to learn a good deal about criminal law and
criminal procedure when I was on that court and I thought that was
75
an excellent experience. 1 had to learn a lot about a subject that 1
had never known much about in the area of utility regulation. And I
thought that skill was extremely useful and valuable for me and has
been throughout my career.
Refo:
Did you want to move on from that court while you were on
it? I mean, was that sort of an ambition?
Schroeder:
Well, I wanted eventually, I think, to be on the federal bench or
on the state supreme court. The opportunity actually came up a
little sooner than I thought it would and I had a lot of internal
discussions with myself about whether I really should try for the
federal bench. Jimmy carter was elected President in 1976 and that
was an opportunity that might not come along again, because he
had announced that he was going to try to have a more diverse
bench. He wanted to appoint women and minorities. And since
there weren't very many out there as state judges, it seemed like it
would be a good opportunity for me. My mentor, John Frank, had
worked very hard for Jimmy carter and I recall when Jimmy carter
came here John made sure that he introduced me to him. I didn't
think it meant much to Jimmy carter, but it sure meant a lot to
John. And senator Deconcini was the senator at that time. 1 had
known Dennis and had worked with him and John on a number of
things while he was in the senate and I was in practice. so you
know, the stars were kind of in order. If I were to do it at all I would
have to do it then. 1 had a young child, a two year old. And that
76
bothered me a little bit, but my husband encouraged me to do it;
said that we'd manage somehow. And so we did.
Refo:
so was it at the time an application process?
Schroeder:
The way that carter set it up as I recall, there were
commissions set up in various regions in order to make
recommendations for the circuits. And then the President and
senators would select from their recommendations.
Refo:
Right.
Schroeder:
so there was an application and I did apply I did actively seek
support from the women in Arizona, who were great. I think
everybody felt that it was time that there were more women
appointed. Arizona had a tradition that was really quite phenomenal
of women in leadership positions.
Refo:
Right.
Schroeder:
so that's kind of how it worked out. If I recall the interview
before this committee, one of the questions I was asked, by a rather
disagreeable person, was I had thought how this position is going to
"destroy my family." And one of the women on the committee
looked over at him and said "How come you didn't ask this question
of any of the last five applicants we interviewed, all of whom were·
77
men?" And as it was related to me later, that had a big impact on the
rest of the commission. It turned out to have helped me.
Refo:
so when was the application process?
Schroeder:
That was in 1979. I was nominated in the spring or early
summer of '79 and I had a hearing I believe in July. And then
everything went on hold because Strom Thurmond, or someone else
in the senate, was angry with Abner Mikva, who was in the same
group of nominees, for his position on gun control when he had
been in congress. so we got held up and that's when I took to
walking and jogging. It turned out to be very good for me because 1
got physically fit. But I drove everyone on the court of Appeals
crazy because I had insisted that they get all the work done and all
the opinions out back in May and then nothing happened for
months and months and months. And I eventually was confirmed in
early September. I took the oath in early October of '79.
Refo:
was there anything special or unique about your hearing other
than that it was your hearing?
Schroeder:
As I recall the committee, there weren't very many senators
there. There was another woman judge who had a hearing at the
same time for the Sixth Circuit, Cornelia Kennedy. After my hearing
began I tried to find my husband and couldn't find him because he
had stepped outside with our older daughter. Then when the other
78
judge went to introduce her husband she couldn't find him either.
And as I recall, she said, "It's a bad day for husbands." But the
hearing was fine. My parents were very nervous about it, though.
My parents were both still alive and back in Illinois and they had
followed politics very closely all of their lives. one of my father's
proteges, one of his debate students had gone off to oxford and
become the President of the Oxford union and then had come back
to work in Washington for senator Paul Douglas of Illinois and at that
time worked for senator Proxmire. He came to the hearing, and I
remember my parents called me and said that Howard had called to
tell them that I did well. They were much relieved. I thought that
was kind of sweet.
Refo:
That is kind of sweet. Now had there been other women on
the Ninth Circuit before?
Schroeder:
Yes. The first woman to sit on the Ninth Circuit, and the
second woman to sit on the court of Appeals in history, was Shirley
Hufstedler, who, the week after I arrived, left the court in order to
become secretary of Education. It was widely assumed that if
Jimmy carter had an appointment to the supreme court he would
appoint Shirley. Betty Fletcher and I came on virtually at the same
time·, and then Dorothy Nelson came a little bit later. In the early fall
of 1980, which was the election year; I recall going back to
Washington for a meeting of the National Association of women
Judges - which had just been formed. They had their first big
meeting in Washington that fall. we went to the White House. BY
7~
that time Jimmy carter had appointed ten women to be on the
federal courts of Appeals, and many other to district courts. we
were known as The Big Ten; a number that is phenomenal when you
think the first woman was appointed by F.D.R., and the second by
Lyndon Johnson, and then Jimmy carter appointed 10, including Pat
Wald, Ruth Ginsburg and me. And we all went to the White House
and met with President carter. we each had our picture taken with
him. There's a famous group picture that I have in my office. I think
it's quite an historic picture, of all of the women judges with Jimmy
carter, including District Judges and Circuit Judges, in the oval
Office. Yes. It was a very exciting time for the federal judiciary.
Jimmy carter did transform the judiciary, and appointed a lot of
African Americans and Hispanics as well. It shocked a lot of people
when we had our first ceremonial sitting of the Ninth Circuit. There
was a Hispanic judge with a beard and a black robe sitting right in
the middle of the first row. Jim Browning was the Chief Judge of
the Ninth Circuit. He did an absolute fabulous job of welcoming all
of these new judges, who didn't look like any judges that had ever
sat on that court before. Shirley had had a pretty hard time as the
only woman in the whole federal appellate judiciary. And it changed
overnight, literally. Jim Browning never bothered to make any
special welcome to anybody. New judges just kept coming in and
the meeting room for the court got bigger. They added 13 new
judges during his tenure including the ten new judgeships. He just
kept adding chairs to the table. He didn't make a big deal of it. we
80
were just all there as judges doing our business. It was quite
amazing.
Refo:
What were the differences that you immediately noticed when
you went on a federal appellate court as distinguished from a state
appellate court? or were there any?
Schroeder:
Well, in a way, the Ninth Circuit is unique because we sit in
several different places. There were a lot of things that were the
same though. The opinion writing process was essentially the same.
1 tried to keep my relationship with my law clerks the same. 1 tried
to develop relationships with the other judges, and I used some of
the things that I learned on the state court in order to promote
personal relationships and professional relationships with the other
judges and spouses. There were a lot of similarities, in that the older
judges tended to be patronizing.
one of the most memorable experiences I can recall was my
first holiday dinner which was in December of '79. The court always
had a holiday dinner and by this time we had added quite a number
of new judges, including Jewish judges. And I was walking up the hill
with one of the most distinguished looking Patrician judges on the
court, a judge from Idaho, Blaine Anderson, a wonderful man. <He
passed away years ago.> He walked me up the hill to the Marines
Memorial Club, where I was staying, because one of the judges who
was an ex-Marine got me a membership there - and it was
affordable on our per diem. we passed the Bohemian Club which
was where we were going to have the holiday dinner that night.
81
And I recall Blaine Anderson saving, "And of course when you go to
the holiday dinner you will go in that bottom door around the side,
not the main entrance." I said, "What?" And he said, "Well ves,
because women aren't permitted in the main entrance." And so I
called Shirley Hufstedler. I said, "Are you going? This club doesn't
admit women." And she said, "Well I'm going." ''I'm going. I've gone
every year. And it's a wonderful dinner." And so we had quite a
discussion among the newer judges as to whetber or not we should
go and I think we all decided that we would go, but we got the
agreement of the Chief Judge that we would never go to the
Bohemian Club again. we never did. But that was the best holiday
dinner we ever had.
Refo:
Well that was hardly uncommon though, in those days. It was
very usual to have women entrances that were off to the side.
Schroeder:
That's quite true. And it never occurred to anybody that
anybody would be offended by that. That was a long time ago. I
don't know that anybody interviewed Sissy Daughtry of the Sixth
Circuit, Martha Craig Daughtry, but she has the great story of the
Florence Allen table. The first woman ever to sit on a circuit court of
appeal.s was Florence Allen, who was appointed by F.D.R., from Ohio.
The men on the court would go out to lunch everyday to a men's
club and leave her behind. She would have someone bring in her
lunch to her and she would eat, alone, in her office at that table. so
to this day the little table that she ate on ·is passed on to the woman
82
judge on the Sixth Circuit. Sissy Daughtry has that table now. It's a
wonderful symbol of what we used to be.
Refo:
Yep. And how old were your daughters when you went on the
Ninth Circuit?
Schroeder:
They were 2 and 7. I think the biggest difference between
state court, which is the original question you asked, and the federal
court, in terms of lifestyle, was the travel. I determined very early
on that I was going to get as much done while I was on the road as 1
possibly could so that I could have a fairly normal schedule when I
was at home; which I managed to do pretty well. 1 think that the
main difference between the federal court and the state court is
that there are just so many more complex issues of statutory law in
the federal court that are just so much harder than the issues that
come up routinely in state court. This is because we have all of
these federal statutory schemes and regulations that from time to
time change - sometimes for the best, som .. etimes not for the best.
so figuring out what was really going on in a case I think seemed a
little harder to me in the federal court. The geographic diversity of
the lawyers and the difference in their backgrounds and skills was
more apparent in the federal court than in the state court. And 1
think that the number of constitutional issues that arise is much
greater in civil cases in federal court then in the state court. And so
it's a very different civil jurisdiction in the federal court, a limited
jurisdiction that differs from state courts'.
Refo:
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Well and it's also by definition a more national stage on which
to be operating.
Schroeder:
Yes.
Refo:
And so that is a difference as well.
Schroeder:
Yes. And you're very much aware in the federal appellate
court that you're only one step away from the u.s. supreme court.
People in the state court used to say that they were very glad that
they had the federal courts there as a backup in some of these
criminal cases incase something went awry. There really is no
backup when you're on the federal appellate court because
realistically the supreme court is not going to correct many case
specific errors - and they are not going to catch all the errors of law.
so you do feel much more final in federal than you do in the state
court.
Refo:
And does that create a difference in how you work with law
clerks, for example? I know you said you tried to work with them
the same in terms of the relationship. But do ...
Schroeder:
No, I don't think so. I think that it's always that "the buck stops
with the judge." I really believe that the judge has to be the decider
and the responsibility is the judge's and so I made very sure that I
understood everything that was going on. I read out loud every
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word, of every published opinion. I continue to do that to this day.
1 think that's very important, because you then have a better sense
of what you've done in the past, and, I think as I get older it's a little
hard to keep a grasp on all of that.
Refo:
Well, share with me how your chambers operates now in terms
of drafting opinions and what not. I mean, what is.the process, the
procedure that you use with law clerks?
Schroeder:
It varies a little. 1 read the cases and the briefs and the clerks
read the cases and the briefs. we have a system in the Ninth Circuit
that we call "bench memos" which is that each chambers prepares a
memo that circulates to the other two chambers on the panel for a
third of the cases on each calendar, so that there's a kind of
common ground memorandum that all the judges have access to.
one of our judges doesn't participate in that. Justice Kennedy, when
he was on our court, didn't participate in that system. But there's
that information for most of our calendars, and then I have each of
my law clerks always write a memo on the cases that are not their
bench memo cases. I always write scribbled notes. My writing is
illegible, so I make illegible notes in the file that the clerks can't read.
1 don't have all the clerks read all the cases. I just divide them. And
then we sit down before we leave for calendar, and we go over each
of the cases and figure out what else needs to be done; what else do
we need to know, and what questions should we ask at argument.
And then we ship all the cases out and we get on an airplane and we
go. 1 still try to get as much done during the court week as possible.
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so if we are going to write a full blown published opinion, I try to
write an outline while I'm there on the calendar in the city where
we're sitting and bring it back for the clerk's supplemental research
and then we pull it together. If it's not full blown precedential
opinion, what we call an "unpublished opinion" - which aren't
unpublished because they're all on westlaw.
Refo:
And now citable.
Schroeder:
But not precedential in the Ninth Circuit. I try to write those
myself or sometimes, as the year goes on, the clerks will write a
draft. And by the end of the year I try to have the clerks draft at
least one opinion on their own so that they can edit what they're
doing ratherthan their editing what I do. But I try to keep control
of the content of what goes into every opinion. I think that's very
important.
Refo:
Your tenure on the court sort of falls nicely into decades since
you first went on almost at the beginning of the '80s.
Schroeder:·
Right.
Refo:
so, let's talk about the '80s and that first ten years on the
court. can you reflect on any opinions that you thought were
particularly of import during that first ten years?
Schroeder:
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Well the great case of the first ten years, the great case of my
career, was Hirabayashi, the Japanese internment case, which was
really quite astonishing. 1 couldn't believe that it was the same
Gordon Hirabayashi case that was the subject of the supreme court
debacle of 1942. He was in the courtroom in Seattle. It was quite an
experience. And I've met with Gordon Hirabayashi several _times
since then. 1 think they've just set up a chair in his name, at one of
the southern California universities in Internment history.
Refo:
can you just talk about the procedural history of the case?
Schroeder:
Gordon Hirabayashi was a remarkable man. He was a student,
graduate student, at the university of Washington when the curfew
and then the internment were imposed in 1942. He refused to obey
and decided that he would rather be prosecuted. He was
prosecuted and the case went to the united states supreme court.
The supreme court upheld the curfew and the subsequent
internment on the bases of supposed imminent danger to the
country by the Japanese-Americans. This all turned out to have been
based on a report that the army falsified. And all of the lies were
turned up in subsequent research 30 years later when all the original
information came to light. The research was done by Peter Irons, an
historian. Hirabayashi, by then living in Canada, filed for a writ of
coram nobis, which is very unusual. The District court upheld the
curfew violation but granted coram nobis on the internment
violation. so both sides appealed. Peter Irons has written about the
argument. It was very dramatic because there we were in Seattle,
87
Washington, which is the city where he was originally convicted, and
the light from the window was shining directly on him during the
course of the argument. The Government perceived that it wasn't
going particularly well; and when the Government lost it, there was
an appeal to the Supreme court. Their argument was that the case
was moot because he was no longer in prison and we rejected that.
I think the line that I liked the best in the opinion was that a person
convicted on the basis of race is lastingly aggrieved. so that was the
great case of the ·sos, and the case of a career. The Korematsu case
was filed in the District court in San Francisco, the district judge,
Marilyn Patel, granted the writ so that case never got appealed to
our court. I did meet Fred Korematsu some years later. He was a
very modest man. His obituary in the New York Time's a few years
ago was monumental. He and Gordon were true heroes.
In the '80s and into the '90s there were several cases that were
very interesting involving women. one was Gerdon v. continental
Airlines which involved a weight limitation for stewardesses. But
they didn't have any for men who were performing essentially
similar functions. This was I think the period when continental had
their ad campaign 'we really move our tails for you.' Another policy
barred pregnant flight attendants - I was proud of my opinion
holding both policies were unlawfully discriminating against women.
In the '90s I recall several cases involving compulsory
arbitration that I thought were very interesting. 1 did not think that
forcing arbitration of employment discrimination claims was
consistent with congressional intend in Title VII. I think our court
88
was pretty good in saying employers shouldn't be able to require
this. The supreme court disagreed with us, but I think congress
eventually fixed. some of the problems.
And then of course in the '90s the environmental cases came
to the fore. we had the spotted owl cases; which were the cases
that perhaps more than any other spawned a lot of the movement
in the '90s to split the Circuit. The Pacific Northwest wanted to use
up their own resources including the trees. They didn't want any
judges from California or Arizona involved. we were in fact
affirming for the most part a wonderful judge in the Washington
District court, the late Bill Dwyer, who had decided in favor of the
owls and the author of many of our opinions was from Oregon. But
that wasn't always apparent to the outside world.
Refo:
so was it those cases, do you think, that led to the Ninth
Circuit's reputation as being the most liberal court among the courts
of Appeals? were there others? First of all, do you agree that for a
while at least that was the reputation of -
Schroeder:
Well that was always the reputation and I suppose it still is the
reputation. 1 think that is the legacy of some of the carter
appointed judges who came in and really felt that they wanted to
do something about carrying on the tradition of changes of the
warren court. 1 also think that the environmentalist decisions in the
·sos and '90s were probably instrumental in that perception. And
then of course in this decade, since 2000, we have had the Pledge of
Allegiance case that caused an enormous firestorm. The actual
holding in the case, once one came down to it, was very narrow.
But the decision wasn't perceived that way. It was perceived as
having struck down the entire concept of God.
Refo:
What are the changes that you've seen in the Ninth Circuit as
an institution in the 27 years you've been on that court?
Schroeder:
Are you talking about the court of Appeals or the Circuit?
Because they're two different entities.
Refo:
Fair enough.
Schroeder:
90
In the court of Appeals, I think the biggest changes come as a
result of the changing personnel: new appointments, and judges
leaving or dying. Technology has absolutely revolutionized
everything. It's made it much easier for a large court to function.
we can now without much difficulty, have a vote on an emergency
case within an hour, after having a full exchange of memos and
views. we don't have to wait for the mail to be delivered.
Technology has been quite phenomenal. computerized research has
made everything so much easier. And also it's so much easier to
track what opinions have been written on a certain subject, what
similar cases are pending in the pipeline, all of these things. It's so
much easier to administer a large court than it us_ed to be. At the
same time, it has made it sometimes too easy to send a memo, so
that buttons get pushed to "send" to everyone when some messages
shouldn't go to everyone. And sometimes people react a little
quickly to reply without thinking. Those are stresses that all
organizations feel as a result of technology.
In terms of the case load of the Ninth Circuit, we've seen a
series of cases with similar issues come in. The sentencing guidelines
came and then the sentencing guidelines came out. so there was a
wave of cases each time. Right now we have a wave of immigration
cases because of decisions that were made in the Executive Branch
Departments to deport more people but reduce the available
administrative review. we expect to see at some point a wave of
cases involving the new Bankruptcy Act.
Refo:
~1
we were talking about changes in the Ninth Circuit in the years
that you've been on the court and vou said that - vou were saving
vou were expecting a wave of cases involving the Bankruptcy Act.
Schroeder:
Yes. It hasn't hit vet, but the new act has a number of very
complicated provisions. we-also have a number of judges on the
court who are eligible for senior. They have been eligible for a long
period of time. After every election there is an impact. I would
expect that we will have a number of judges who will take senior
after the next presidential election and we will see a new group of
judges come in. And each time that a new group of judges comes
in, they seem to have their own agenda for a while, and then we all
adjust. so I imagine that we'll see that again. I won't be the Chief
Judge at that time and that's fine with me.
Now as far as the Circuit itself, which is an entity apart from
the court of Appeals, and which includes, not only the court of
Appeals, but all the District courts, the bankruptcy courts and the
magistrate judges in the Circuit, I think we have been in the
forefront of organizing and networking judges and our lawyers in
order to support the courts. This is something that began with
Judge Browning, who really believed in involving the lawyers to
assist the courts. we have had a Judicial conference for years that
meets annually with lawyer representatives from each of the
districts. Those lawyer representatives come for a certain number
of years and learn something about the federal courts. They are
chosen by the judges in the district that they want to go on and
92
help the Circuit in other ways. we have Rules committees for the
Circuit and District courts that include lawyers. we have an Advisory
Board for the Circuit court that includes our ·best lawyers. They even
have an alumni group.
There are just any number of ways that lawyers can support
the courts. we have had the biggest fight probably than any court
in history just to keep ourselves intact over the last few years as a
result of threats from congress to divide us into three circuits, all of
which I have written about extensively and all of which emanate
from disagreements with a few of our less than popular decisions.
The split efforts have very little to do with judicial administration
because, as I have tried to indicate, it's much easier to administer a
large circuit in these days than it was 20 years ago. some of our
Chief Judges have even advocated that the First and second Circuits
merge and that other courts follow our example and get bigger
rather than thinking we ought to get smaller. we can't make the
west smaller. Recently we've seen a shrinkage in the number of
cases coming out of the Pacific Northwest in relation to the rest of
the Circuit and a tremendous surge of cases in both the District
courts and the Circuit court centering around border issues and
drugs. we also have the high tech litigation in IP and IT. The Ninth
Circuit has taken over from the second Circuit as the leader in
intellectual property law because we are the home of Microsoft,
Silicon Valley, Intel, Qualcomm and Hollywood. one of the major
arguments that the lawyers have come forward with recently in
opposing division of the Circuit is they don't want "pockets of law" in
the west because they make it more expensive and more difficult to
practice. so that has been a substantive change related to
technology in the Circuit that has made it more important that the
Circuit stay together. It has made it also more important from an
administrative standpoint, that we have the judges familiar with
circuit law whom we can send to help when judges get overloaded,
for example, in Arizona or Eastern California. At the same time there
are tremendous problems with communicating with Washington.
D.C. because of distance and time differences. But as far as
communicating with each other, we've gotten much, much, better.
And we could not have kept the Circuit together without the
constant support of our lawyers, and their clients, who have been
absolutely fabulous.
Refo:
Is there any question that the Circuit split issues have been the
biggest challenge for you as Chief Judge?
Schroeder:
I don't think there's any question.
Refo:
Is there any question that, at least so far, success in not
splitting the Circuit has been perhaps your greatest success as Chief
Judge?
Schroeder:
well, 1 don't want to say that that is the greatest success but 1
think the extent to which in fighting this battle we have unified the
judges and the lawyers at every level including the bankruptcy
judges, the district judges, the circuit judges and the bar association
94
has been an achievement. I think there's been a sense throughout
that the federal courts are important, something that we have to
guard and protect. And I would say that I would like to firm that up
in my waning days as Chief. I've met with the lawyers, met with the
judges, talked to them, learned from them, and I think that there is
a sense that the federal court system in the west is something that's
valuable. I think that sense is something I hope will carry forward: an
appreciation for what the federal courts do; and that we really need
them operating efficiently. They perform an absolutely essential
role as the anchor protecting the constitution and trying to ensure
that the laws are applied and interpreted as fairly as possible. And
the state courts need them to protect judicial independence and, as
a former court judge, I know that. And the public needs federal
courts. We've not done a terribly good job nationwide of educating
people and bringing about that understanding of the role of the
courts. But I think at least those in the legal profession in the west
now have a much better understanding that they need to carry the
word to their children and to their clients and to everyone else
that the federal courts are important in protecting our freedoms.
Refo:
1 want to ask you to reflect on two other events and then I'll
get out of your hair for the day. I'd like you to reflect on swearing in
one of your former law clerks as the Governor of the state of
Arizona.
Schroeder:
O.K.
Refo:
And then I'd like to ask you to reflect on winning the American
Bar Association's Margaret Brent Award.
Schroeder:
Well. 1 guess they're related in the sense that I have always
believed <perhaps because of John Frank and the fact that he was a
mentor to just about everybody in the country as a former
professor at Yale Law School and then later as an active national
practitioner> that it's very important to help other people in their
careers, to hire the best people that I can as law clerks who I think I
can work with, and to try to instill in them both some sense of
responsibility to the public and accountability always for what they
do. And so it was a great honor and a joy to swear-in a person who I
brought to Arizona originally as my law clerk, Janet Napolitano, as
Governor. That's just a once in a lifetime thrill that was terrific. we
had two governors elected, or re-elected, in the last election who
were former law clerks of our court. one· is Janet, re-elected as
Governor of Arizona. The other is Deval Patrick, the Governor of
Massachusetts who clerked a long time ago with Judge Reinhardt.
someone on our court quipped, "Well, that's 2 down and 48 to go."
As far as the Margaret Brent Award, I didn't think I deserved
that. one of my colleagues on the court, Margaret McKeown, ran
the drive. 1 hope I can return the favor someday because she's a
wonder person. People rallied and were very supportive. I was very
honored to receive that award because it is such an important
recognition of achievements by and on behalf of women. It is a
recognition of women who contribute to the profession and who
96
help other women advance. That I think is what I have always tried
to do.
Refo:
Alright. Well I hope your history doesn't end today. I reserve
the right to come back at some point in the future.
Schroeder:
sure and if you want to follow up on any of the things I said
something that doesn't make any sense at all please check back. In
college I struggled with French. Finally my poor French professor,
Professor March, ·who was a great Proust scholar, called me into his
office and said, "You are the biggest frustration I have ever had." He
said, "When you have something to say, your ideas are wonderful
and your French is terrible. And when you have nothing to say, your
ideas are terrible and your French is perfect." I didn't get the
language gene my children have. sometimes interviews are a little
like my French experience. When the idea is good the expression
isn't; and vice versa.
Refo:
1 didn't get that gene either. I thank you very much.
[END OF INTERVIEW]
':Jl
