State Bar of Wisconsin

The Woman Has Robes: Four Questions

By Shirley S. Abrahamson

At midmorning on Aug. 6, 1976, Wisconsin Gov. Patrick J. Lucey was in the State Capitol holding his usual Friday press conference. But the subject of the conference was unusual. Gov. Lucey was announcing that he had appointed me, Shirley S. Abrahamson, a justice of the Wisconsin Supreme Court. In my typically shy and retiring way I did not attend the conference but was instead a block and a half away at my law office opening bottles of champagne to celebrate the event with colleagues. Within a few minutes of the announcement several women lawyers and nonlawyers joined us at the law office. They had anticipated the announcement and had gone to the press conference to congratulate me, only to find I was not there.

I welcomed these friends and strangers to our office because my appointment was a recognition of their efforts as much as mine. For many years these women had worked - in state and local politics, in volunteer organizations, in business offices, in the women's movement, and in their day-to-day lives to break down the barriers that prejudice against women had erected. That day an improbability had become a reality: a woman was named to the formerly all-male Wisconsin Supreme Court.

Not long after the women arrived, the Capitol press corps called to request a news conference. They explained that although all appointments to the highest court of the state are news, my appointment was especially newsworthy. I would be the first woman to serve on the Wisconsin Supreme Court, only the third woman ever to serve on any Wisconsin bench, and the only woman sitting on the Wisconsin bench in 1976.

The news conference was a first for me, and I had not thought about or planned for the event. The questions the reporters asked in 1976 have been asked repeatedly since then and I am still trying to answer them - for myself and for others in both public and private settings. I share these questions and answers with you because I am sure every woman who has been appointed or elected to the bench or another position has faced similar questions. I wonder how you handle them?

Question No. 1: "Were you appointed because you are a woman?"

Had I anticipated the question, I would have realized how obvious it was, given society's expectation that a woman could not make it on her own merit. I thought, "What a shocking question." It implied that I was appointed not on the basis of professional and personal qualifications but due to the accident that I had been born a woman instead of a man. For years I had heard remarks of this kind: "You were able to go to law school, become a partner in a leading law firm, be a professor of law at the University of Wisconsin, despite being a woman? Fantastic! That means you must be twice as good as a man because in this male world a woman has to be twice as good and work twice as hard to get the same place a man does."

On that August day I could only answer: "I am confident that I was appointed on the basis of merit. I am sure the governor selected the lawyer who he thought was best qualified for the position."

In later years I decided that humor was the better way to handle the question. How many times had I heard my mother and father make their points with a funny story?

So I now say: "I have it on good authority that when the governor pondered who should fill the vacancy on the Wisconsin Supreme Court, he asked the staff for a job description, a list of necessary and desirable qualifications, what hardships the job involved, and a list of nominees. The staff told the governor the nominee must be a lawyer who had at least five years of legal experience. The lawyer should be capable of rendering fair and impartial decisions, should have good 'lawyering skills,' and should be able to work quickly and well under a heavy case load. Most important, the lawyer should realize that judges are overworked and underpaid. The governor muttered: 'Overworked and underpaid. Overworked and underpaid. That sounds like woman's work!' The governor then asked the staff to compile an alphabetical list of women lawyers. Needless to say, my name was at the top of the list and I got the nod."

I am convinced that governors in other states fill vacancies in their courts in a similar way. Soon after my appointment, Ruth Abrams was appointed to the Massachusetts Supreme Judicial Court and Rose Elizabeth Bird to the California Supreme Court.

Question No. 2: "Do you think you were appointed as the token woman on the bench?" (These reporters obviously were going to stay on this tack.)

I answered that "I am not a token anything. I expect to see more and more women on the bench in years to come. When I was in law school, women comprised only 4 percent of the bar; today that percentage is nearly 15. Women comprise 35 to 40 percent of the student body at the University of Wisconsin Law School, whereas I was the only woman in my law school class. Indeed it would not surprise me to see seven women on the Wisconsin Supreme Court some day. I don't view that possibility as any stranger than seeing seven men on the bench, as we have for 128 years."

Now I say, in the words of Patticia Wald, Circuit Judge, D.C. Circuit, that women appointees are not tokens but beacons.

Question No. 3: "Do you view yourself as representing women in the courts?" (There is a pattern to these questions, a pattern I still see.)

Answer: "I represent all the people of the State of Wisconsin. If you view me as representing only women, then you must view male judges as representing only men. If that were the case, men would be overrepresented and the women shortchanged. Just as we expect men judges to treat fairly and impartially, that is, to represent and be responsive to, to judge justly, all persons who appear in court, regardless of gender, race, religion, or national origin, we must expect the same of women judges."

Question No. 4: "Do you think women judges will make a difference in the administration of justice? Will they bring to the bench the important feminine qualities of warmth, love, sensitivity, forgiveness, understanding of human nature, sympathy with the poor and the downtrodden, a desire to help and 'do good,' patience, a willingness to listen, an appreciation of children, family, and humanistic values, an understanding of the harms caused by discriminatory practices?"

I always take a deep breath when I hear this question or one of its variants. The questioner usually has a stock list of the wonderful qualities he or she associates with women. Now I'm trapped. Naturally, I want to have all these wonderful traits attributed to me. It may be useful for me to claim that women have a different perceptual capacity they can bring to the bench. But do I believe that? I have spent a lifetime fighting society's urge to stereotype both men and women. I believe, and I have often said, that men and women are more alike than different, and that there should be equal opportunity for all. We must look not at gender but at the individual, judging each on his or her own merits. So what am I to do now?

Well, I answer honestly. "What does my being a woman bring to the bench? It brings me and my special background. All my life experiences - including being a woman - affect me and influence me. I have been a practicing lawyer and a law professor specializing in tax and business law. Being a woman never stopped me from pursuing a goal. I decided to be a lawyer when I was six years old. My parents were just happy that I no longer wanted to be President of the United States, a career choice I had made when I was four."

At 19, 13 years after I had decided to be a lawyer, I went on to law school at Indiana University. In my second year of law school I began to hear that women really didn't become lawyers. I couldn't get a part-time job while I was in law school because the practicing lawyers, all males, were reluctant to have me in their offices. They were concerned about what people in the community would think if the male lawyer and I had to work together late at night. That was not a persuasive argument to me, a respectable married woman, because the male lawyer already worked with another woman in the office, his secretary.

When I graduated, the dean of the law school told me he was really happy I was leaving the Indiana. That may sound like a curious thing for the dean to say to someone who was graduating first in her class and was considered a good law school citizen. He was telling me that despite my aptitude for law, probably no one in the state would hire me, except perhaps a very large firm that might need a librarian. Now, being a law librarian is a fine career, if that's the career you want and are trained for, but I did not want to be a law librarian.

In Madison I joined a law firm that had been allmale until then. These were men committed to the idea of social justice. My partners and I practiced law together for 14 years. We were a team, but each of us was also an individual. And I, as an individual, was willing to fight for change in laws and law practice where I thought change was needed.

But being a woman, and being a lawyer, are not the only important parts of being me. Part of what I bring to the court is my background as a child of immigrants, raised in New York City, a product of the New York City public schools. When I was born, my parents were relatively new to the United States, and they had less than a high school education. My father owned a small neighborhood grocery store. We all worked in it. I am also a wife and a worried parent of a teenager who insists on using his driver's license.

I think that when people ask if "being a woman" brings anything special to the court, they really are asking whether there is any special sensitivity that a person's background might bring to the court. My gender - or, more properly, the experiences that my gender has forced upon me - has, of course, made me sensitive to certain issues, both legal and nonlegal. So have other parts of my background. My point is that nobody is just a woman or a man. Each of us is a person with diverse experiences. Each of us brings experiences that affect our view of law and life and decisionmaking. The concept of a collegial court is to bring together people who will have different life and legal experiences, who may have different views of law and facts. If all the judges were the same, why have seven?

I have traveled across my home state of Wisconsin a great deal since that press conference in August, 1976, talking with and listening to people in rural and urban communities. I have found great support among the men and women of my state for the concept that people should not stereotype one another. Wherever I go I hear men and women say, "I am not a feminist but I think we should get rid of the illogical barriers such as discrimination against blacks, Jews, Hispanics ... I am not a feminist but I think women should be given a fair shake at any job they want ... I am not a feminist but I think there should be equal pay for equal work." These people don't like to be labeled, but they, like us, are working to change perceptions.

Society has come a long way since I was told that nobody would hire a woman lawyer. There is a little poem affixed to bulletin boards and refrigerators in many homes in Wisconsin that brings me great cheer whenever I see it because it reminds me that we can achieve our goals. It goes like this:

I swear to you
On my common woman's head
A common woman is
As common as a common loaf of bread -
AND WILL RISE.

Shirley S. Abrahamson was sworn in as Wisconsin's first woman supreme court justice in 1976. Twenty years later she succeeded Roland Day as the first woman Wisconsin Supreme Court chief justice. Chief Justice Abrahamson received a B.A. from New York University in 1950, a J.D. from Indiana University School of Law in 1953; and an S.J.D. from the University of Wisconsin Law School (American Legal History) in 1962.

These remarks were excerpted from a speech Justice Abrahamson delivered on Oct. 5, 1980, at the Second Annual Meeting of the National Association of Women Judges in Washington, D.C. The full speech was published in the Golden Gate University Law Review, Volume 14, Number 3, Fall 1984.

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