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good afternoon I'm Martha Minow and as Dean of Harvard Law School it gives me enormous enormous pleasure to welcome you as we honored Tamiko Brown Nagin on her appointment as the inaugural Daniel P s Paul professor of constitutional law I'm so happy to extend a particular welcome to a few special guests we're joined today by several members of tamiko's family her husband Daniel Nagin who is vice dean for experiential and clinical education here as well as get ready for it clinical professor faculty director of the Wilmer Hale Legal Services Center and their veterans legal clinic it's really wonderful to welcome sons Julius and Ivy who have joined us here today as well before I take the privilege of talking about the amazing professor Brown Nagin let me describe the story behind the chair and why it's so fitting that Tamiko is the first to have it Dan Paul earned his JD from Harvard Law School in 1948 he was a leading constitutional and law reform lawyer he successfully argued major cases in the courts including a very significant First Amendment case in the United States Supreme Court that was Miami Herald publishing company versus Tornillo which rejected a state law mandating a right of reply for political candidates on the grounds that the government cannot tell a newspaper what to print mr. Paul represented many other significant clients in the free speech area and also are you ready he was the general counsel for the Miami Dolphins football team so that's nothing bad so he used his legal skills in support of significant public interest causes as well notably environmental causes and community issues and all of his work reflected his studies and Harvard where he was an undergraduate he pursued his law degree and also a master's in public administration the predecessor of the Kennedy School of Government in other words he was someone committed to law and social change and government and how do you make the world better for many years he was a member of the Harvard Board of Overseers following conversations for several with several law school Dean's he made a gift to establish this professorship and in 2010 the law school became the beneficiary of that gift and now we get to award it and to a very very special person professor Brown Aegon's interest in history began early her excellence as a legal scholar is well known let me say a bit about history this was her focus in her college studies at Furman University where she graduated summa laude her law degree at Yale where she served as a yale law journal editor also allowed her to pursue her interest in history and she also pursued a doctorate in history from duke university she clerked for the Honorable Robert Carter of the United States District Court a significant figure in American law and in the civil rights movement she clerked for the Honorable Jane Roth of the US Court of Appeals for the Third Circuit and she worked as a litigation associate at paul weiss rifkind wharton & garrison in new york city as a lawyer as a legal scholar and as an historian she started her terrific career with joint appointments in law and history at Washington University in st. Louis and then at the University of Virginia and then we worked really really hard to convince her to come here and she is here both at the law school and at the history department in the Faculty of Arts and Sciences she co-directs our program in law and history and has brought it to a new height of energy and engagement as a sought-after teacher she teaches classes in American legal history a law and social reform constitutional law legal history workshop and a class on topics on education law and policy Tomiko is an award-winning historian her expertise in constitutional law and in education law and policy are so well known she's published articles and book chapters on the Supreme Court's equal protection jurisprudence civil rights law in history the affordable care act education reform she has also participated in amicus briefs her 2011 book courage to dissent Atlanta in the long history of the civil rights movement won the Bancroft prize in US history highest honor awarded annually to a work in the field of history not legal history history this is really a quite a testament to the power of this book it's a persuasive book that adds innovative insights and uses rigorous scholarship into the civil rights movement and people who want to sit there are many chairs on this side there's chairs over here if you're willing to come over here in his review of this important book in the Harvard Law Review Harvard Law School professor Ken Mack explains and I quote him courage to dissent is unapologetically a history of law and racial politics in the civil rights movement and a social history Brannigan believes that it is her task to take the reader inside the worlds of social movement actors during the civil rights era and to explain in detail why they took certain actions how they understood and responded to law and what consequences their actions had for civil rights politics and he notes again I quote she uses the local story of the movement in Atlanta to challenge what is fast becoming the received with wisdom about an arrow whose history has become a touchstone for a much larger set of debates about the role of law in American society the banker prize is actually one of many many prizes awarded to this important book including the John Philip read book award the American Society legal history award and the zora neale hurston Richard Wright Legacy Award for nonfiction professor Lani Guinier calls the book a masterpiece of rigorous scholarship careful analysis and good old-fashioned storytelling to make a weave storytelling and rigorous archival and analytic work in her writing and it's noteworthy that in the acknowledgments of the book she thanks her parents Willie and Lilly Brown whom she calls the first historians of race in her life she expresses her gratitude to them for their willingness to share their stories about life under Jim Crow in South Carolina and those history lessons from her parents she writes triggered much of her interest in the subjects of race class and social mobility Tomiko is prolific she pens reviews for university presses she published his articles in the opinion pieces in the popular press she's a media commentator for outlets such as NPR The Wall Street Journal MSNBC Times late New Republic PBS c-span but you want to hear from her so I'm almost done along with Professor Gerald Newman she recently Co netted to book reconsidering the insular cases the past and future of American Empire I commend it to you and colleagues I'm gonna just quote from a few have these comments to say about her Marc touchnet says her work on desegregation in Atlanta addressed and challenged by arguments about the n-double-a-cp strategies for school desegregation he's grounded and grubbing around deeply in the archives and produced her much-deserved prize-winning book Michael Klarman says tamiko's book on the history of the civil rights movement in Atlanta is prodigiously researched and elegantly written courage dissent makes important history or graphic contributions along numerous dimensions the importance of disputes between the national civil rights movement and its local counterparts intergenerational conflict among african-americans over tactics and strategy class conflict within the black community the frequent conflicts of interests that arise between lawyers and their clients the interaction and tension between direct action protests and litigation and the diverse ways in which law can shape and influence social change as well as its limitations in this regard the book he concludes is an extraordinary accomplishment Tomiko is currently working on a biography of the Honorable Constance Baker motley the distinguished civil rights lawyer politician and judge I am sure that like me you're looking forward to getting a glimpse of this new important work tonight and after tonight's lecture I hope you will stay with us for a reception in tamiko's honor now I am pleased to introduce to you to Michael Brown Aegon the daniel PS paul professor of constitutional law Wow what a moment thank you to Dean Minow for that lovely introduction and for all of the support that you've given in this project and and so many other of my projects over these past four years I really appreciate it I see many of my colleagues from the history department and from the law school here including folks who have inspired me and who also have offered so much support for me personally and for my work I am so happy that you're here I see my students past and present some of you thank you so much for being here I think that you'll find much in the life of Constance Baker motley to inspire you and I'm happy that you're here to hear about her and of course I want to thank my family for being here Daniel Megan my partner of more than 20 years and my lovely sons Avishai and julius you are my everything and I'm happy that you skipped your basketball practice to be here so I'm honored to discuss the 20th century and its social reform through the life and work of Constance Baker motley motley was a giant in the law she's well known in many legal circles and yet not as well known as she should be in the general public during her time she was called the Civil Rights Queen a term that captured her as a warrior for Justice onlookers were absolutely fascinated by motley few people had seen a black lawyer or a woman lawyer much less the extraordinary calm aegeon of a black woman lawyer and it's heard novelty as well as her talent that earned her the status of an icon of equality making her the counterpart of Thurgood Marshall and yes I said the counterpart there are many people who thought of her in that way Ramsey Clark who was Attorney General under Lyndon Johnson called motley in the same league as Marshall and of equal importance when he recommended her for the federal bench Marshall himself once called motley his equal and what I want to do initially is to summarize Motley's career for those of you who may not know her so well then I'll pan out and talk about the significance of her and of the project that I'm pursuing so motley was the only woman lawyer when she was hired by Thurgood Marshall for the n-double-a-cp Legal Defense Fund in 1945 Marshall hired this young woman on the spot where as Wall Street law firms had taken one look at her and closed the doors I should say that this kind of rejection for women law graduates was not unusual at all many women found themselves in clerical positions because the firms just wouldn't accept women they thought that they had a tradition to uphold and they also consistently cited client preference as a reason to reject women lawyers while in the long term Wall Street's rejection of motley worked in her favor as well as in the favor of America for in the public interest world she gained the opportunity to make civil rights law which is Professor mark to schnitz evocative term to describe how Marshall and his colleagues really created a whole new area of law practice in the years following World War two during her 20-year career at the Inc fun motley developed a reputation as an excellent lawyer she argued ten cases in the Supreme Court winning nine of them and she worked on some of the most important cases of her time including Brown versus Board of Education and that was only the beginning after she made history as a civil rights lawyer she went into a new realm and made history in 1965 New Yorkers voted her Manhattan borough president the first female to hold that position and here she is being sworn in and then in 1966 President Lyndon Johnson appointed her a federal judge when motley won confirmation to the US District Court for the Southern District of New York in Manhattan she became the first black woman ever to sit on a federal court and only the fifth woman so she was truly special and her accomplishments make her one of the most remarkable figures of a 20th century and frankly it's shocking that no one has written her biography before now and yet rebounding to my benefit that said the work that I'm pursuing is not only a biography what I want to do is examine Motley's life but then look through it for the larger context and larger significance I do so on the view that there is properly no history only biography the whole of history can be explained from individual experience as Ralph Waldo Emerson once wrote a term that I take to be an early endorsement of social history now when applied to some figures of course that idea is debatable but not in the case of Constance Baker motley over seven decades of public life she was a part of all of the waves of citizen-led activism that truly changed this country changed our law and changed our policy and it's because her life was so entwined with the centuries changes that I think motley can be understood to represent the American experience she can stand alongside her mentor Thurgood Marshall as a symbol of the second American Revolution and stand beside her client Martin Luther King jr. as a personification of America's struggle to overcome slavery motley no less than these great men can be the person we conjure when we think about the second reconstruction and the movement of movements that followed in its wake now in addition to this overarching claim my project hopes to enter a conversation on three particular issues first there is the gender question still an important category of analysis so many years after scholars like Joan Scott wrote groundbreaking analyses of it to observers motley seemed to symbolize the opening of the American workplace to women and people of color and of course she did and yet behind the scenes she faced setbacks and what I hope to do in this work is to consider how gender shaped her career in hopes of connecting her experiences to the experiences of women today who still face gender related limitations not unlike those that motley confronted second I aim to examine the judicial role when motley was appointed to the federal bench civil rights groups and women's rights groups were so happy they were overjoyed as if they had seen the promised land they thought that if any person could change America through the courts it would be Constance Baker motley the civil rights lawyer this woman this person of color motley that is was a part of the first waves of jurist who were who said about the product of diversifying the bench what I hope to do in this work is to talk about not only the rewards of that project but also the risks third and relatedly I meditate on the James Baldwin question what is the price of the ticket what happens when former outsiders become insiders to what extent can they truly transform American institutions to what extent can they wield power at what personal cost and with what reward for their identity groups today's lecture considers the gender matter in depth offers a few thoughts about the judicial role and then concludes with some questions about the price of the ticket and I hope that in those topics as something for everyone now the consideration of gender mediated by race and class in Motley's life requires us to go back to her origins which is 1920s America where Baker faced constraints because of her gender but she also encountered new independence after all this was the era of the flapper ultimately I conclude race class and culture mediated her experience of gender in a way that facilitated her ascent motley rose from working-class poverty and New Haven Connecticut where she was born in 1921 she lived in the shadow of Yale University where her father worked as a chef for skull and bones the most well-known of secret societies so he spent his life serving wealthy whites and yet the thing to know about her father and her family is that the connection with Yale inspired gratitude not resentment her father took great pride in rubbing elbows with the wealthy acquiring that social capital and the environs of Yale also inspired Muttley who was an intelligent curious girl and a striver she was taught to strive she grew up in a community of immigrants drivers mostly European and attended integrated schools I also have to give some attention to the family's immigrant identity which was critically important the Baker's hailed from the Caribbean island of Nevis the British colony whose sugarcane plantations made it a center of the Atlantic slave trade for two centuries now Nevis and inside also was the birthplace of Alexander Hamilton who as you know is all the rage these days now the Baker's glory in their status as subjects of the British Empire there were third generation Anglicans her parents spoke with British accents and her mother was taken to playing God Save the Queen on the upright piano that sat in the corner of their tiny home yes she did so Baker's cultural experience underscores something that Mary waters has said that Caribbean immigrants are immigrants after all and what I'm explaining is that the immigrant identity and the culture the sense of superiority frankly functioned as a shield for Baker motley including from racism which her family didn't talk about very much gender norms on the other hand were strictly enforced in her family as they saw middle-class respectability including by policing the habits of the women in the house which goes to underscore that respectability was a double-edged sword as many historians including Evelyn Brooks Higginbotham have explained even though I should say that some scholars including our own Randy Kennedy have written that's these mores can be very valuable indeed now Baker motley frequently recalled how gender and class shaped her life she talked about poverty being omnipresent in her youth her family survived the Great Depression she said literally by eating the crumbs that fell from the tables of Yale's wealthy sons and daughters its beakers economic circumstances that stirred a political consciousness just as it did for many working-class people during the 1930s growing up in the Great Depression as well as in an era of flourishing left-liberal coalition politics it's the periods progressive activism that shaped Baker it inspired a life long devotion to the party of Franklin Delano Roosevelt her belief in government intervention to help people who are in trouble and the commitment to reform politics even as a teenager she was a joiner she participated in a long list of organizations it's her political activism that kindled an interest in the law but when Constance explained to her parents that she wanted to go to law school they shot her down in gender terms her mother told her that she should pursue a career that was within her reach so she said why don't you go and be a hairdresser and her father wouldn't even talk to her about what he considered a really silly objective a friend told her that she was crazy to be interested in the law women don't get anywhere in the law she said it's not only that Motley's ambition was impractical it was out of reach financially her parents had no money to send her to college much less to law school and it was because of the help of a New Haven contractor who heard motley speak at the why he was so impressed with her that he offered to bankroll her college and her law school education mottely said that the turn of events was like a fairy tale so off she went to Fisk and then to NYU after a year and finally to Columbia Law School gender shaped her experience of legal education as well but this time in a good way she attended law school during World War two which was a time of opening educational and employment opportunity for women with so many men on the war front some universities including Columbia decided to set aside a few seats for women out of self-interest of course now Harvard I should mention did not do this in fact when queried president Conant reportedly said we have 75 students and haven't had to admit any women well meanwhile back at Columbia motley graduated in a class that included several important women including Bella Abzug who of course was the New York congresswoman now I don't mean to make too much of what Columbia did during the war after all I don't mean to suggest that there was a critical mass of female students who transformed the place there were just a few women and frankly motley had not many kind words to say about her law school experience all she could mustered was I survived and graduated which is not exactly a ringing endorsement well when she did graduate she joined a small group of women who practiced law decades before second wave feminism and well before legends like Ruth Bader Ginsburg arrived at Columbia in 1958 to give you a sense of how small and how special this group of women were considered these statistics during the 1950s and 1960s the heights of Motley's career as a civil rights lawyer women were only about 3% of American lawyers which equaled 6,200 people black women were a tiny part of this 3% 1/2 of 1% which equaled about 30 people so these numbers made mottley virtually invisible in the legal profession but all too conspicuous in the courtroom so she's both an amazing pioneer and what you might think of as the canary in the coal mine after all decades later the ABA is still issuing reports saying that law is one of the least diverse of elite professions following engineering and medicine now let me tell you a little bit more about Motley's career at LDF she worked there for two decades as I mentioned she was a singular woman alongside many intellectual and competitive men there you see her with some of her colleagues including of late great Derrick Bell motley appeared to thrive in this environment judging from her docket it's not only Brown versus Board of Education that she worked on she co counseled the University of Georgia higher education litigation there she is Clemson College the University of Alabama and Ole Miss there she is with jack greenberg and james Meredith motley called her litigation and Mississippi the last battle of the Civil War what she may have spoken too soon now even as she became famous for her exploits in the courtroom she experienced humiliations which were gender and race related particularly when she travelled and this was because white owned hotels and restaurants refused to serve her just the same they refuse to serve her client she was forced to rely on the kindness of local people and often lost weight when she traveled because food was so sparse lawyers refused her the honorific of mrs. they called her that motley woman Sid knowing how transgressive a presence she was in the courtroom and it wasn't only lawyers motley once endured a hearing in a federal court that began with the judge saying well you're a woman which indeed she was moreover her life was often under threat because of her docket in Alabama she was guarded at night by men who had machine guns and during the day she was escorted to and from court by men with handguns as I mentioned she represented dr. King and this was during the Birmingham March but also during his stay at the Reidsville state prison she writes about being sickened with fear from the conditions that she encountered there and yet she thrived including at the Supreme Court where she had a string of victories and I want to give you a sense of the range of her litigation those cases included Boynton vs. Virginia the case that bans segregation on the interstate transportation layer tested by the Freedom Riders her cases included ham vs. Rock Hill and Huber vs. Arkansas which are cases that overturn the trespass convictions of sidon demonstrators and she also litigated Hamilton versus Alabama which established a right to counsel during arraignment for a criminal defendant in a capital case so she was fantastic in the courtroom all while experiencing indignities it's these contradictions in Motley's experience that helped to show why her life and her work are important to know about her narrative sheds light on gender in the professional workplace as well as gender in the civil rights movement adding a perspective that has been dominated thus far by personalities like Pauli Murray Ella Baker shirley chisholm all of whom performed gender and race differently than motley each was known to publicly criticize exclusion and discrimination on the basis of gender while motley by contrast seldom uttered a word about gender inequality and consistently said that she privileged the struggle against racial injustice so what mottely is doing here is distinguishing herself as a moderate and also playing the role of an insider and yet Motley's reticence to discuss how gender constrained her does not mean that she lacked consciousness about it in fact she knew it very well and to make that point I want to return to this lovely picture of motley with her mentor Thurgood Marshall it turns out that the biggest valley in Mont Leafs career occurred in 1961 when Marshall passed her over for the job of director counsel of the n-double a-c-p Legal Defense Fund now a lot of people have talked about the racial politics of that selection process and I frankly for my purposes here am NOT interested in talking about that I want to talk about what Muttley talked about which was gender she believed that sex had played a role in the choice saying that Marshall had difficulty with the idea of a woman in a leadership role now I'm not here to say what Marshall should have done and certainly not in a room of Marshall clerks including my Dean all I can tell you is what motley at Marshall thought Marshall said that he made the decision because of seniority he also said something more interest which was that the choice between motley and Jack greenberg or co-counsel who became his successor was a gamble either way and he chose to gamble on greenberg tomate lee the decision to gamble on the male rather than her the female appeared to affirm a point that scholars of gender now make time and again and that's that perceptions of workers capacity for leadership and leadership itself can be gendered because women can have more difficulty demonstrating gravitas or establishing their competence while also proving themselves likable scholars such as Deborah rody call this phenomenon the double bind I also want to emphasize though that whatever problem whatever disappointment motley had with Marshalls choice she always acknowledged that Marshall had hired her at a time when no one was hiring women lawyers if it had not been for Thurgood Marshall she conceded no one would have ever heard of Constance Baker motley now I want to move from Motley's career as a lawyer to her career on the bench after President Johnson nominated motley to the bench it was not smooth sailing at all Mississippi's senator eastland as well as some New York politico's questioned whether her representation of civil rights plaintiffs posed a problem they asked could she be fair and they held her up her confirmation process took seven months finally she was appointed it was considered as I mentioned a great triumph covered on the front page of the New York Times and if my scholarly objective was only to celebrate progress I would frankly in my work right there and it's tempting but I'm not only interested in that story of progress I am instead interested in a more complicated question and that is the question of what mottely made of the judicial role embedded in Motley's time on the bench is an inquiry about judicial behavior that has been engaged by many political scientists the question of how judges decide and how identity categories and political commitments shape outcomes now Molly knew that her identity mattered - perceptions of her judging in fact in an unguarded moment with a reporter after she was appointed she said everybody will be looking at me as the first woman in the first black woman to sit on the court I will have to work especially hard and be especially careful to keep up with the men she did work hard she was known to work very long hours and yet her hard work didn't prevent many from being skeptical of her when she was on the bench and here I want to pause on this photograph which tells yes it does a picture that tells a thousand words she's here with her colleagues on the Southern District of New York there in the back I want to use two cases to illustrate how identity continued to be a point of contention for motley after she took the bench the first case was blank versus Sullivan and Cromwell to illustrate this point it's a 1975 case filed by female Law School graduates at NYU Blanc and other women alleged a pattern and practice of discrimination by the firm which I think some of you have heard of Sullivan and Cromwell refused to hire female attorneys and when it did hire a few pay them less than men and justified these practices by alluding to client preference as well as the idea that women just weren't suited to this work and so some of the issues that Muttley had encountered early in her career were replicated when she went on the bench monthly drew the case and the firm management was not happy in fact of a law firm can be said to be sad the firm was sad it thought it was very unlucky that constant Baker motley would be the judge who would decide this case which interpreted the Civil Rights Act of 1964 in the context of high status jobs it was afraid that motley would automatically rule against it now instead of just thinking this a firm lawyer articulated this in a letter to the judge he wrote to motley that she should withdraw from the case because as an african-american and a woman she likely had experienced workplace discrimination I believe you have a mindset that may tend without your being aware of it to influence your judgment so in essence this lawyer was arguing that only men and only white men should preside in this sex discrimination case it was unfair that Constance Baker motley would be the boss of the Civil Rights Act that was wrong well judge motley would not remove herself from the case in a short opinion she held that Sullivan and Cromwell had not actually met the requisite legal standard which turned on evidence a personal bias rather than the kinds of conclusory allegations that the law firm had brought to beer moreover motley noted nothing in her nine years of work actually supported the law firms claimed she had ruled against plaintiffs in civil rights cases and against women in workplace discrimination cases in other words she was saying that her actual record demonstrated her impartiality after analyzing the black letter law on judicial recusal monthly turned to the question that was at the heart of the matter cut a female preside in a controversy in which gender discrimination was alleged yes she answered writing it has been beyond dispute that I am a woman and before being elevated to the bench was a woman lawyer however if background our sex a race of each judge were by definition sufficient grounds for removal no judge on this court could hear this case in other words she turns a lawyer's argument on its head it's a terrific opinion a short opinion and one that's routinely cited by treatises for the proposition that sexes are race alone or prior practice experience is insufficient for a presiding judge to be disqualified every judge comes to the bench with the background experiences associations and viewpoints and I should mention that this decision not only is cited by treatises it's cited was cited recently to rebut a demand for recusal of Judge Walker in the California prop 8 case who was asked to recuse on grounds that he was gay showing the relevance of her judicial record to issues in our time now what about the merits of Motley's rulings well on the merits Blake is a really important case it produced a settlement that was favorable to women lawyers in fact Constance Baker motley opened up of a legal profession law firms to women women poured into law firms after blamed the percentage of female associates in large law firms increased from 4% in 1970 to 12% in 1980 to 40% in 2000 on the strength of this precedent and it's not only blink that was important for advancing the interests of women there are several other landmark decisions where motley helped to open up the workplace to women I want to talk about one other case it's a constitutional case that illustrates how groundbreaking mottley was when it came to women in the workplace at least in part the case involved melissa lucky its lucky versus time-warner where motley again toppled a bastion of male dominance and inclusion exclusion this was the locker room of the New York Yankees it occurred in 1977 when this reporter Melissa Lucky who by the way grew up in Wellesley watching the Red Sox play she developed a love for sports and became a reporter for Sports Illustrated she attempted to enter the clubhouse of the Yankees during the World Series hoping for postgame interviews she said it's not a glamorous part of the job of a sports writer it's smelly its sweaty it's awful but that's where the stories are well a barred denied her access as all women were denied access the Commissioner of Major League Baseball justify the policy saying that one it would be an invasion of privacy of male ballplayers privacy because they're walking around in the buff and two because the players wives would be offended now lucky sued and the suit required motley to consider one how far to stretch the state action doctrine and two whether the policy actually violated the Equal Protection Clause on the first issue the state action doctrine motley ended up applying precedent that LDF itself had created in the civil rights context to determine that New York City in the Yankees were sufficiently entwine that state action have been established then she turned to this exclusionary policy and said that yes it violated Lucky's rights she did not deny that there was a privacy interest she said it's legitimate but it didn't justify blanket exclusion of these women sports reporters in fact she came up with a suggestion for the Yankees and other organizations saying let them wear towels so it's because of Blink it's because of lucky that Muttley develops a reputation as being quite sympathetic to women in sex discrimination cases it's also because of the reputation that she develops in cases like this that motley had a hard time when it came around to promotion never elevated to the Second Circuit in part because of this reputation that she was too liberal and as I started to think about these repeated allusions to motley supposed liberalism I wondered if it could be the case that she was really as pearl plaintiff as these high profile cases suggested I thought these cases might be misleading and so what I did was to try to answer this question interrogate this question by turning to empirical analysis following the lead of scholars like Lee Epstein and Cass Sunstein I ended up with the help of some wonderful arrays coding about 1,500 cases Ras and a Harvard statistician the thing that I did was to code cases that are said by political scientists to be ones that smoke out a judge's ideological orientation so these are cases like sex discrimination cases title 7 and some categories of constitutional cases I not only coded Motley's cases but I coated the cases of comparison judges with the view of figuring out if you had a set of judges all of whom were known to be public interest oriented would there be a difference in terms of race for sex in terms of the outcomes so the comparison judges for my purpose were Robert Carter Eadie Weinfeld in June green on the DC Circuit why June green well because there's no other woman who is plausibly a comparison for motley on the Southern District of New York now when the statistician performed the requisite analysis what he found what we found was that as to all of these cases overall there was a race effect meaning race is doing some work as to Bob Carter he seems to be more Pro plaintiff than Ed Weinfeld for female judges there's also a race effect but it's in the counterintuitive direction meaning June Greene turns out to be more Pro plaintiff than constance baker motley and as to these titles seven cases this really tricky category of cases well the fact of the matter is as you can see from this graph Constance Baker motley is not particularly Pro plaintiff if you look at all of her cases moreover no judge is particularly Pro plaintiff when it comes to these anti-discrimination cases as the literature shows and so by using this distinct tool of analysis I learned that Montes record to corroborate a literature indicating that there's actually little evidence to support the idea that female and minority judges actively promote the interest of their groups on the bench particularly at the district court level this is largely a myth and yet it's a myth that can be really harmful to women and people of color judicial candidates to the extent that gender matters it's in a narrow category of cases the sex discrimination cases and a few criminal law cases mostly what judges are doing is voting on ideological lines and so the question that I want to speak to is not the one of whether the outcomes are surprising they're not surprising to me but I do want to comment on what I think is going on here one thing that explains these results is Constance Baker motley x' brief time in the legislature it actually affected her judicial philosophy she said time and again that the role of the judge and the role of the legislature were distinct and it had an impact on how she saw her cases another thing that I would note is that to the extent that motley actually rules in favor of anti-discrimination plaintiffs in Title 7 cases it tends to be plaintiffs who look deserving so the sex discrimination cases involve women lawyers journalists stockbrokers people who are trying to break the glass ceiling and people who are like motley herself in some ways there's little evidence by contrast that in cases involving everyday people in the civil cases that she is going out of her way to be Pro plaintiff the thing the same thing can be said in the race cases in the title seven employment discrimination cases I'll tell you briefly about one case that illustrates the point its Evans versus Connecticut which is a title seven employment discrimination case brought by a police officer where monthly pulled out all the stops she brought in Burke Marshall to work as an expert and to testify in the case and after discovery and a bench trial the police officer prevailed and yet this plaintiff is college-educated he is upstanding in every possible way and so in other words these are the best possible facts the best possible facts so one would expect many judges to reach the same conclusion that she reached so for better or worse Constance Baker motley looks a lot like other judges she tossed out suits by prisoners over prison conditions she sent in to criminals to long term she entered judgments for big corporations but she also did extraordinary things like expanding due process rights for homeless people in New York City she required the Department of Corrections in New York City to provide education for juveniles so in short her record is varied and certainly does it show her to have been the reflexive liberal jurist that some critics feared in some proponents of her candidacy and of diversity on the bench hoped for as to judicial philosophy motley valued professionalism over ideology she was more the umpire than the interventionist as a judge she events many of the classic judicial virtues things like open-mindedness thoroughness to cite decisiveness as her colleague Miriam cedar bomb said when I introvert interviewed her about motley motley called them like she saw them without fear or favorite which of course is a characteristic it is said of the best judges and so I think those who feared that motley would be tribal really misunderstood her and misunderstood all of the factors that might affect outcomes they're hard factors of course like precedent particularly for district court judges partisanship soft factors like personality intellectual disposition the culture of a court in all sorts of variables that are related to the case itself including the quality of lawyering the identity of the parties and so forth and so in the final analysis the question that I want to consider is when the public views is wonderful portrait of montly recently installed by Columbia Law School right across from a portrait of Ruth Bader Ginsberg what should they make of her impact on twentieth-century reform well I propose that we should think of her as having lived the paradox of change to be sure she was a revolutionary as a lawyer although probably less so than she would have thought as a girl growing up in New Haven her ascent to the bench is important for different reasons it's a story of personal success that underscores an anti-discrimination imperative that the judiciary should be open to all people of intellect and character from any practice background although women and people of color of course are still underrepresented on the bench it also is still true that private firm practice remained overs nted among the backgrounds of nominees for the federal bench presumably based on the assumption that working for corporate clients is politically neutral while other forms of practice are political and risky now mommy's story also demonstrates the value of symbolism to the legitimacy of public institutions and in fact when she argued for the inclusion of people of color and women on the bench she said that it was not because they would bring something totally different to the bench than white men instead she said inclusion builds confidence in judgment it makes people feel that government is fair so she's arguing for descriptive representation even if it doesn't yield substantive representation now what about mottely in gender well frankly she is all over the map when it comes to her relationship to the quest for women's equality on occasion she talks about including women in politics because of their qualifications on other occasions she sounds like she is advocating a different voice I think that her inconsistency simply reflects her attempt to wear power in a way that did not offend her sponsors and her constituents as well as in a way that didn't stray too far from respectability but despite her reticence to claim feminism as a label of course she advanced the interest of women in cases like blank and lucky by doing things as a judge like requiring the US Attorney's Office to permit women to actually work in her court by being an example of what women and people of color could achieve so in other words Muttley didn't spend time articulating her feminism she just did it consequently I place her on a spectrum of women's activism that includes people like shirley Chisholm and Betty Ford on and Pauli Murray people who unlike Murr montly motley was playing in an inside game she is not a revolutionary on the bench but she is a workplace reformer motley implemented the Civil Rights Act in her own courtroom she was one of the first judges to hire a diverse pool of law clerks which of course opened up academia to those clerks law firms and the judiciary I talked to all sorts of people who credited motley with being a mentor and with aiding their careers one of those people is justice Sotomayor who crossed paths with motley on the Southern District of New York she called motley very welcoming and helpful as she learned how to be a judge although I should say a very different judge than motley who would never have said that her judicial voice reflected in part her identity which speaks well for motley now I mean that she would mentor someone who is different from herself and part Motley's mentoring of the next generations was impressive in part because no one had done these things for her her judicial colleagues had acted as if she had invaded their private club when she was appointed to the bench they refused to acknowledge her accomplishments but she held her head high and just kept going in hopes of one day ensuring a more inclusive experience for others and yet I have to conclude by saying that all of these matters diversifying the professional Network the symbolic value of women and people of color on the bench they're important but they're only indirectly related to the kinds of issues the substantive issues that motley herself had so cared about as a young activist and lawyer especially the piece of opening up society for the working classes and so ironically ma at least life and work ends up showing how inequality is embedded in structures and can replicate no no matter who is in charge of institutions therefore I conclude that Motley's assent illustrates not only a paradox of change but a paradox of opportunity that Baldwin referred to alluded to when he asked about the price of a ticket motley gained access to power but the price of membership in the power structure was steep being first was an honor but also a burden I'm happy to take your questions thank you it's a fascinating project I had to thought she said she didn't have any mentors on the bench and I was just wondering if she had any mentors in law school and I'm thinking of Justice Ginsburg who had no male no female professors but would tell you that she had someone at Columbia who really went to bat for her Jerry Gunther clerkship I think was important in many ways to her career I wonder if motley had anything if we even know if she had anybody like that at Columbia mm-hmm and then I was just hoping you could tell us some anecdote her most famous client I think was James Meredith you mentioned James Meredith if there's some especially compelling story either about the litigation and her experience in Minnesota Mississippi or her experience with Meredith who we know with the aid of hindsight was a very complicated person yes thank you for those questions the question that you asked about her experience at Columbia Law School is important I know that there are people there who might have been sympathetic but I haven't thus far been able to establish that she was closely connected to anyone at Columbia as I mentioned she didn't have very much to say about her time in law school I do want to stress though that um she of course did have Thurgood Marshall including when she went on the bench in the Southern District of New York including during her confirmation process she said that he held her hand the entire way and she would call Marshall up and they would talk about judging but of course there was only so much that he could do for her in that context she developed after a while a good relationship on the Southern District with people like Marvin Frankel and she was close to a few other judges over time and yet you know the big picture point is that she really didn't have an initially when you know people were stunned that she had been appointed she was she seemed to have been on her own James Meredith is as you say a complicated figure so I interviewed him and he said he had a lot to say about motley including that she had a lot of confidence he said that she was the most arrogant person that he had ever known which is a funny thing to say but he talked about a serious issue one that many scholars of law and social change have written about and that is the extent to which the litigation in these cases these civil rights cases was steered by the lawyers and their prerogatives as opposed to the clients and their wishes it doesn't quite fit with his litigation experience except that the n-double-a-cp and certainly motley they were skeptical of james Meredith at different points or of anyone who would challenge segregation in Mississippi and so it wasn't and all together harmonious relationship but Meredith did have a lot of respect for motley thanks for those questions yes that's why did I ask about I thought that was such a fascinating photograph of her with Lyndon Johnson you could perhaps elaborate a little bit on her confirmation process and what was Johnson's view and how politicized may that have been or not right so Johnson was very supportive of motley and more supportive in fact than the eventual appointment would suggest he wanted to appoint her to the Second Circuit to the Court of Appeals which might have made a big difference in the way in which her judicial career turned out but he got tremendous pushback tremendous pushback from a lot of people and Mike mentioned Justice Ginsburg a lot of what was said was similar in both cases that as a civil rights lawyer what would she do with securities cases she wouldn't know how to handle those cases and and many things that were just frankly just not believable not credible after all she had litigated all of these cases in the federal courts including the Court of Appeals and these people pushed back against her on grounds that she wouldn't know what to do I think she would know what to do but continuing with Johnson she was very supportive of her he had people like Ramsey Clark who was really pushing her Thurgood Marshall of course was supportive of Motley's appointment it was political not only because of Eastland and New York securities lawyers and lots of other people who were just astounded that a woman would be nominated but because of some politics around her activism in New Haven during the 1930s she was associated with the National Negro Congress and with a bunch of other organizations that were said to have been subversive Eastland accused her of being a communist and actually interrogated one of her past clients about her following Lenin and as the story goes her client said who's that which drained all of the political theater out of that exercise and so it took a long time but ultimately she was appointed LBJ thought it wise he cemented his legacy of course in civil rights and also there's a back story about Robert Kennedy as you know there was a lot of enmity between them and because of some issues in New York politics Kennedy actually was opposed to Motley's appointment and so Johnson just went ahead and pointed pointed her and then in the oval office called up Kennedy to say come and speak to judge motley so you know poking his finger in Kennedy's eye so there are there lots of stories very political thank you for that and then they stopped judging where you say that the things that people expected if we sometimes get quite do the first person first person being revealed as outsider having to seem so much like inside and that's a version of the politics of respectability and you know and maybe generational that so much yeah so that's a great set of questions of course I do think that there is that there are generational differences between motley and someone like Bill hasty and a bunch of these early judges that explained why they felt as if they had to be almost more establishment than the establishment right in order to fit in so that's that's a lot of what is going on here but at the same time I do think that motley represents the phenomenon of really buying into respectability right that's the story that her her background her immigrant background is telling us so I don't think that respectability is you know merely convenient it's something in which she believes in part and in terms of the question of you know how would you tease apart the effects of generational politics being first versus a sort of a profound Morrissey or conservatism well I think you would have to engage in some of the empirical analysis which frankly I'm just not that committed to it's just sort of a sliver I wanted to count some cases and see how she would look as compared to some other folks on the bench but I just I it's not it's not my stick to analyze you know all of the black judges who were appointed between the 1960s and and 2000 or something although that would be a great project for someone who has the time and the skills to do that so there are many many more questions we have one more thing that we need to do okay I am going to give you the chair so to answer that was magnificent I hope everyone will join us for a reception about to happen and there are many questions and I think you're gonna get many more it's a just a fabulous project thank you so much thank you you