Barbara Babcock Oral History

Barbara A. Babcock
January 18, 2006; January 25, 2006; February 1, 2006;
February 8, 2006; February 15, 2006; February 22, 2006;
March 2, 2006; March 8, 2006; March 22, 2007
Recommended
Citation
Transcript of Interview with Barbara A. Babcock (Jan. 18, 2006; Jan. 25,
2006; Feb. 1, 2006; Feb. 8, 2006; Feb. 15, 2006; Feb. 22, 2006; Mar. 2,
2006; Mar. 8, 2006; Mar. 22, 2007),
https://abawtp.law.stanford.edu/exhibits/show/barbara-a-babcock.
Attribution The American Bar Association is the copyright owner or licensee for this
collection. Citations, quotations, and use of materials in this collection
made under fair use must acknowledge their source as the American Bar
Association.
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.
Contact
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Trailblazers Project. Questions regarding copyright use and permissions
should be directed to the American Bar Association Office of General
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ABA Commission on Women in the Profession
Women Trailblazers in the Law
ORAL HISTORY
of
BARBARA BABCOCK
Interviewer: LaDoris Cordell
Dates of Interviews:
January 18, 2006
January 25, 2006
February 1, 2006
February 8, 2006
February 15, 2006
February 22, 2006
March 2, 2006
-March 8, 2006
March 22, 2007
TOPICALAREAs
The major topical areas covered in the Oral History of BAB
Tape1
• Decision to go to law school
• Law school experience
o being one of the few women
o performance in class
o publishing articles
o law review officer rejection
• Clerkship experience
• Exposure to civil rights movement
o living with Eleanor Holmes Norton
o march on Washington -1963
Tape2
• Biographer’s perspective (along with an abbreviated version of career plot)
• Some specifics about job at PDS
• Teaching at Georgetown
• Teaching Civil Procedure at Stanford
• Foltz Epiphany
• Start at Williams & Connelly
• More information on PDS
• First trial (Moseley)
Tape3
• Moseley (first trial continued)
• Last case (Clinton Phillips Jr.)
• MayDay
Tape4
• Religion
• WorkatPDS
o getting the statute passed
o the office’s mission
• Support system and family relationships
• The worst experience at PDS: the Cockerham trial
• The best experience at PDS: the Gravette trial
Tapes
• Feminism and the women’s movement
• Teaching at Georgetown
• Writing casebook on sex discrimination
• The decision not to have children
• Involvement in the Equal Rights Advocates clinical program
• Interviewing for a job in the Carter administration
Tape6
• Visiting professor at Hawaii / Tenure decision
• Running the Civil Division of DOJ
• Arguing Before the Supreme Court
• Decision to leave the Civil Division
Tape7
• Identifying women for judgeships
• Teaching Criminal Procedure for the first time
• Finding Foltz
Tape8
• Teaching philosophy
• Cancer
• Retirement
Judge Cordell:
ORAL HISTORY OF BARBARA BABOCK
FIRST INTERVIEW
JANUARY 18, 2006
This is January 18, 2006. My name is LaDoris Hazard Cordell. I’m
taking Barbara Babcock’s Oral History for Women Trailblazers in the
Law, Commission on Women in the Profession, a project of the American
Bar Association. This is our first session, probably one of many. So
Barbara, where would you like to start?
Professor Babcock: I think I’d like to start with law school. When I was graduating from the
University of Pennsylvania in 1960, the idea of a girl going to law school
was very unusual. In fact, I think I was probably the only woman in my
college class who went to law school. That’s how different it was.
Judge Cordell: So when in college did you decide law school was it?
Professor Babcock: Well, I had always been thinking about law school; I had been thinking
about law school and saying I was going to go to law school since I was
8 or 9 years old.
Judge Cordell: So, you knew you wanted to be a lawyer when you were 8?
Professor Babcock: I wanted to be a lawyer. It was my idea. At first, it was very appealing
because my father was a lawyer, and it really seemed as though lawyers
could take care of everything. I had this idea that a lawyer is a hero from
the very beginning. And then, I always was good at arguing and people
said, you know, “You want to be a lawyer? You’d be a good lawyer.”
– 1 –
Judge Cordell:
And so I just always said that without thinking much about it. I certainly
didn’t think about how hard it would be to combine with having a family,
or how difficult to face discrimination, or anything like that.
So the whole notion of being the sole woman in the class just wasn’t a big
thing for you to think about at all?
Professor Babcock: I thought about it. I realized that I was doing something that not everyone
Judge Cordell:
would approve. On the other hand, wanting to be a lawyer made me stand
out and it was kind of fun. It was just something I always wanted to do. It
certainly wasn’t anything that I articulated, even in my own mind, in terms
of the women’s movement. I was totally unconscious of anything like
that. Sometimes it just amazes me how little thought entered my decision,
given that it was so unusual and momentous.
Well, that’s good if that’s the case. And if you had thought about it too
much, it might have not happened.
Professor Babcock: Or if I had thought that I was carrying all women on my shoulders, you
know, into the next century. But I didn’t think anything like that and I just
thought that’s what I wanted to do and that being a woman was just
another obstacle, like not being as smart as you might like to be or as
pretty or as rich or all the things that would be helpful to be.
Judge Cordell: So did you take the LSAT and all that?
Professor Babcock: Yes, I did. I took it. I only applied to one law school. Can you imagine
that? I only applied to Yale because when I was a sophomore at the
University of Pennsylvania a recruiter came from Yale. I’m not even sure
– 2 –
Judge Cordell:
who he was now, looking back on it. He was a very compelling person
when he talked about why one should go to Yale Law School. I really
liked Penn and felt very loyal to them because they had given me this huge
scholarship to go there. I thought I could just go on at Penn Law School.
Then, this guy came from Yale. That’s it. I want to go there. He made it
seem as though law would be the most exciting intellectual study. You get
a degree and you go out and change the world. That was the picture, and I
just loved the idea of Yale; maybe there was something about the
women’s movement beginning to come into my consciousness because I
was so attracted to Yale, a place where previous generations of women
had been excluded.
Were you talking to anybody along the way? Did you say, “I’m only
applying to one law school?” Did they say, you’re nuts?
Professor Babcock: No. It was just me and my ambitions. No one to tell me I couldn’t do it.
Judge Cordell:
But no one told me I could either. When I look back on it, I’m still kind
of amazed. I had this tremendous confidence and belief in myself. You
are like that too, LaDoris.
Not always. But I would not have dared apply to only one law school,
especially one like Yale.
Professor Babcock: I didn’t even know what I was doing. I remembered that my dad, who had
never graduated from any law school. He just went to George Washington
at night during the Depression. He didn’t graduate. He just took the bar.
You could do that in those days. He thought I would go to the University
– 3 –
of Maryland or maybe, ifl wanted to get ritzy, go to GW even. I just
knew that Yale was the right place for me. And I remember … I was on a
debating trip.
Judge Cordell: This is in college?
Professor Babcock: Yes, this was in college. That’s really what I did in college to prepare me
for law school. But I didn’t know it was perfect preparation. I stopped in
at Yale for an interview. They didn’t have official interviews. But you
know, I just went in.
Judge Cordell: You just showed up?
Professor Babcock: I just showed up. This is something you would do. You love it. I just
showed up in the interview because they might want to see me. I just kept
pushing and saying, “I know you don’t interview people, but I’m here. I
was in the neighborhood. I would like to talk to somebody.” I don’t know
if that’s why I got in or not, but I did get in.
Judge Cordell: So you get a letter saying you’ve been admitted?
Professor Babcock: Right.
Judge Cordell: What did you do? You get this letter. Did you call home, freak out, what
did you do?
Professor Babcock: Honestly, looking back on it, it doesn’t stand out in my mind because I
really expected it. I can’t even imagine I felt that way, but I did. So I
wasn’t surprised. I even got some kind of money to go. I was putting
together a little scholarship. This is what I got … a Woodrow Wilson.
Judge Cordell: Really?
– 4 –
Professor Babcock: I was one of three or four people who have ever gotten a Woodrow Wilson
to go to law school because I said, “I want to go to law school and I want
to practice, but I think that eventually I’ll go into teaching and teaching
history.” But I got this idea of applying to this Woodrow Wilson to go to
law school from my debate partner who said “look, its a fabulous
scholarship.” And it paid for everything I think.
Judge Cordell: Who was this debate partner?
Professor Babcock: Eddy Cohen. Anyway, he was my first real love in life also. But he said
look at this, here’s a scholarship and they don’t say that you can’t go to
law school on it, if you really emphasize that you want to teach. And I got
it. I got a Woodrow Wilson. I hadn’t thought about that in years. So it
was really looking good; life was looking good to me when I went in 1960
to law school at Yale.
I used to tell the story of going to Yale to the first year students for
many years. I told them this story and there are generations of students
who remember it and love it. And then Kathleen Sullivan, the new Dean,
didn’t want this message delivered so she cancelled my speech for the last
five years or so. But here was the speech that I used to give: I’d tell them
about going to Yale and that my father took me up there. I’d been there
once before to do this interview, but he had never seen it and he was from
this little town in Arkansas.
Judge Cordell: So you drove up?
Professor Babcock: We drove up.
– 5 –
Judge Cordell: What kind of car?
Professor Babcock: That’s so funny. That’s a funny question. Not a fancy car. I don’t know
what it was, but the year was 1960. And my dad, who’d gone to this little
college on the White River in the Ozarks in Arkansas, called Arkansas
College, and then he attended George Washington at night, and so then
seeing Yale is so impressive. And it’s got big spires and the law school
itself looks like a medieval cathedral. And he just looked around and he
said, “Barbara, you never have to do another thing in your life. You’ve
made it.”
Judge Cordell: To which you responded?
Professor Babcock: I thought he might be right. Because that’s the way they made you feel.
Judge Cordell:
That you’d been chosen to come to Yale. That no matter what else you
did in life you’d have this thing, this Yale degree, and it would mean so
much to you. And that actually has been proven to be true … And as I
say, the modem Dean didn’t want that message delivered to the Stanford
students, because she wanted them to keep working, achieve further. I
wasn’t really saying the opposite of that, but you can see how someone
might think it. Anyway, it started out well, and the fact is that I just loved
law school right from the beginning.
Why? Why?
Professor Babcock: Everything … I just felt like, I’m home. I understood everything.
Judge Cordell: But I’m saying. You were just … very few women … How many women
in your class?
-6-
Professor Babcock: 13 women in that class out of say, 175.
Judge Cordell: How did you feel at home?
Professor Babcock: That was more than any woman who have ever been in any class at Yale.
More. Most classes had six or seven women. For many many years.
After us, the class after us was six and the class before us was six.
Judge Cordell: 1960 is a big year in that sense.
Professor Babcock: Well, it was … some people said it was because some of the women had
men’s names so that the admissions office didn’t know. There was a
woman named D. Battle Rankin. D — stood for Dorothy.
Judge Cordell: Do you remember the other twelve?
Professor Babcock: Well, some of them. A lot of them. Let’s see how many of them I can
name. I remember Eleanor Norton, Holmes then. She started with that
class, but she stayed and took a master’s degree, so she- graduated in ’64.
But she counts in the 13. And there’s Marion Wright Edelman who is sort
of famous. And there was a woman Carolyn B. King who became a fifth
circuit judge. And there was a woman Rhoda Lakritz who became a law
librarian. And Dorothy Rankin who practiced in Delaware and started a
newspaper I think. And there’s another woman I can see her face and she
became a law librarian also, Gail Beckman. And Sylvia Orelind who
became a partner in a big Chicago firm and married the public defender in
Chicago. Let’s see. That’s 7. Oh, Clotilde Benitez, who was a 19 year
old Puerto Rican woman who came to law school straight from being
home schooled. Ellen Grandinetti, who practices in Connecticut. And
– 7 –
how can I forget? Marguerite Schimpff (now Webster), who was in my
high school class! That was really unusual; only half our graduating class
( of 500) went to college in those days, and of those, 80 or 90 percent went
to the University of Maryland, right down the road. So for the two ofus to
end up at Yale was quite something. We were good friends, and in the
same clique in High School. So that’s 11 of 13-and with more time, I’m
sure I could get the others.
Judge Cordell: So, what did you wear to class?
Professor Babcock: Everybody dressed up. Well, dressed up by today’s standards. When I
came back to teaching I was just shocked that students wear rags,
especially out here. They just dress in total rags. And now today, the
fashion is to look like ladies of the night.
Judge Cordell: What did you wear? What did you wear?
Professor Babcock: We wore like … This was before pantyhose (B.P.)
Judge Cordell: So you had Garter belts …
Professor Babcock: Garter belts or girdles and stockings and skirts. I mean, people didn’t
wear pants. We wore skirts, and coats …
Judge Cordell: Hats?
Professor Babcock: Well we might have in the cold. Sometimes it was really cold.
Judge Cordell: What were your male counterparts wearing?
Professor Babcock: And they wore sports jackets, and
Judge Cordell: Ties?
– 8 –
Professor Babcock: Chinos … sometimes they wore ties, often they wore ties. And sometimes
they even wore suits. But they always wore jackets. And shirts with
collars, I mean, people did not wear t-shirts and it’s amazing to think
about.
Judge Cordell: And no female teachers now, so your professors were all male.
Professor Babcock: All male.
Judge Cordell: Were they all in ties?
Professor Babcock: Absolutely 100% they were always in ties. The male teachers were
always in ties and jackets.
Judge Cordell: Did you sit in the front, back, middle? Where did you sit?
Professor Babcock: I’ll have to send you this thing you I wrote which is this tribute to John
Ely. See, he and I sat next to each other. Which makes me think it might
have been alphabetical. They might have had assigned seats, because
Babcock and Ely could easily be next to each other in a small section. But
I don’t know whether they had seating or not, but I do remember being in
approximately the same place in those classes in my first year.·
Judge Cordell: Which was?
Professor Babcock: Which was near the front, not in the very front but like in the second row.
• Tribute to John Hart Ely
But I also can really remember, and I just wonder if my students feel this
way. I really just remember vividly these teachers and these classrooms,
especially Grant Gilmore, for instance who was a fantastic contracts
teacher. One day about halfway into the semester he called on me, and I
– 9 –
Judge Cordell:
never raised my hand, never. I would never volunteer, never once in three
years of law school even in small classes even though I was always
exquisitely prepared.
I always went to class and I always prepared. I was really like one
of those students who read the extra stuff, you know. There will be a little
note that says, see this article. And I would go look up the article, that’s
the kind of student I was. Because I loved it, I just thought this is it, I
understand this, I’m really good at this, and this is it. And I had to be
careful; I could enjoy anything and there wasn’t enough time to take all
the classes. So I didn’t want to take anti-trust, or corporations, trusts and
estates, things like that. Future interests. Those were all things I didn’t
take which turned out to be on the bar.
I remember you talking about…. You said you didn’t know if your
students or the students feel the way you felt.
Professor Babcock: About remembering the details. But I remember I can go back now to this
moment in this classroom at Yale and see Grant Gilmore, who was this
brilliant man, his brilliance just shown out; though he looked kind of like a
frog. There was nothing handsome about him but what I felt toward him
was something like lust; I just admired him so deeply. And so he called
on me and it was one of those times I had read a few extra articles and I
was really a recipient of the true Socratic method because just by his
questions he drew out all this knowledge that I had and I couldn’t even
believe it was me saying these things and I just …
– 10 –
Judge Cordell: So you and he were going back and forth?
Professor Babcock: Back and forth, for the entire hour.
Judge Cordell: Oh my God.
Professor Babcock: The entire hour. And these things just came you know and I just
remembered and put them together-not you understand in the way students
do sometimes, preparing a little speech ahead of time.
Judge Cordell: That’s not what we’re talking about …
Professor Babcock: … but that’s not what it was. It was really because of the way he asked
the question I was able to tap into things that I didn’t even know that I
knew. It was just wonderful and afterwards people gathered around me
like a rock star and said you’re going to be first in the class and this is the
most brilliant thing we’ve ever heard. So I rushed down to the payphone
and called my Dad. I said, “Dad, Grant Gilmore just called on me for the
whole class.” And he said, “that’s nice, honey”. And I said, “but Dad,
you don’t understand, this means I’ve made it, I’m going to be great”.
And he said, “that’s good, honey”. And I knew then that nobody would
ever know, that nobody outside of the little Yale world would ever
understand what that was.
Judge Cordell: And that was your first year?
Professor Babcock: That was my first year, yeah.
Judge Cordell: What about Grant Gilmore? Did you have any interaction with him later
in life?
– 11 –
Professor Babcock: Well, that’s the thing. He went away to visit at Chicago and ultimately
moved there from Yale for some years I think. So I never took another
course with him but I always felt this connection with him. And then
when I was graduating, I didn’t get to be an officer of the law review
which was sex discrimination. (I hardly ever charge this as you will see.
because I really have been mostly a beneficiary of affirmative action and
have suffered very little from discrimination.)
Judge Cordell: So Grant Gilmore?
Professor Babcock: When I was graduating I was up for a prize for the best student article in
the law review which I had written-I had to write this article because I
didn’t get to be an officer of the law review and in those days, in those
days, this is how law review worked. You only got on if you had the
grades, you were only asked to join if you were like one of the top 25
people in the class and then to stay on, you had to publish a note and then
if you got to be an officer that’s all you had to publish, but if you didn’t
get to be an officer you also had to publish a longer piece called a
comment to have your name on the masthead of the second volume. So I
didn’t get to be an officer.
And it’s one of the few times in my life that I charge because it
was sex discrimination and I would have gotten to be an officer and
should have gotten to be an officer because I had written this really good
note. But they had a woman who had been an officer a couple of years
previous and she hadn’t worked out so they weren’t ready to try another
– 12 –
woman. I just remember being very disappointed at not being an officer. I
felt a little guilty because I never was really good on the blue booking but
I had written a really good note. I was there for the blue booking. I just
wasn’t very good at it but even ifl had been, what I realize now, maybe I
didn’t realize completely then was that even if I had been I wouldn’t have
gotten to be an officer. So I had to write this other article. And I got
started on this article which turned out to be about freedom to modify
contract remedies and it was about whether parties can bargain outside of
the law which turned out later to be a really hot topic but at the time I was
thinking about it there wasn’t anything really written about it and I read all
these cases and wrote this thing. I’m not sure I could even bring myself to
read it again. But still, it was quite something. ·Grant Gilmore wrote a
letter saying it was a brilliant article and it deserved the prize; I heard that.
John Ely, who was my friend, who didn’t think that violated friendship
bounds was up for the prize too and he went around (he was an officer of
the law review) and lobbied the professors for his article – that it was on a
much more serious topic, constitutional law, and was much more
important than mine. So he got the prize. It was a very odd thing with
professors those days. They were as remote as Gods. I never went into a
professor’s office; I was never in a professor’s office the entire time. And
the only people that were – were people like officers of the law review
who would go talk to them about articles and things.
• Two student pieces, Note on Effect ofNolo Contendere pleas, and Comment on Freedom to modify contract
remedies.
– 13 –
Judge Cordell: So you didn’t lobby anybody?
Professor Babcock: I certainly didn’t. It never occurred to me to lobby anybody. But I
wouldn’t have even known where an office was. So many years later, see,
picture me teaching. And my office is like grand central station and
people come in and sit down and they say, “Did you miss me, I’ve been
gone all summer.”
Judge Cordell: Imagine saying that to a Yale professor.
Professor Babcock: Right. It may still be true today, I don’t know. Nevertheless, when I look
back on law school, even though we were the victims of the most overt
sex discrimination you could imagine, we really didn’t know it on some
level. Things like women couldn’t live in the … they had these nice suites
in the law school that were connected with the law school and you didn’t
even have to go outside in the rain or snow and they had fireplaces, but
women couldn’t stay there. And there were no women in the
undergraduate level.
Judge Cordell: So where did you live?
Professor Babcock: Well, my first year I lived in this dreadful place for graduate women; they
only had a dorm for graduate women.
Judge Cordell: Fireplace?
Professor Babcock: No fireplace; it was awful. It was like a freshmen dorm at a second-rate
school; it was called Helen Hadley Hall. And it was two, three blocks
from the law school. But then Eleanor Holmes and Judy Stein who was in
the history department and I got this place. It was an apartment that one of
– 14 –
the guys in the law school, who was Eleanor’s friend,, had married a girl in
the town of New Haven and her father owned these apartments, sort of a
slum in a dangerous part of town. It was about eight or nine blocks from
the law school and we got this apartment for thirty dollars each, ninety
dollars a month. Eleanor and I shared one room, and Judy had her own
room, a bathroom, a living room, and a little kitchen. It was right on the
street. Neil Herring and his wife lived underneath us, and I think maybe
they had a baby. He was our fellow law student and we sometime rode on
his scooter with him to the law school but we often walked.
, Judge Cordell: Was it a good little walk?
Professor Babcock: It was a little walk, especially if you wear heels. I remember one time
Eleanor and I came home. We were coming home from the law school.
There was this guy lying on the street, just lying there. He looked like he
was perspmng.
Judge Cordell: Was this summertime? Winter?
Professor Babcock: This was wintertime; cold, cold winter and he’s lying there.
Judge Cordell: Was this a white guy?
Professor Babcock: It was a white guy. And so we rushed.to our apartment and called 911 and
they came and then he started waking up and he says, “I’m Irish, I’m
Irish.” He was just drunk and then the ambulance people got there and
they were furious that we had called an ambulance for a drunk person and
they were trying to charge us seventy-five dollars for the ambulance. I
just said, “Excuse me; I’m so sorry, what have I done?” And I was just
– 15 –
dying, but Eleanor says, “It’s your job to come here … Why are you trying
to cheat us? Get away from me motherfucker … ”
Judge Cordell: I love it. .. Were you appalled?
Professor Babcock: No, I was sort of amazed. And sort of proud and relieved, because I
would have been shelling out seventy-five dollars, which I didn’t have.
That was the thing; we lived in this … we had fun. I remember my
boyfriend in law school said, “It’s like a little fairy story with you and
Eleanor … ”
Judge Cordell: What do you mean?
Professor Babcock: We would have professors come to dinner, handsome ones, of course.
Judge Cordell: Wait a minute … Who would invite?
Professor Babcock: We would, or Eleanor would. And we would … people would … John Ely
was Judy Stein’s boyfriend, and Eleanor always had somebody, and then
the whole civil rights movement came to our apartment.
Judge Cordell: How so?
Professor Babcock: Well, she was involved in CORE, and then also she had been down south
so Bob Moses came and sometimes our whole apartment would be full of
peopl~ eating chicken and talking about strategy. And it really was so
exciting; it really was exciting.
Judge Cordell: Why you and Eleanor? How did that … I mean, there are thirteen women
in the class, so how… You didn’t know her before that, did you?
Professor Babcock: No, we didn’t, but we both were born in the same hospital in Washington,
D.C. in the old Garfield hospital. She once introduced me at a thing where
– 16 –
I got a prize and she said, “We grew up at the same time.” (She’s a year
· older than I am). We would never have met, because Washington was a
totally segregated city, and so I would go down to shop at Woodies
(Woodward and Lothrop Department Store) and there were no black
people shopping at Woodies. At the big movie theatres there were no
black people; it was like a white enclave there. Every Sunday my mother
would take us to the art gallery, the National Gallery of Art, and you
would hardly see … you would think you were in a white city there. Even
though there was no one keeping people out, they didn’t come. And
there’s this whole black city, with great stores and beautiful houses and
the whole thing.*
Judge Cordell: Separate but equal.
Professor Babcock: Yeah. It was. And then Dunbar High School, where Eleanor graduated,
was better than Northwestern High School, the high school in Maryland
where I graduated. Much better school. Much higher percentage of kids
going to college and going to places other than University of Maryland.
Judge Cordell: So how did you two [?]?
Professor Babcock: Well, we were drawn together from the beginning and we liked each other.
Judge Cordell: Was she the only black woman?
Professor Babcock: Marion Wright Edelman. And there was another woman behind us, Anita
Martin. I can see her right now. Her father was the Chair of the
Democratic Party, was a neat man. So there were some other black
* SALT newsletter with accounts of speeches
– 17 –
women, but there weren’t many at all. She was a big figure always,
Eleanor.
Judge Cordell: She was a presence?
Professor Babcock: She really was. Definitely.
Judge Cordell: Was she confident, like you?
Professor Babcock: Yeah, she really was. We both were, in the same way. I don’t know
where she got it either, but she had a lot of reinforcement. She really did
have a sense that she was going be somebody important and that
everything she did was important. It’s funny, because she is not easy to
get along with, but people don’t mind because she is not really selfish. She
just identifies her well-being with the well-being of the movement, in a
real way. But we would have people over, and Judy and I used to say,
“We’re the last white slaves.” Because we have all these people over and
feed them until two or three in the morning and Judy and I are washing the
dishes in the bathtub because there’s too many dishes to wash in the sink,
and Eleanor had gone to sleep. But she wouldn’t even remember that; ifl
told her that story she would laugh. No one can ever say, though, that
Eleanor is trying to get money for herself or position for herself; she’s
always trying to do good in a larger sense
Judge Cordell: Did you study by yourself?
Professor Babcock: I really did study a lot.
Judge Cordell: By yourself?
– 18 –
Professor Babcock: Yes, in the library. I must have worked some at home, but I don’t think I
did a lot. I did most of my work at school. Go to school at eight in the
morning and come home at like seven, seven-thirty at night. Recently,
they fixed Yale up, the building, but they’ve kept the library like it was,
while making everything more comfortable and modem. I can still
identify the very carrel where I studied, the very place, and it just brings
back these real memories because even though I just worked so hard … I
was just like a madwoman working. Studying so hard, but loving it, just
loving it, and loving being good at it. All caught up in it.
I remember that when I was graduating, that I finished like tenth in
the class, and I was applying for clerkships. You always think you’re
going to be the one that the discrimination won’t apply to you. Very few
federal judges had ever hired a women law clerk. But somehow I just
thought they’d want me. I never predicted or saw discrimination coming,
and maybe because I wasn’t afraid and always expected the best, that
things worked out for me a lot of times. But I remember Alan Dershowitz
who had been the editor in chief of the law review my second year in law
school and he had been the editor of this piece that I had written, my first
thing that I wrote for the law review, which was about the use of nolo
pleas, whether nolo contendere pleas could be considered as guilty pleas
for subsequent treble damages suits in anti-trust cases. It caused a little stir
at the time because these white collar defendants had pleaded nolo–in
some vast corporate conspiracy, and the question was the subsequent
– 19 –
effect of the pleas. Anyway Alan had been the editor of the piece, and he
was a big figure in law school, as you can imagine, he was so brilliant, and
so contentious. In every class he was in, he dominated. He had all this to
say, and he was so smart. He was clerking for Judge Bazelon. He called
me up and said, “You’ve applied to Judge Bazelon and all these other
judges on the Court of Appeals for the District of Columbia.” There was
this amazing court of liberals; there was Judge Bazelon, Judge Fahy,
Judge McGowan, Judge Wright, Spotswood Robinson. All those were
judges that you would be happy to clerk for. And right up the street was
the Warran Court. It was amazing. That’s the only court I wanted to clerk
for, because I wanted to go back and practice in D.C.; never thought of
doing anything else, I don’t know why. So he called me. He said, “I had
interviews with all of them, all the liberal judges. Alan said they will all
give you interviews, but none of them will hire you. They’re just not
ready yet, they’re not able to. But there’s this great judge, Henry Edgerton,
who is a senior judge now, he’s way ahead of his time. He’s just a great
man, and he had a black law clerk and a woman law clerk and I know he
would be interested in you. I applied to Judge Edgerton and his interview
was the first one that I had that day, and all the rest of them were set up.
We talked for about forty-five minutes and then he said, “Barbara
Babcock, I would like for you to clerk for me if you would like to do it.”
And I just thought- it just flashed through my mind that I ought to give the
other ones a chance-that it would be better to clerk for someone who was
– 20 –
young, who could help me later in my career. But without missing a beat, I
just said, “I’d like to do it.”
Judge Cordell: You said yes?
Professor Babcock: Yes. I said yes on the spot, see. And it just set us off on this incredible
path, and now students say, well, let me take your offer and shop it with
two other judges. So, I cancelled my other interviews and clerked for him.
Now, Judge Bazelon, for whom I wanted to clerk because it was the hot
clerkship for someone who was interested in criminal law, always had one
law clerk that he did not get along with. The year that I was clerking, the
bad clerk was a guy who finished first in his class at Harvard Law School
and the judge just decided he was worthless and he couldn’t do anything.
It turned out that the judge later in life got Alzheimer’s or something like
it and I think he was beginning to have the first effects of that in which he
couldn’t remember things and so he wanted his law cler~ to have a level of
intuition and not to press him-like where did you write that and what did
you want to say. I just happened to be on the same line with him or I had
the sense enough to get out of there and figure out what he was talking
about rather than press him and get him upset because he couldn’t
remember. But it turned out that Judge Bazelon asked Judge Edgerton if
he could loan me to him to do criminal stuff that the Harvard man could
not understand. So people think I clerked for Judge Bazelon because I
worked on a number of his opinions and he was a great mentor of mine
later.
– 21 –
Judge Cordell: It worked.
Professor Babcock: And then Judge Edgerton, because he was a senior judge, he had a choice
of the kind of cases he sat on. So he knew I was interested in criminal, so
he just did criminal cases, those were the only ones he took. And those
were the only ones I did for Judge Bazelon. So I got this real wonderful
education in criminal stuff in the District.
Judge Cordell: I want to go back to just two things. One is just to wrap up law school.
Did you go to your graduation?
Professor Babcock: I didn’t go to my graduation.
Judge Cordell: You didn’t? So why not?
Professor Babcock: It’s actually kind of sad. The Maryland bar was coming up very quickly
and I only had a few days to study for it. There wasn’t a multi-state, so
Judge Cordell:
the bars … most people who took the Maryland bar had gone to school at
Maryland so they started the bar review course in January and then they
had this short course at the end of May and the bar was given in the
middle of June. I was caught up studying and my father was sick, so the
family couldn’t come. Then I got really sick with this polynodyl cyst.
You know what that is? It’s this thing at the end of your spine, and you
might never know you have it unless it gets infected in which case you
feel just worn out and ill. So I didn’t make it back to my graduation, which
I’ve always been sorry about.
Why criminal law? Why criminal defense?
– 22 –
Professor Babcock: That’s another thing. Why being a lawyer? I don’t know where it started.
But it’s partly the sense of the underdog.
Judge Cordell: · But did it develop when you were in law school?
Professor Babcock: No, I came to law school with that idea. Which not many people had that
idea, but it was just something I always imagined … sort of Clarence
Darrow … sort of taking care of … the great jury speech rescuing the
innocent person.
Judge Cordell: That was your fantasy.
Professor Babcock: Or the deserving person. I always had that in mind, I don’t know. I don’t
know where I got it.
Judge Cordell: Your dad didn’t do criminal. .. ?
Professor Babcock: Well, he did. He did everything. And he always told these stories about
the lawyers rescuing the situation and saving the people.
Judge Cordell: So being a prosecutor never. .. ?
Professor Babcock: No, no. It was always being a criminal defense lawyer. It was what I had
in mind.
Judge Cordell: You and I are so much alike on that. That’s always been … I know where
it came from … living a life where I saw the law as first oppressing those
who were down and out be they women or poor people. It was used to do
that, and then seeing the law used to free us. And I always just had this
sense that there was always this big oppressor, the state or whatever, and
people were needed to see that people were not put down all the time. So
I know where I got that. I could never prosecute anybody. Never.
– 23 –
Judge Cordell: So you were back in D.C., and this was where you wanted to be.
Professor Babcock: This was where I wanted to be, and it was fun. It was fun to be on the
court-at the federal courthouse in 1963. August of ’63 was the March on
Washington.
Judge Cordell: Where were you then?
Professor Babcock: I was in the march. The judge even said he was a little worried-it might
be dangerous to march. Actually, it was like a Sunday-school picnic.
Judge Cordell: My mother and sister were there, I know.
Professor Babcock: Where were you?
Judge Cordell: I was at home watching TV. They wouldn’t allow me to go.
Professor Babcock: Because you were the baby.
Judge Cordell: No, I was not the baby. I was in the middle, but … the two of them, the
older ones went. So did you announce to your judge, “I’m going on this
march.”
Professor Babcock: I said, “I think I’m going to go on this march.” And he said he was going
to ask around and make sure it was all right, that it would be safe.
Judge Cordell: Who was he going to ask?
Professor Babcock: Oh, like the marshals and his contacts in the police department; things like
that. It really was thrilling.
Judge Cordell: Did you go by yourself?
– 24 –
Professor Babcock: No, heavens. I never did anything by myself. Judy came — Judy Stein,
and maybe her brother, and Eleanor. But Eleanor was marching with
some of the leaders.
Judge Cordell: You mean from the pulpit up there?
Professor Babcock: She was in the front of the march. Who else was I with? My friend Patsy
Tatspaugh, my best friend since second grade who lived near me in
Hyattsville, and somehow I think Addie Bowman, my first husband, might
have been there, but I think that was a March on the Pentagon.
Judge Cordell: We’ll get to that.
Professor Babcock: But ’63. I think it was Judy. Might have been Addie. I’ve got some
pictures.
Judge Cordell: Were you all dressed up?
Professor Babcock: I had on a red and white striped skirt, I remember. It wasn’t hot, it was a
great day.
Judge Cordell: Was it a hot day there?
Professor Babcock: It wasn’t so hot, for the natives.
Judge Cordell: So you had on a red and white striped skirt?
Professor Babcock: And white blouse, I didn’t have a sign or anything. We marched right
down Constitution A venue; it was a wonderful feeling. It was great. It
really was; the pictures are almost all of King and the Lincoln Memorial,
after we got there. But the march itself was very wonderful and exciting
and there was no feeling of danger, like the marches in the South.
End of Tape One
– 25 –
Judge Cordell: This is LaDoris Hazzard Cordell. It is January 25, 2006. I am at the home
of Barbara Babcock and we are continuing with Barbara’s oral history.
This is our second session.
Professor Babcock: I want to jump a little bit out of order because last night I taught the first
session of my course in women’s legal history and the first assignment is
to: “Write a page or two to present to the class about your decision to
study law and how it relates to your subject, your choice of this class, and
your future plans. Think of this as an introduction of yourself, giving us
some idea of how you will approach your subject.” This gets the students
thinking biographically. The idea is to think about what a biographer
would say about you and why you chose the subject that you have chosen.
Judge Cordell: Now, this class is at Stanford Law School?
Professor Babcock: At Stanford Law School.
Judge Cordell: And what level students are we talking about? What year?
Professor Babcock: Second- and- third year students. They each take a chapter in the life of a
pioneer woman lawyer and then we put all the chapters up on this website
and they can build on previous chapters and it’s a huge collaborative effort
to reclaim all these early woman lawyers.
Judge Cordell: The name of the course is?
Professor Babcock: Women’s Legal History.*
Judge Cordell: And how many students in this class?
Professor Babcock: Well, it’s a seminar, so eighteen.
* Url’s for Women’s Legal History website-description taken from website
– I –
Judge Cordell: Eighteen! Are they mostly women?
Professor Babcock: It is mostly women. For the first few years, I had no straight white men in
the course, but now I’ve had a few brave souls not afraid to have such a
course on their resume-Women’s Legal History.
Judge Cordell: Interesting. I thought you were retired?
Professor Babcock: I’m doing this on the side. You can still teach. I could teach civil
procedure if I wanted to, but I’ve retired from teaching big classes. But
I’ve been a little worried being retired-it’s been two years now-because
I don’t teach first year students anymore and so I don’t get people who
want to take future classes from me and reputation is fragile, especially in
the legal world. I am really amazed when students have never heard of
Edward Bennett Williams, never heard of him! He was a really famous
criminal defense lawyer. They never heard of Tony Amsterdam, never
heard of him. Legal fame is so fleeting, and that’s one reason I’m really
for this oral history project.
Judge Cordell: Why is it so important?
Professor Babcock: I’ve really got to get all these lives written down. And that’s why it’s fun
to get them thinking of their own biographies.
Judge Cordell: Why?
Professor Babcock: Because essentially all biography is really autobiography.
Judge Cordell: So you mean we project?
Professor Babcock: Absolutely. You not only project, but you just see things. Not only are
you projecting your feelings but you see things through this lens of your
– 2 –
own experience, and then there’s constantly new explanations for all
human actions, all these possible interpretations. This came up last
night… You don’t even know yourself-how it might be interpreted, or
what it really meant.
Judge Cordell: So tell us what happened.
Professor Babcock: So I modeled for the students how to do this, which is to sort of relate
yourself and your decision to study law to the subject that you’ve chosen.
So this is a talk that I gave, and I was just thinking that I wouldn’t have
thought of this exercise-which just worked out splendidly (the students
said amazing things and I’ll tell you about it afterwards, but I wouldn’t
have thought of doing it)-if I hadn’t been trying to think about the
meaning of my life for this oral history and how to put it together. I said
that the purpose here is to introduce myself, my subject, and the course.
Here is what I said: In 1960, I went to Yale Law School with the
intention to do criminal defense work, and that was why I went to law
school. And that intention was even more unusual than being a woman;
that was just not something that anybody came to Yale Law School to do
in 1960. Then in 1963, just as I graduated, the Supreme Court decided
Gideon,* and, in D.C., a little Legal Aid Agency started to try and fulfill
the promise of Gideon and this young guy from Harvard named Gary
Bellow came to D.C. and was virtually in charge of it. The same year the
Prettyman Fellows at Georgetown were established, also to fulfill the
* Gideon v. Wainwright, 372 U.S. 335 (1963).
– 3 –
promise of Gideon and actually give people adequate defenseeverybody.
When I was finished clerking, I wanted to work for this outfit, this
little Legal Aid Agency-and it was just six lawyers-but they didn’t
have an opening. So I went to work for Edward Bennett Williams who
was this very famous criminal defense lawyer.
But after several years with Williams representing rich people and
seeing what you could really do if you had the resources in terms of
defending people-there was an opening at Legal Aid and I went there
and after some time I became the head of it; and we got a new statute
passed and it became the Public Defender Service and it grew to be a
substantial agency and I was the first head of it, the Public Defender
Service, at the age of thirty.
Everything that I ever dreamed of about being a criminal defense
lawyer came true for me. I loved talking to juries; I loved being the
spiritual leader of the place; I loved the camaraderie of the fellow
defenders; I liked how simple and uncomplicated the role of the defense
lawyer is. The ethics courses have it all wrong. They make it sound like
the defense lawyer is under this constant ethical struggle. The defense
lawyer has it easy. It’s the prosecutor whose trying to represent the people
(including the defendant) and do the fair thing, or he should be. The
prosecutor has the tough job. The defense lawyer, with everybody against
him, and being the only person representing this accused person has a
– 4 –
clear duty. Also, you see the accused in a way no one else knows him.
Add the horrendous sentencing practices … and anything you do for the
accused has to be to the good. It’s the simplicity of the role I liked, but
everything about it I really loved and didn’t ever have any doubts about
my wasting my time. I never came near to burning out.
During the last case I tried, which was a little second-degree
murder case, I had as much fun as the first case I tried-maybe more.
Because I wasn’t as frightened. But there was a sudden influx of women
into law school, and this happened as an offshoot of the women’s
movement, which was born in turn from the civil rights movement. In the
late 60s and early 70s, the number of women in law school went from
three percent, which it was when I was in law school, to twenty percentjust overnight! A lot of immediate events caused it. It was the Vietnam
War-you couldn’t get a draft deferment for law school, so men were not
applying in the same numbers. And a lot of it really was the women’s
movement with women recognizing the advantage of a law degree– It’s
not like a Ph.D., where you’re constantly subjected to further judgments
and a question of whether there going to be a job at all after you get a
Ph.D .-and there’s no end to the time you can spend on it. A law degree
is not like a master’s degree, and it’s not like a degree in counseling or
something. It’s really something people respect, and it’s three years and
so that’s what women have always done-go to law school-it’s part of
the movement.
– 5 –
That’s why it just kills me when I see law students, especially
women, say they’re not feminists. You can’t be a lawyer and not be a
feminist-there’s no such thing. At least historically, there’s no one who
would have the courage to go to law school without being deep into
feminism and even though we didn’t know it yet when I was in law
school, we were deep unconscious feminists.
Anyway, there was a sudden influx of women into law school, and
what had happened is that it suddenly became apparent that although
many women had graduated from law school, there were almost no
women law professors-almost none. Many, many schools, Stanford
included, had never had a woman law professor on the tenure track. So, I
saw that this little window of affirmative action was open. They wanted,
they all wanted, to hire a woman. One woman. And I could get a job that
I wouldn’t be able to get a few years later.
Judge Cordell: So we’re talking early seventies now?
Professor Babcock: This is early seventies, right. And here I am, see, I didn’t clerk on the
Supreme Court, I wasn’t an officer at the law review, and these were
thought to be requirements for being a law professor. And I’d been a
criminal defense lawyer for nine years! And so I just saw that I had a
chance, and it really did mean giving up this job that I really loved; and I
didn’t really face it, which is the way I deal with things. I really didn’t
think what the truth was-that I would never try another case-that this
was the end.
– 6 –
Judge Cordell: But Barbara, was there one incident, something someone said to you, that
got you looking at academia? The affirmative action, everything was
going on at that time, but it wasn’t all just focused on “let’s get women
into professorships and law schools.”
Professor Babcock: Well, no, no, but there was a lot of it. The other thing that happened in
here was that the students from Georgetown asked me to teach a course
when I was running the public defender and trying cases. I am the busiest
person you’ve ever seen. I can’t even believe how hard I worked.
Judge Cordell: How many people did you supervise?
Professor Babcock: The agency … like a hundred people. I had a great deputy. But in
addition … I try cases and I’m the spiritual leader and I’m taking care of
people.
Judge Cordell: That’s unusual. The heads of public defender offices usually-they’re not
usually in court-they’re administrators-they’re rarely in court.
Professor Babcock: I know. I just think that’s a big mistake, because if you’re going to lead,
you got to be there …
Judge Cordell: In the trenches.
Professor Babcock: Be in the trenches and doing it and showing that you can do it. But you
got to get a great deputy, which I had.
Judge Cordell: Who was that?
Professor Babcock: His name was Norm Lefstein. He was in the running for job, and this is a
great story, actually. How did I get to be public defender when I was
thirty years old? Well, when I became the head it was the Legal Aid
– 7 –
Agency which was this little experimental thing, and salary for the head of
it was $16,000 and nobody could support a family, although that was a lot
more then than it is now, but it wasn’t much, still. And so the men really
couldn’t take the position. The idea was that there was definitely going to
be a statute passed, and a new agency created, and it wouldn’t be long
until you had a real salary. So I said to Norm Lefstein, who had been a
Prettyman fellow, when I got it, I said “listen, the statute doesn’t say
anything about how much you can pay the deputy.” So I paid him like
three times what I was making.*
Judge Cordell: What?
Professor Babcock: And then I didn’t feel bad about giving him all the shit work.
Judge Cordell: [laughter]
Professor Babcock: [laughter] And I tried cases, etc. The main thing was that we got the
statute written.
Judge Cordell: But your deputy-the person who reported to you?
Professor Babcock: Yes.
Judge Cordell: Made much more money than you?
Professor Babcock: Three times as much. And that’s how I got him.
Judge Cordell: And you’re okay with that.
Professor Babcock: I was okay with that, because we’re going to get this statute passed. And
also I wanted to be the head of the agency and, ifl didn’t do that, he
couldn’t come work there. Maybe ifhe could be the head of the agency,
* Barbara Allen Babcock, Tribute to Norman Lefstein: Lefstein to the Defense, 36 Indiana Law Review 13-15
(2003).
– 8 –
he would have worked there for $16,000 while they were getting the
statute passed.
Judge Cordell: Right. Okay.
Professor Babcock: I realize, looking back on it, that it was an unusual approach to take to
things. But Norm and I were really a team, which was part of it. I learned
a lot from him. I’m very good at leading people and persuading people to
do things-to do what they need to do-, and that kind of thing. But I
didn’t know a lot about how you really run things, and he just really is
good at it.
Judge Cordell: Where is he today?
Professor Babcock: Well, he was the dean at University oflndiana at Indianapolis for a long
time. But he was a law professor before that, which is one of the paths
that people take after public defending. And he’s done several of the big
Gideon studies. But he’s getting old now [laughter], like I am.
Judge Cordell: Aren’t we all.
Professor Babcock: So that was it. So I came to Stanford …
Judge Cordell: What year?
Professor Babcock: This was 1972. Then, the students from Georgetown came to me and
asked me to teach a course in Women and the Law, this was in 1970, and I
said, “what is that about?,” knowing nothing. They said, “oh, there was
this course that started at NYU and it’s a great course and it’s about
women in the law, in all areas of the law, how women are not in the
curriculum and nobody ever talks about women and women are so
– 9 –
unequal in the profession.” And so I said … “of course.” I’d been reading
The Second Sex and Betty Freidan, though I didn’t resonate to it, I really
didn’t. But I thought, “well, I’d better find out about this; this sounds like
something I ought to know about.”
Judge Cordell: Among the millions of things you were doing at the time.
Professor Babcock: Right, Right. They said they had the materials, the students, and they said,
“would you do it because you’re this respected woman and the faculty will
let you do it, but we’ll get the syllabus and materials from NYU and we’ll
help you.” So I taught this course … and then Yale asked me to come
teach it. So I flew up once a week from Washington D.C. to Yale to teach.
And, that same Spring, Mayday happened, with its big demonstrations,
and that was just a wild time for the public defender.
Judge Cordell: Talk about Mayday, just so people …
Professor Babcock: We’ll come back to Mayday. It must have been the Spring of ’71, but
maybe it was the Spring of’ 72.
I felt like I was the only woman in the country. Every day some
other school would call-“would I come?”-but Mike Waid had been
teaching at Stanford and he had come and worked for a year at the public
defender on Stanford’s dime to start the juvenile division of the Public
Defender Service. And when he left, he said, “If you ever want to come
into teaching, let me know.” And I thought at the time, “Why would I
ever want to come into teaching? I’ve got the best job in the world.”
– 10 –
But then he called and overnight Stanford asked me to come out
and lots of other schools did as well. I’d gotten divorced and that sort of
was a … put a crimp in my plans because we’d been planning to have this
law firm …
Judge Cordell: You and your ex?
Professor Babcock: My ex and other people we had meetings with. A kind of Robin-Hood
firm, where we represented poor people along with white collar clients and
gamblers and people like that, who could pay.
Judge Cordell: Could fund your practice.
Professor Babcock: So the divorce had sort of thrown me off in terms of what I was going to
do next. Although I was really happy running the public defender, but I
also had this feeling that I should move aside and let other people move
up.
Judge Cordell: Did you like teaching? I mean, you started this teaching …
Professor Babcock: I did and this was the funny part. I got deep into teaching women and the
law because I was somebody who the schools would hire to teach; I was a
figure. But I never was interested in feminism, as an area of the law … I
don’t like civil litigation, I don’t like employment law. I don’t like
constitutional law, except for the criminal side of it. It’s not what I like to
think about, or do. And so the whole time, and then you have to do this
family law, and you have to deal with all the politics.
I was led by these young women, the class that I taught at Yale
was just an amazing group. Drucilla Ramey was one of them, Barbara
– 11 –
Brown, Nancy Gertner. .. Just overnight, here was this class Women in
the Law they had demanded be taught and brought me in to teach it. This
was a whole new breed of women. They were so different from us … it
was just ten years later but they had just come in, “What is this?” “Where
are women in these courses?,” “Why aren’t there any women teaching
here?,” “Why aren’t there any women judges?,” “What’s going on here?”
They just demand, demand. They scared me to death, you know.
Judge Cordell: [laughter]
Professor Babcock: Just using all these bad words …
Judge Cordell: [laughter]
Professor Babcock: … and so it’s really, it’s just amazing to me. They were just way out ahead
of me in some ways.
Judge Cordell: Out of control.
Professor Babcock: Right. So 1 was learning from them as much as they learned from me.
That made me see myself as extremely desirable. I was the Public
Defender in Washington, D.C., I graduated in the top of my class at Yale,
and I was teaching a course in Women and the Law that would keep the
women students off the administration’s back … they’d have a course. So
you can imagine how desirable I was.
So anyway, I came to Stanford (going back to my speech last
night) and naturally I assumed that I would teach criminal procedure,
which is, after all, all I knew. [laughter] But, John Kaplan was a popular
professor in those days, and he said to me, “You can teach it, but nobody
– 12 –
will take it, because Tony Amsterdam was there and they all want to take
him.” And Kaplan had actually tried to teach it himself and nobody would
take his course, and it had been a big humiliation. I said to the students
last night … how many of you have heard of Tony Amsterdam-not one
single solitary person.
Judge Cordell: Amazing.
Professor Babcock: And these were second, third-year students. It is just so sad. So, I picked
civil procedure for the reason that it was a first semester course. I wanted
to get the students right at the beginning and talk to them … teach them
about how to be a lawyer, and the ethical side of it. I imprint them and
they get to be my people …
Judge Cordell: But civil procedure is just so not what you were doing.
Professor Babcock: I know. [laughter] And what’s really funny …
Judge Cordell: It must have been terrifying. I mean, you’re at Stanford Law School. ..
Professor Babcock: Oh my god …
Judge Cordell: And you’re the only woman and now you’re teaching something …
Professor Babcock: .. .I know nothing about. One time I took a deposition when I working for
Williams and we represented Georgetown in some other capacity and I
went there, I went to the deposition. But the night before I had ice-skated
for the first and only …
Judge Cordell: [laughter]
Professor Babcock: … time that I ever ice-skated. I had broken my elbow, but I didn’t know
it.
– 13 –
Judge Cordell: Oh my goodness.
Professor Babcock: I had just this increasing pain, and I went to take … to be, not to take the
deposition, but to be …
Judge Cordell: Be with the client, when the …
Professor Babcock: Or not even the client, just a witness. To be there when a witness is …
And so right there in the middle of the deposition I just said, “I’m going to
faint, it’s my right elbow. And then I just fainted dead away.” And I
wake up and my elbow is broken and my arm in a big cast.
Professor Babcock: And that was my only civil …
Judge Cordell: [laughter]
Professor Babcock: … experience! Passing out in the middle of a deposition.
Judge Cordell: [laughter] … how did you do at teaching?
Professor Babcock: God knows …. I think it was.pretty bad. And there was nobody to answer a
stupid question. I knew nothing about academia and its peculiar customs,
and at Stanford I was just by myself. I didn’t know anybody – Mike
Wald, that’s the only person I knew. Nobody told me anything about the
job description or anything like that, so I really was on my own, and didn’t
know what was expected or what I was supposed to do.
Judge Cordell: Sounds like a nightmare.
Professor Babcock: Stephanie Wildman, one of the students,* used to say to me, “I just think
of you in there, at those meetings with all those white men, how awful it
• Stephanie Wildman, Stanford, Professor of Law, Santa Clara University
– 14 –
must be.” [laughter] Well, I just looked at her because I thought, well,
I’ve never known anything else … It’s all I ever known …
Judge Cordell: This is your life.
Professor Babcock: This is my life. I would go to Jack Freidenthal whose book I was using
for help. I thought that you had to use your colleague’s book; if your
colleague had a book, then you should use it in your course.
Judge Cordell: So you just thought that.
Professor Babcock: I just thought that.
Judge Cordell: Who told you that?
Professor Babcock: I just thought that I would be polite. Nobody told me that. So I used
Freidenthal’ s book, which is the most impossible book for a brand new
teacher. After the cases there’s a series of what I call Delphic questions
without real answers.
Judge Cordell: I remember those.
Professor Babcock: And it will say like … “see twenty-five federal cases.” You’re supposed to
go look up twenty-five federal cases? And I did go look them up, and it
doesn’t tell you anything. But I would just stick my head .into Jack
Freidenthal’ s office to ask him something really simple like, “How many
days do you have to reply?” But he couldn’t believe I was asking him
something so stupid so he would give me some really long complicated
answer, and it was just … it really was nightmarish in some ways except
that one of the things I did was start working on the civil procedure
book …
– 15 –
Judge Cordell: You wrote your own book. [laughter]
Professor Babcock: Yeah. I joined with Paul Carrington, who was then at Michigan, and had a
very interesting, but also idiosyncratic book. He asked me to come on to
make it more teachable. And it really changed everything, in a way. To
have something that I really understood, why material was in there, and
the whole business. But I was saying to the students last night, the
interesting thing about this is that a biographer might say that my coming
into academia- I come to Stanford, I leave Washington, where I’m really
known and known as kind of a wild-eyed liberal. ..
Judge Cordell: You are. Sure.
Professor Babcock: … and I go into academia in California. I don’t teach the criminal stuff
where I have all this passion and knowledge and I can’t teach it without
saying very far out things. And so instead I teach civil procedure, at the
end of which I publish a book and become an Assistant Attorney General
for the Civil Division! [laughter] So what is going on here? And that’s
the way I look at Clara Foltz’s life and I think anyone looking at it will
say, “Oh, this is what she was up to.” These things fit together and were
purposeful.
In retrospect, it all makes sense, you see, because I did have this
ambition to be the first woman on the Supreme Court. And I couldn’t
have done it if I had taught criminal procedure and had written on criminal
procedure. Then I came back after being Assistant Attorney General in
– 16 –
1979, and I started to teach criminal procedure for the first time because
Tony Amsterdam had left.
Judge Cordell: Right.
Professor Babcock: And then I wrote an article about ineffective assistance of counsel I had
studied the law of every jurisdiction and the states, the leading state cases,
and the Supreme Court had not decided a case on ineffective assistance of
counsel for twenty-five years.* I wrote this article and explained
ineffective assistance of counsel and where it fit into the doctrine, and
what the burden of proof should be, and on and on. And then the Supreme
Court decided Washington v. Strickland.* Not only did it decide the
opposite of everything I said, read every case differently than what it
really means, but it didn’t cite me. Months and months of this intense
kind of work, and my whole life dropped into this black hole.
So I had this existential crisis and, in the middle of it, Clara Foltz
comes to me. I learn that a woman had been founder of the public
defender and I said, “that’s what I’ll write about.” I’ll write about the
public defender and the institution of the public defender and that’s how I
embarked on it. No professional biographer would have done this (this is
what I told my students last night), because Foltz’s papers are not
available. I’m sure many have considered Foltz. That’s why I’m putting
together this archive so future biographers will be able to use these
materials. In the course of writing about her, I’ve learned about all these
* Evidence Favorable to the Accused and Effective Assistance of Counsel, 34 Stanford Law Review 1133 (1982)
* Washington v. Strictland, 466 U.S. 668 (1984). ·
– 17 –
other women of Foltz’ s time, and it was really a lot like when I first came
into teaching. When I first came into teaching, I really knew personally,
or at least knew of, every other woman.
Judge Cordell: All five of them.
Professor Babcock: Right. There just weren’t that many. And that’s the way it was with the
early women lawyers. They knew each other. They knew about each
other. So I started just collecting material on them too. That’s how this
course grew, and the website grew out of my collection. I came to realize
as I’ve been teaching this course over the last, say, six years that what we
as lawyers bring to this task of biography is a knowledge of the legal
materials and how to use them and what they’re really about. We need to
focus on that, the students need to focus on the legal accomplishment of
the subject, because otherwise it just gets off into hagiography too much.
We need to try and assess what they actually did, and get a case, or get a
paper, or get something they did and analyze it. Last spring when I was
urging this approach on students and helping the students do their papers, I
suddenly realized that’s what I ought to do with Clara Foltz. I’ve been
struggling to sort of popularize her intellectual achievement and you just
can’t make it that interesting. So that’s what I’m in the midst of doing,
spinning off a law review article about Foltz’s legal accomplishment.*
Judge Cordell: So they told their stories last night?
Professor Babcock: That’s it. Yeah.
* Barbara Allen Babcock, Inventing the Public Defender, 43 Am. Crim. L. Rev.1267 (2006)
– 18 –
Judge Cordell: Eighteen students. You went around and people just talked about …
Professor Babcock: I told the story, as I just told it to you. It created a place that was safe for
others to say personal things, unusual in law school. The students are
interesting. Most of them are women, though one or two men a year
usually take it. Often the men are minorities so they understand the issues
of outsider practice.
Judge Cordell:
It was really deeply satisfying last night because the course is off
to a good start. I felt really good about it, because something like that can
get too touchy-feely; all you need is someone to sneer or not go along to
ruin things.
You mentioned several things in talking about the class last night, so if
you don’t mind I’d like to just go back over and have you talk about a
little more of some things. Is that all right?
Professor Babcock: Sure.
Judge Cordell: So again, chronologically, you made reference to a number of things; this
was all in your in your career now as a public defender. So before you
went to the Public Defender Service, you worked for and with Edward
Bennett Williams?
Professor Babcock: Right.
Judge Cordell: For how long?
Professor Babcock: For about, I would say, almost three years.
Judge Cordell: And why him? How did that happen?
– 19 –
Professor Babcock: I met him, he was a very famous criminal defense lawyer, you understand,
so that working for him … it was a small firm of about nine huge men, like
all six feet and taller.
Judge Cordell: Barbara, this is after you had clerked? I’m trying to get this straight
chronologically.
Professor Babcock: Right.
Judge Cordell: So you finished law school in ’63?
Professor Babcock: Right.
Judge Cordell: You clerk?
Professor Babcock: Right.
Judge Cordell: And then you work for Williams, starting in ’65?
Professor Babcock: Yeah. Now remember, this is a time when most people didn’t want to do
criminal work. So it was unusual for a Yale graduate to be doing criminal
work or want to do it, and that’s one thing.
I had written a paper in law school on a case that Williams had
argued in the Supreme Court, and it was called Silverman, the Spike-Mike
case.* The question was whether a microphone that someone put into a
wall that picked up the sound in the adjoining room, whether a trespass
was required to make it a Fourth Amendment violation. It was one of
those early Supreme Court cases about technology, the “Big Brother” kind
of cases.
* Silverman v. United States, 365 U.S. 505 (1961)
– 20 –
Judge Cordell:
I was writing this paper for this course on constitutional litigation
that was taught by Telford Taylor. Do you know who Telford Taylor
was? Oh God, it’s so sad, he was such a really great man, who I loved a
lot who was the prosecutor after Robert Jackson at the Nuremberg trials.
That was the most famous thing he ever did, but he practiced law, he
wrote books, and he taught as an adjunct professor who was kind of a
Renaissance man. He taught this course called Constitutional Litigation
and we each wrote a paper about a case and explained the tactics that were
used and so I wrote about this fourth amendment case, the Silverman case.
Then Williams came to Yale to give a talk about something … He
had just written this book called One Man’s Freedom where he talked
about defending the guilty and defending all these high-profile criminal
cases and why it was necessary to have criminal defense lawyers and that
kind of thing. So he came to give this lecture, and I arranged to interview
him about the Silverman case and his tactics and why he did this or that or
made this argument.
I have this really visual memory of our interview. I remember this
classroom and the winter light coming in and Williams who was very
flirtatious. But god knows I think I was being flirtatious back, I mean it
was a flirtatious encounter though we covered a lot of material about the
case.
Not flirtatious material.
– 21 –
Professor Babcock: Not flirtatious material, we didn’t actually flirt. Nothing was actually said,
but it was an atmosphere. But he then said, “What are you going to do
when you graduate?” And I said, “I’m going to clerk but then I want to do
criminal defense work.” And so he says, “Well, give me a call.” So,
when I couldn’t get a job at the Legal Aid Agency, I gave him a call and
that’s it, so I went and worked there. Which was, I often tell students, I
encourage students to spend some time in a law firm and try to make a
relationship and to see … it’s just great training. And law firms are
different from each other.
Judge Cordell: You were with him how long?
Professor Babcock: About almost three years, two-and-a-half years, maybe.
Judge Cordell: And from there, did you go to Legal Aid?
Professor Babcock: Yeah. And it ended badly with Williams. I had really said at the
beginning that I would want to try my own cases at some own point. And
it really became very clear that I was never going to get to try my own
cases. Because he was convinced that the clients wouldn’t accept a
woman. But in fact, the clients loved me. And also, at that time, it was a
very small firm that mostly represented organized crime, The Sopranos
television show is very familiar to me … those characters are so real. It
was a kind of client, I remember … there was another guy from Yale was
there and he was very intellectual, a lovely guy, Bob Weinberg was his
name. I said, “I have my doubts about this work. Even though I like the
guys, you get involved with them.” And there were some I really did like
– 22 –
and became friends with, but there were a lot of them I really didn’t like.
They were just really low life and …
Judge Cordell: You’re talking about the clients?
Professor Babcock: The clients, yeah. And also you couldn’t trust them. They were pushing
jurors down the stairs [laughter] and that kind of thing. You just have to
watch them every second [laughter]. But Weinberg said tome, look, don’t
you realize that the average person on the street is not going to have the
resources to take a case to the Supreme Court and so that in a way you’re
using all these resources and talents to make this law that’s for the benefit
of everybody. But the trouble was no case with an Italian last name makes
good law [laughter]. You just look at it and there’s not a single one, so
that was part of it. But it was mainly that staying with Williams would
have involved too much of a struggle to get my own work and also … I
really felt better about representing poor people. It was a bitter parting. I
left at the end of the year, I remember. I was due a bonus, and he didn’t
give me the bonus … and he never said goodbye or thank you or anything.
But I always felt grateful for the training and the things I learned there,
and over the years, I heard that he was proud of my having worked there
and spoke well of me, but we never really saw each other again.
Judge Cordell: How interesting. You mentioned in the course of this that you remember
the last case you tried. You said it was second-degree murder case.
Professor Babcock: Right.
Judge Cordell: Do you remember the first case you tried?
– 23 –
Professor Babcock: Very well.
Judge Cordell: So, I want to hear about the first case and the last case.
Professor Babcock: Okay. Well, the first case …
Judge Cordell: This is as a public defender?
Professor Babcock: Right. I count this as the first trial on my own. When I was working for
Edward Bennett Williams from ’64 to ’66, I was second-chairing a lot of
cases and I even examined a few witnesses but it wasn’t like being
responsible. There’s something that’s so different, which I tell the
students, to be the second in command, which is to carry the briefcase, to
write the motions, because what you do is just come up with smarter
arguments-that’s your job to think of clever things but you’re not in
charge, you’re not trying to see how it’s going to work and how it’s going
to all fit together and whether it’s going to get your client the best possible
outcome.
Judge Cordell: I can’t picture you being second chair.
Professor Babcock: [laughter]
Judge Cordell: I cannot. Unbelievable.
Professor Babcock: Just picture me as a kid. I was a kid.
Judge Cordell: So, your first job on your own … ?
Professor Babcock: And so this was the first trial on my own. I had left Williams and went to
work at the Public Defender Service, which was then called-it wasn’t
really the public defender yet-the Legal Aid Agency.
Judge Cordell: Go ahead.
– 24 –
Professor Babcock: Well the usual way of providing counsel was by appointing lawyers, and
since there’s so many lawyers in Washington that really worked in some
sense. There were the Fifth Street lawyers; we called them, who had their
officers near the courthouse who were just available for appointment.
Then there were the uptown firms who would take appointments from the
court as part of their pro bono contributions, but it was quite disorganized.
And so when Gideon came down in ’63, there was this idea of this pilot
project to see how it would be best to deliver legal services; and Gary
Bellow was appointed the deputy; and the person who was Director was a
man named Charlie Murray. He was an old Fifth-Streeter but he was
receptive to the young turks, which I was one, he was a good FifthStreeter in that he really did try to do something for his clients and didn’t
just plead them guilty and take whatever money they or their families
might have.
Judge Cordell: So when you joined the Legal Aid office, there are maybe a half-dozen of
you. And are you the only woman?
Professor Babcock: Oh, sure. Yeah. [laughter] No other women in sight.
Judge Cordell: Stupid question … And how about people of color-any?
Professor Babcock: Now let’s see. I’m trying to think about that because … no I don’t think
that either. All the clients were people of color. [laughter] But no, they
were just these few lawyers and it’s really a long story because this guy
Charlie Murray had been appointed and he hired Gary Bellow, this young
intense man who went on to be a major force in clinical education and to
– 25 –
teach at Harvard. And at the same time the Prettyman program started at
Georgetown and that had the same idea, which is let’s train lawyers to
represent criminal defendants-to really do it well and figure out what’s
involved in doing it. So there was this little community that started up in
D.C., dedicated to implementing Gideon and I really wanted to join that.
community.
But what happened was that Charlie Murray retired and then Gary
Bellow left to go teach at Harvard and then this person came in named
Ken Woods who was another Fifth-Streeter like Murray, so everyone
thought he would hire the equivalent of Gary Bellow, as a Deputy. But he
didn’t. Charlie Murray had been a figurehead in the best sense of the
word, but Ken Woods had a different philosophy that he wanted to
implement. His idea was to pick out the innocent and otherwise deserving
people for real service and the others you’ll make sure they get due
process and not much more.
Judge Cordell: So Ken Woods is there.
Professor Babcock: Yes, but I decided I could have my cases and do what I needed to do even
if I didn’t agree with how it was run .. So I got in, and I always tell this
story. I started out- Here I come from Williams where I have been
flying first class, never fly except first cabin, and I’ve been representing
big Mafioso and there’s no limit to the amount of money that can be spent
on a case and I have been filing motions and spending hours, months
preparing somebody to take the stand, that kind of thing. So, I come to
– 26 –
work for the Legal Aid Agency, and I start out trying misdemeanors and I
remember the very first case ( this wasn’t the first trial, but the first case).
It was called the Court of General Sessions. It was this little local
misdemeanor court in D.C., and so I go there to file a motion for a bill of
particulars.
Judge Cordell: A bill of particulars in a misdemeanor case?
Professor Babcock: A bill of particulars in a misdemeanor case. And this is my training and I
get to the courthouse and they say, “What do you want us to do with this?”
I say, “I want to file this motion.” [laughter] And they say, “But there’s
no file.” But I just did, I was so cool. When I look back on myself, I can’t
even see how I could do this. I just insisted. I said, “You must have
something. You have some record of the case.” And so then I helped the
person clip my motion for a bill of particulars to the one little page stating
the charge in boilerplate language.
Judge Cordell: A little sheet.
Professor Babcock: But it wasn’t very long until I moved up to felonies, and I had my first
case and that was James Moseley and I can sort of see him right now …
Judge Cordell: Describe him.
Professor Babcock: … see his face. He was short, he had sort of medium-brown skin. He was
short compared to me.
Judge Cordell: How tall are you?
Professor Babcock: I’m five nine.
Judge Cordell: Back then you were probably five ten.
– 27 –
Professor Babcock: No No. [laughs]. Now I’m probably five eight.
Judge Cordell: Okay.
Professor Babcock: But at any rate, he had one of those looks that had a little bit of Native
American in him, high cheek bones. He had been caught red-handed and
it was his first charge. He had no prior record and that was striking
because most people that you represented on felony charges at least had a
juvenile record.
Judge Cordell: And how old a man was Mr. Moseley?
Professor Babcock: Maybe 23, 24. Not much more. He was my first real client, and he’s
charged with, he’s overcharged with all these things which is not only
unauthorized use of a motor vehicle, but possession of stolen property and
dismantling. Somehow they broke down this thing that they thought he
did-which was take this car and take it apart in an alley in order to sell
the parts of it-and turned it into like four or five major felony charges
that could have gotten him fifteen years in jail, twenty years in jail. These
days it would be forty or fifty years in jail.
Judge Cordell: That’s unusual.
Professor Babcock: He was clean-cut and kind of sweet. But very low-keyed, so I always
Judge Cordell:
got my clients out of jail right away. That’s the first thing I did, so nobody
I represented ever sat in jail. He was very touched and impressed by that.
I forgot what his story was …
He had a story?
– 28 –
Professor Babcock: He had a story, about the transmission. Like someone walked by and
handed him the transmission [laughter], and he was caught walking with
the transmission to this car, which I think might have been a Mercedes or
something, on his shoulder. So, the police charged him with this. And he
said that he was just walking down the street, and somebody handed him
this, or sold it to him for a dime, or someone he knew gave it to him. I
was just really appalled that they would charge so much for this thing and
put this guy whose never been charged with anything, has no prior
convictions, away for his whole young manhood-that’s what he was
facing. And they wouldn’t give any kind of plea since they’d overcharged
it so much-so they’d give a plea to something that carries like twenty
years so that’s no kind of plea. So I was sent out to trial before Judge
Bryant with Moseley who knew nothing about the criminal process.
Judge Cordell: Before you go a little further, can you tell me about your first meeting
with Mr. Moseley. Was he incarcerated? Did he come to your office?
How did all that work back then?
Professor Babcock: I can’t remember, except that typically, I can’t remember specifically
about him. But that was an important thing back then, which I always
pushed ( which I learned from being at William’s office in representing
rich people) there was this Bail Reform Act. There is the Eighth
Amendment, which says you can’t charge excessive bail and at that time
there was the Bail Reform Act and you could get somebody out if they had
ties to the community and no prior record. There was no sense at all in
– 29 –
leaving somebody in jail. So I could get all my clients out, I didn’t have
any clients in jail. I went to the Court of Appeals ifl had to. You can’t
believe the people I got out. [laughter]. Some of them didn’t show up
either.
Judge Cordell: Didn’t come back. [laughter]
Professor Babcock: Never came back. So he was out, and that’s the other thing. If the first
thing you do is get somebody out, that establishes trust between you. And
it’s just a whole different thing. It really breaks my heart sometimes when
I hear public defenders talking. Like, I want to keep my clients in jail
because you know where they are and that kind of thing. That’s just the
opposite of what it was. Because I really did approach James Moseley as
if he was one of my rich mafia clients and entitled to that same kind of
service. And so the first thing is to get out. Probably I would get them out
and get them a job or get them into drug treatment or whatever.
Judge Cordell: You found jobs for your clients?
Professor Babcock: Well, we got this offender rehabilitation project set up that went with the
public defender. That was one of our innovations. This is another thing I
learned from Williams. This is what you do for the rich people, get them
out. They establish this record. They have a baby. They get a job. They
get off drugs. By the time the day comes when he’s going to be
sentenced …
Judge Cordell: He’s· a saint.
– 30 –
Professor Babcock: … he’s a whole different person. But anyway, James Moseley, this little
guy. And as things went along it turned out that the government had
found him coming out of the alley with the transmission on his shoulder
and then there was this stolen Mercedes there and there were all these
tools. Anyways, they lost the tools. I made this huge thing out of the loss
of the tools, which is that maybe the tools would have shown that they
weren’t his, that they didn’t have his fingerprints on them, that they were
not appropriate for dismantling a Mercedes, that they weren’t the tools that
were used, you know–anything. So we were sent out to Judge Bryant, it
was my first case
Judge Cordell: Now, who’s Judge Bryant?
Professor Babcock: Judge Bryant is my hero. Judge Bryant was this wonderful African
American judge, the only one on the court. The district court at the time in
D.C. was full of people who couldn’t get appointed in their own statesold politicos from other places. In those days, the common law crimesrape, robbery, and murder-were actually tried in the federal courts.
There wasn’t a D.C. Superior Court for the trial of felonies. But then
here’s this bench, with all these White guys, who were not interested in
trying criminal cases. But what you had was Black juries. You think that
would ‘be a good thing, except these were Black, middle-class juries and
these are not Black, middle class people that you are representing. So it
was tricky.
Judge Cordell: Tell me about Judge Bryant. So he’s a good guy?
– 31 –
Professor Babcock: Judge Bryant was this wonderful man. I would wish for everybody that
they would try their first case before Judge Bryant. And, in this White,
virulently racist courthouse where everybody was against you, his
chambers were a little oasis. He had this wonderful secretary (I can see
her, I can’t remember her name) who would type up an order for you. I
would go-now when I look back on it I can’t even believe it-I would go
and sit in his chambers, this busy man, and tell him my case and I would
say, “somebody was shot and he says its self-defense but there was no
weapon found on the deceased.” And Judge Bryant would say, “So, how
long was the deceased there with his friends after the shooting?” He
would give me ideas about the cases and I would talk to him -probably
ex parte communication but it was really the only place, the only place
there was any justice or mercy. Those days you could choose who you
were going to plead guilty in front of, so we would take really hard cases
to him. But if there was a case where your person had any chance at all,
we tried to take it to another judge so we didn’t overwork Judge Bryant.
Judge Cordell:
He was just a great man and I think he graduated first in his class
at Howard and he was always attached to Howard. Before the civil rights
movement and affirmative action, Howard was where the really smart
Black people went. Then the school really fell apart. You know that
history?
Not that it fell apart but certainly that it was one of the few avenues
African Americans had to get a legal education because everything else …
– 32 –
Professor Babcock: Everything else was closed. But then, all the schools opened up and took
the cream. But Judge Bryant was always very active with Howard and
helping them and teaching there. I saw him try a case once in front of a
jury, and he was a handsome man, oh my god, like a movie star. There
he’d be and he was wonderfully spoken and … I remember seeing him say
“that was like going bear hunting and giving the bear the gun.” And
everybody just laughed, and … but, anyway, I was sent out to trial in front
of him for my very first case.
End of Tape Two
– 33 –
Judge Cordell: It is February 1, 2006, at the home of Barbara Babcock, continuing with
our third session. So Barbara, let’s go back to your first trial in front of
Judge Bryant. Do you remember the prosecutor in this case at all?
Professor Babcock: You know, I really don’t. I can’t. See, this is like how along ago was
this? This is 1966 …
Judge Cordell: Forty-some years ago.
Professor Babcock: Yeah. I can’t remember the prosecutor, but I do remember that he was
stunned.
Judge Cordell: What?
Professor Babcock: Stunned. Because, first of all, he wouldn’t give me a decent plea. And I’m
a little bit of a known character around the courthouse, not because of how
I act or anything-but here I’ve come over from Williams to work for the
Legal Aid and there’s already this sort of buzz around Legal Aid and so I
leave the most prestigious criminal job in the city to come work for this
little agency and now here I am representing the little criminals instead of
the big Mafia types. And also, as I think about myself, I was sort of
passionate and sure I was right and always pushing along and not ever
accepting the system and never saying well I just want to learn, I just want
to get along. Maybe people thought I wanted to make a name for myself,
but this is not the case you would choose to do it.
Judge Cordell: Little Mr. Moseley. So were you stunned when Judge Bryant said,
“Motion granted”?
– 1 :-
Professor Babcock: Well, see, that’s the funny thing. That’s just how I was when I was young.
I expected to win. I was really upset when they denied motions, which is
what happened most times. But this was my first case, and he granted the
motion.
Judge Cordell: It was the right ruling. I mean if they don’t have them, they’ve lost them.
Professor Babcock: I know. They’ve lost them. It would be one thing if they had charged this
as a misdemeanor or they had just made it a UUV, or possession of stolen
goods or something. But they’re blowing it ‘up into this huge thing where
you can really serve a lot of time. And if they’re going to do that then
they’ve got to observe the rules and get the evidence out here and if
they’re going to make it a federal case, they’ve got to treat it like a federal
case. I might have even said that. But that was the idea.
Judge Cordell: Do you remember Mr. Moseley’s reaction at all?
Professor Babcock: I think he was kind of amazed by the whole thing. He had never been in
the criminal process before, so he thought this is the way it was. And he
appreciated my efforts, he really did. But he didn’t know how lucky he
was. After winning the motion to suppress, I tried his case.
Judge Cordell: This a jury trial?
Professor Babcock: A jury trial. Yeah.
Judge Cordell: So you made a comment a while back that you loved to talk to juries.
Why?
Professor Babcock: Oh, i,t’s because so much is riding on it. There’s really a good case to be
made against conviction in almost every case that gets to trial, I think.
– 2 –
Judge Cordell: Really?
Professor Babcock: I think. At least in every case I tried. You wouldn’t go to trial if you
didn’t have something. Arguing to a jury is not just talking. And that’s
why all other forms of public speaking pale in comparison. When you talk
to a jury, you might persuade them to do this huge thing-and you do it by
the way that you explain things. Jury summation is this combination of
rhetoric, of oratory and of telling them things that they never knew before
or that they didn’t see. The thing about juries is they’re very intelligent,
they really have been watching and trying to do the job and so if you
explain the significance of the things they’ve observed, they really
appreciate it. And that’s what I did.
It was so exciting because it’s the ultimate in persuasion, and if
you persuade them, you win. And a person is free instead of going to jail.
I mean, what could be more gratifying and exciting than that? So I can’t
remember the details of what I said, but it was mostly a case of what the
government didn’t have and also of my intense desire to win my first case
on my own.
Judge Cordell: Was this a case you were losing sleep over?
Professor Babcock: Oh, LaDoris, I just can’t even tell you, I mean I tried maybe fifty cases in
my life, maybe less, maybe thirty to fifty, I don’t know. I remember a lot
of them, especially the ones I won, jury trials. But before every single
one, I would get up in the morning and I would throw up, I would have
diarrhea, I would just think, “How am I going to live through this?” And
– 3 –
then I go in, and once I started then I was fine; and it was like being in
another world, trying a case, and that’s why I kept doing it even after I
was running the public defender. Trying cases was a relief from the
administrative hassles. You’re just lost in this role and there’s nothing
else that matters and everything in your mind is totally focused on one
point that is everything you think about. From the very beginning of the
case, I’m thinking about the closing argument. And every single thing that
happens in a trial, I’m thinking how I’m going to fit that into the closing
argument or what significance that has.
I always start with a theory of the case from the beginning. It’s
one of the things I trained my lawyers (I call them “my” lawyers) to do. I
learned that from Williams, I have to admit it. I don’t give him credit
maybe as much as he deserves. You start from the very beginning with
your theory of the case. The idea that the defense doesn’t need to prove
anything, well that’s bullshit, you know.
Judge Cordell: [laughter]
Professor Babcock: You’ve got to give the jury at least some idea of a way it might have
happened other than the way the government says. I mean, you don’t have
to prove it. That was it, and I can still remember jury arguments that I
made, they come back. You can imagine, I was a nervous wreck, I was a
little thin thing.
Judge Cordell: You were how old?
-4-
Professor Babcock: Let’s see. How old am I? It’s 1966, and I was born in 1938. 28 or 29. I
told you this story about Joe Nesline. My old client who was the biggest
gambler in Washington, D.C., and maybe on the East Coast. I had
represented him (when I was with Williams) and he was very dedicated to
me, he thought I was really good. So here I am arguing for this little
Black guy in front of Judge Bryant with a jury of twelve people; and I can
almost see them but I can certainly see the courtroom, which was all
paneled, one of these great big courtrooms, all wood paneled and Judge
Bryant way high up. Then there’s Joe Nesline, the biggest gambler in
Washington sitting in the audience.
Judge Cordell: And how did he come to be there?
Professor Babcock: Oh, he heard when I left Williams. He couldn’t believe I had left
Williams. He entreated me not to leave Williams, and if I was going to
leave Williams to just go out on my own, he would bring me business.
Judge Cordell: Okay.
Professor Babcock: He knew that I was trying the case and so he just came to watch it. For
years afterwards, he would tell people about, “She got this little nigger off
and he had the transmission on his shoulder and she got him off.”
[laughter]
Judge Cordell: [laughter]
Professor Babcock: He couldn’t believe it. He couldn’t believe the scene. And Judge Bryant
couldn’t believe what this big DC gangster was doing in his courtroom.
Judge Cordell: Your fan club.
– 5 –
Professor Babcock: My fan club, right.
Judge Cordell: So you argued … ?
Professor Babcock: So I argued the case and I really wanted it. That’s the other thing that I
can always convey to juries and that’s what I said to my lawyers in
training them which is that a jury trial is a love affair with the jury, you’ve
got to make them … It’s not about the client. If it’s about the client you’re
in deep trouble. [laughter] It’s about you. And that you have to get across
to them without saying it directly that they are going to personally
disappoint you and you’re not going to love them anymore and you’re not
going to represent their children when they get in trouble if they don’t
acquit this person, that’s the subtext of what you’re saying. [laughter]
Judge Cordell: So Barbara, where did you get this from? I mean, is this … was this from
Williams, was he telling you? So, where did you get this?
Professor Babcock: No, no,-no, no. I don’t know. I think it’s an after-the-fact rationalization,
a post-hoc rationalization of what I did.
Judge Cordell: This is pretty heavy … that they’re going to let you down. And this is …
Professor Babcock: Right. That’s how you win. That’s how you win, see. And maybe it was
partly from observing Williams. I also observed with Williams that as he
became old and fat and successful, the jury didn’t care anymore. You
have to make them love you, to start with. Once they love you, then you
have to transfer that to your client, to let them know that if they don’t take
care of my client here, I’m not going to reciprocate, that’s all the subtext.
But you give them lots of ways to do it. You don’t talk down to them and
– 6 –
don’t ask them to do anything really hard like nullify or anything, see,
that’s too hard.
Make an argument, give them something, give them reasonable
doubt. I was really good at it, doing jury arguments. That was one of my
strong suits because I thought about it from early on; and I would go and I
would practice it; and I would usually have notes because I don’t believe
in speaking without notes; you might miss something, especially in a jury
argument. They would just be a few notes and then I would just really
look them all in the eye and entreat them. I would make it entertaining
and interesting too. But anyway, they acquitted James Moseley. So
James Moseley couldn’t believe it, and Joe Nesline couldn’t believe it.
[laughter]
Judge Cordell: Judge Bryant couldn’t believe it.
Professor Babcock: Judge Bryant couldn’t believe it, but he …
Judge Cordell: So you convinced him that this Black man coming down the alley, there’s
a stolen Mercedes, he had at transmission on his shoulder, was not guilty.
Professor Babcock: Was not guilty. Or the government hadn’t proven it, hadn’t proved its
case. Because they hadn’t. And the subtext of what I was saying was
they’re charging him with all this and they’ve been careless and they don’t
deserve what they want which is to put him away and so that was it. So
that was my first case. Now, my last case …
– 7 –
Judge Cordell: Before you get to your last case, you made a statement earlier that the
prosecution represents the people and the defendant. So what do you
mean by that?
Professor Babcock: I mean that … that’s one of the things I’ve been writing about now is the
Judge Cordell:
ideal of public prosecution. The prosecutor should be a minister of justice.
He represents all the people-it’s justice he’s after. It’s not the idea that
he represents the good people against the predators, which is the current
notion. But he represents all the people. And the defendant and his
community are part of the people.
That really is the ideal of public prosecution. But if you don’t have a
prosecutor like that at least you’ve got to have an equal adversary to keep
him from excesses. So we don’t have that, we don’t have the ideal
prosecutor and we don’t have the equal adversary either.
But the trouble with prosecutors and being a prosecutor and the
prosecutors I knew-most of them-is that no matter how idealistically
they start out they just get involved in winning at all costs. All they ever
see is victims. They don’t have much contact with defendants. And then
these prosecutors go to be defense lawyers, half of them, and they think
defense lawyers will do anything. These former prosecutors are the most
unethical defense lawyers in my view because they just don’t have any
sense of what it’s really about. But anyway, all that aside, I want to tell
the story of my last case.
Tell me what year we’re talking about now.
– 8 –
Professor Babcock: Now we’re talking about 1972, and I’m about to count the first one ’66.
So six years later, and I’m about to come to Stanford. Sometimes when I
think about how hard I’ve always worked, I’m really struck by it. And
I’m wondering when I’m going to [laughter] not work so hard. But
anyway, Clinton Phillips Junior, something like that. He was a really (can
see him too) … He was light-skinned, good looking, and charged with
second-degree murder. That’s what I did, how I got to try ten cases a year
without carrying a full-case load; I would do second-degree murder
because if the government charged second-degree there’s something
wrong with their case. Otherwise they would charge first-degree. And
yet, it’s worse than manslaughter, but there’s always a defense. It’s
usually self-defense which is the best defense and really an intriguing
defense to present. And the law in the District of Columbia on selfdefense was particularly good in that-I’m not sure if this is true in
California-you could present any threats the witness said the deceased
had ever made. You could really try the deceased: that he was a bad man,
that he had a reputation for being bad, that he had made threats that people
heard that he’d made threats against the defendant, or any prior assaults
that the deceased had made against other people. Sometimes you get the
police records of those. Sometimes the jury got so confused they didn’t
know what to think: who’s on trial here? But you really put the deceased
on trial in a self-defense case and this case had some sad elements to it. It
– 9 –
had to do with drug dealing and kids, young people with guns and drugs,
and shooting each other, and I can see his face …
Judge Cordell: Who was he accused of killing?
Professor Babcock: Another kid that was trying to rob him, see. He was a drug dealer. That
was one of the little problems with the case …
Judge Cordell: And you got him out of jail? He was out on bail?
Professor Babcock: Oh, out on bail. Out on bail. Everybody’s out on bail. Everybody’s
entitled, it doesn’t have to do … they’re presumed innocent, LaDoris!
Judge Cordell: Absolutely.
Professor Babcock: So they’re presumed innocent, and he had lots of ties with community,
wasn’t going anywhere, showed up every day for trial, on time and
dressed nicely.
Judge Cordell: All at your direction.
Professor Babcock: But not too slick. No, I think that was his own instinct. This person
comes … the trouble with being a drug dealer, probably true today, is that
you’re really subject to being assaulted and people coming up trying to rob
you and kill you, so that was a self-defense claim. But, anyway, we won.
Judge Cordell: You got an acquittal.
Professor Babcock: We got an acquittal. The judge was named Corcoran … he got appointed
to the district court because his brother had been one of the top people in
the New Deal and was one of the people that wrote a lot of the New Deal
legislation. And this was Howard, his brother, who was appointed by
Roosevelt, but not a real liberal. He at least would leave you alone and let
– 10 –
you try the case. But I remember that the judge was really stunned at the
acquittal.
Judge Cordell: How do you know he was stunned?
Professor Babcock: Well, he just looked, he shook his head and he didn’t thank the jury and he
looked really surprised, see, because he had let me … I had this feeling,
I’m not absolutely sure … but I have this feeling it was sort of known I
was leaving and this was my last trial and he let me, just like Judge
Bryant, let me try my case, let me alone. I think that the first and the last
cases go together like that, because they were quite … let’s put it this way,
with another lawyer they would have been convicted in both cases. I
won’t say they were guilty, but they were both cases where I made a real
difference. Partly because one was my first case and one was my last
case, which I conveyed indirectly to the jury. I don’t want you to get the
idea that I never lost any cases. I lost cases. I remember some really bitter
defeats.
Judge Cordell: How did you handle loss – losing the cases?
Professor Babcock: Sadly. But I remember one of the first cases I lost was … oh god, what
was his name? I can see him too, he was a darling man. I felt sorry for
him. He was a guy who had no idea, beautiful young man, so he was
going to be in real trouble in prison. He just lived completely on the
street, didn’t have a family, didn’t know anybody and I got him off on one
charge and then he got convicted on another one. It might have been the
first case I lost, and I remember coming home and I was just crying and I
– 11 –
just think, “oh my god, how could they do that?” and “this judge is going
to give him all this time,” and “this young man, he’s going to be raped and
destroyed.”
Judge Cordell: And who are you crying to?
Professor Babcock: My husband, my first husband, who was a trial lawyer himself. And he
said, “You didn’t take a gun. And you didn’t go in the bank. And you’re
not going to serve any time. So what are you crying about?” But he was
really saying, which is what he always said, you do the best you can. You
make your argument, you give it your all, and then you just don’t worry
about it anymore. But I never felt that way.
Judge Cordell: It’s hard.
Professor Babcock: And I can still just remember the way the judge looked or the jury looked.
Judge Cordell: So, after you won a case, and let’s just talk your last trial and your first
trial. You go back to your office. Is that when you say, “I won” and is
there a big celebration? Is that what happens?
Professor Babcock: Oh, sure. Part of the Public Defender is the camaraderie and everybody
knows what’s involved in winning against tremendous odds. And so I
can’t remember specific celebrations, but there was a bar down the street
called the Golden Bull, where we had many celebrations but it was always
a big thing when people won a verdict. Or a hung jury, that’s almost as
good.
Judge Cordell: So, you mentioned in one of our talks … MayDay? Do you remember
that? What were you talking about?
– 12 –
Professor Babcock: Mike Wald wrote a whole piece; his tenure piece was on the MayDay
representation. This actually was a great story; this happened right before
my last case. And this was …
Judge Cordell: Early seventies?
Professor Babcock: I think it must have been 1971 because I was flying up, that was when I
was flying up to teach this course in Women and the Law at Yale. But
what happened is that it was the height of the Vietnam protest and a lot of
groups were mobilized to stop Washington, to shut it down. And they
were going to block the bridges, people coming in from Virginia and the
highways and they were going to shut the government down. And there
were maybe … This is the way I remembered it; we could read Mike’s
article and find out more. He has an article on it.* … but here’s the way I
remember it …
I lived on Capitol Hill at the time and I walked to work, which was
down by the courthouse; it was only about seven or eight blocks. Walking
to work, I just heard silence all over the city, early, I got to work. There
was a smell of tear gas everywhere and then we were mobilized, the public
defender was mobilized and we got the Prettyman fellows together and we
had a whole group of private counsel organized to represent people when
they were arrested and we had lawyers there. So, I got to the office
around 7:30, ready to direct the armies to go out and represent people but
there was nobody to represent-nobody was showing up to be processed
* Michael Wald, MayDay: A Study of the Legal System’s Response to Mass Arrests, 10 Criminal Law Bulletin 377,
516 (1974).
– 13 –
in the courts and we kept wondering what was happening and then finally
the lawyers were saying to me, these young men that I was the leader of. ..
I said, “Why don’t you get on your motorcycles and go look for them
because they’re not in the jails.” We knew that all these people had been
arrested, reporters had seen them arrested, it was on television that
hundreds or thousands maybe had been arrested but nobody was coming
to court. So they went out and they found all the detainees in JFK
stadium. They were just putting these people in there and it was cold and
there weren’t enough bathroom facilities and it was all before cell phones,
and they weren’t even trying to process them, they were just throwing
them in there. And so we brought a petition for habeas corpus and I said,
now let’s see, “We got to get a name here, did you get any names?” Not
one name. [laughter]
Judge Cordell: Got to put a name.
Professor Babcock: Got to put a name, well there’s 50,000 unknown … 50,000 John Does or
10,000 John Does, or I can’t even remember what it was, 25,000 … lots of
people. And then we called up the Chief Judge at the Superior Court and
by then D.C. had its own courts and it was about ten o’clock at night by
then and all these people were just out in the cold, and Judge Harold
Greene said, okay, “we’ll set a hearing right now.” And I can just
remember, I was cross-examining …
Judge Cordell: Ten o’clock at night!
– 14 –
Professor Babcock: Ten o’clock at night. The moonlight was streaming in the window and I
was cross-examining the Chief of Police and the Chief Counsel for the
police … it was really very exiting as you can imagine, very exciting.
Judge Cordell: Lot of reporters in the courtroom?
Professor Babcock: Oh, yes. It was really like this huge deal.
Judge Cordell: And you’re the lead counsel.
Professor Babcock: I’m the head of the public defender, and I had this wonderful deputy who
has drawn up the papers and I’m the mouthpiece … I just really … I did a
great job on cross-examining the police and also we were showing that
this was being run by the Justice Department and Nixon, and that the local
police were under orders, and no regular processes were being followed.
And it was just really something. So the judge ordered that people start
being brought and processed and that went on. It was like being in a war,
and then we brought suits about the conditions in the jailhouse where the
people were taken. It was just suit after suit that we brought, and we kept
filing papers, and going to court, and going to take care of people, and
representing them … and it was very exciting, but it was like being in this
big war. And we did a great job, I must say. It was really the public
defender at its best.
End of Tape Three
– 15 –
Judge Cordell: It’s February gth at 3: 15, we’re at Barbara’s house and again continuing
with her oral history. We’re now ready to proceed, and Barbara, this
session we’re going to conclude about the public defender’s office and if
we have time, the women’s movement. So why don’t we start off, if that’s
with you, with the public defender’s office. Talk about when you got
there, or do you want to start when you took over?
Professor Babcock: Memory is such a peculiar thing and I don’t know how much I’ve added
on but I never really felt when I was defending the mafia types (though
there were individuals that I liked) … I never really felt completely good
about it. I had all of the defense ideology in place-that you’ve got to
represent everybody and that it is a lawyer’s duty to represent the despised
and the accused and that you shouldn’t tum away anybody. I believed all
that, almost as my religion, but I just didn’t really feel good about it on the
whole, a lot of times, and I’d always wanted to represent poor people.
Judge Cordell: Let me ask you a quick thing. Are you religious?
Professor Babcock: I was brought up very seriously religious.
Judge Cordell: What faith?
Professor Babcock: Presbyterian. My mother was very religious and a deeply spiritual person.
Judge Cordell: Was your dad religious?
Professor Babcock: No, he was sort of … he wasn’t really anti-religious, but he just didn’t
really believe in anything. On the whole, he was the kind of person who
would say, “How could a star get close enough to earth to guide the wise
men without burning it up?,” that kind of thing. [Laughter] That was the
– 1 –
level that he was on. But I was engaged. I remember that … we always
went … I went to a prayer meeting or a youth meeting on Wednesday
nights and Sunday school; and I often taught in Sunday school. .. and
church on Sunday … and then youth meeting on Sunday night. So it was a
big part of my life and the only camp I ever went to was church camp; and
I was really brought up to believe a number of things that have had a lot of
influence on me even though when I got to college, I quickly lost faith in
formal religion.
Judge Cordell: Really?
Professor Babcock: And have never come close to having it again even though I’d like to.
Judge Cordell: What about when you were diagnosed with cancer? Did the religion thing
come up for you?
Professor Babcock: No, heavens no. Just the opposite. The only sense in which it came up
was I wish I did believe.
Judge Cordell: Interesting.
Professor Babcock: What my religious upbringing gave me was the idea that you ought to care
take of other people and help other people and do unto others and it’s
really like a very strong obligation. See, people think I’m so kind and
sweet but I… [laughter] … they don’t realize that it was just planted in me
from an early age that there’s no other way to be.
Judge Cordell: And you are kind and sweet.
Professor Babcock: I realize sometimes I don’t even know what I want because I’m always
trying to figure out what other people want and how to facilitate …
– 2 –
Judge Cordell: That’s how you’ve lived your life, isn’t it?
Professor Babcock: It is. Right.
Judge Cordell: Why change it now?
Professor Babcock: I was brought up religious, and I think that the idea that you ought to think
about other people in everything that you do and try to make the world a
better place for other people is just deeply imbued in me. And it was a
matter of my religious training, although when I abandoned religion I kept
that part of it.
Judge Cordell: Interesting. So, you leave Mr. Williams.
Professor Babcock: I did and I worked for Legal Aid and I tried cases for a couple of years.
Then, I became the director when it was still small, so the first thing we
had to do was get a statute passed and get some bodies in there and get
established. So we wrote the statute for the public defender service and
we made it a model in which we had a staff of investigators and a staff of
social workers to work with the clients in helping them find jobs and
treatment programs and that kind of thing. So we went to Congress with
this budget for a real model public defender and we called it ( we were the
first ones to call it this) the Public Defender Service (PDS). Now lots of
t~ings are named PDS. But we came up with it. And when I say we, it
was Norman Leif stein, my deputy, and me and my first husband Addie
Bowman and three or four other people. We lived this from early in the
morning into late at night, day in and day out. Nobody took off a weekend
and nobody had families – people had a lot of sex – but no families and no
– 3 –
obligations other than this. And I don’t recommend it or say it is the way
to get things done but it was exciting and I always had this feeling of
being exactly in the right place and doing exactly the right thing. A kind
of clarity of purpose that was extremely satisfying.
Judge Cordell: Were you extremely serious at that time? Did you have a sense of humor?
Professor Babcock: [laughter] At the time, I would say that I was always tired, and driven,
and in a rage (that I was repressing) that no one could see the injustice that
was happening and the necessity of providing defense lawyers and doing it
right away. I was also an incredible true believer in the sense of nobody
who would even think of being a prosecutor could be a defense lawyer.
There was a special soulfulness defense lawyers had and a special code
and understanding required in order to be really great at it. I also felt that I
had a real capacity for figuring out who would be good at it and
identifying them and teaching them and leading them.
Judge Cordell: What were your hours? Typical, that you’re talking about?
Professor Babcock: Oh, LaDoris! When I think today what people complain about I can’t
even believe it. But literally, I would get up at 6:30 or 7 and be at the
office from 8 until 9:30.
Judge Cordell: Did you have a big breakfast?
Professor Babcock: No, but you’d go and work for a few hours and have coffee and go out and
get a bagel. We had a couple of little lunch places we would go and get a
sandwich and talk about cases, but it was just …
Judge Cordell: So how late coming back from work?
– 4 –
Professor Babcock: Oh, about 8:30 or 9 at night. And then work most of the day on Saturday,
half a day on Sunday, week after week after week. But I did insist always
on going on vacations and getting out of town, I would say to my lawyers.
Clear your calendar and just get out of town, because if you’re in town, if
you come into the office even for a little while, then you just become
entangled. When you’re representing clients you can always file another
motion, identify another witness, interview another witness … or there’s
always something you could do. It’s like writing-you always can
improve what you’re writing and the same thing with being a trial lawyer.
Judge Cordell:
I was very good about it myself, every six months or so just leaving town.
But the thing was it was fun, there wasn’t that rigid work/play distinction.
I loved what I was doing, even though I was just tremendously wrought up
all the time when I look back on it. But I was young and I was excited and
I had thirty or forty people accused of terrible things, whose whole future
lives depended on me.
So were you married when you took over the office, or did that happen
afterwards?
Professor Babcock: One of my favorite memories is when I became the public defender and
my picture was on the front page of the Washington Post, and it says
thirty-year old trial attorney to head public defender; and I can see it right
now. (It was below the fold, I just want to tell you that.) [laughter] It
wasn’t above the fold. But there it was, in fact, and it had this really neat
picture of me.
– 5 –
.My dentist sent me this note that said, “I gave you your annual
checkup on the basis of this picture” because every tooth was showing. I
thought, “thirty-year-old trial attorney to head public defender.” Think
about that, that’s quite a headline. And I just thought to myself. .. trial
attorney, that’s what I am. I’ve made myself into a trial attorney, and I felt
really good about it.
I had just been married. I got married December the 16th, I think it
was something like that, in the Christmas season. And then four or five
months later, I became the head of the public defender. My first husband,
Addison Bowman was his name, was a great trial lawyer. He had been the
deputy and moved into Gary Bellow’s spot, but then he didn’t get to
execute the Gary Bellow role because the judges were not really happy
with the kind of all-out adversarial advocacy that we thought was required
by Gideon.
So Addie, when he saw that the deputy job was not going to work,
he got a job being a professor at Georgetown.
So that’s it, we were married and we had been married for a few
months and then I got to be the head of the agency and he was teaching
criminal procedure, evidence, and things like that at Georgetown and
getting started on his academic career. It was in that first year, I think, that
we got the statute passed, I’m not sure:
Judge Cordell: And that would have been … ?
Professor Babcock: ’67.
– 6 –
Judge Cordell: So the statute’s passed, which now gives you authorization to now …
Professor Babcock: To hire forty lawyers.
Judge Cordell: Forty lawyers.
Professor Babcock: Forty lawyers, ten investigators, and five or six social workers, and
support staff.
Judge Cordell: Was there any opposition to the legislation that you can recall?
Professor Babcock: You know, I don’t think so. I think everybody was, I really think …
something had to be done. I mean, Gideon said you had to have lawyers
for these people. And the appointed counsel system worked pretty well in
Washington because there’s so many lawyers, and in the sixties and.
seventies a lot of the firms considered it an important part of their pro
bono obligation to take criminal cases-but in the appointed counsel
system, which was also kind of expensive if you paid for them. And then
… from the beginning … this was my idea, and Norman’s too … that what
you need to make the public defender work is to have a mixed system so
the public defender doesn’t get the overwhelming case load, so that the
public defender is never responsible for all the cases; that’s what kills the
public defender. Because no one is really going to pay what it takes for a
defense for everybody, a real defense. And so they had the mixed system,
that’s what we wanted from the beginning.
Our idea, and part of the way we got money, was that the public
defender was not this elite little agency that has all these services for just a
few of the defendants, and maybe even picks the most deserving cases.
– 7 –
(That was one of the accusations that was later made: that we had such a
good record because we picked our cases.) Instead, we wanted our agency
to make all of its services available to everybody, and even more than that,
we would be available to sit down with appointed lawyers and go over
their cases with them. And our investigators would investigate for them,
and our social workers would write reports for them, and they could use
the resources of the public defender, and those would be resources for
everybody. And then we always had these training programs for the
privately appointed bar, see, and that was a big part of it too. That was a
very important part of the mixed system concept, which I think is still
really important, with public defenders. Now, I know a lot of California
public defenders have these conflict offices and that’s a way to ease the
load a little bit but that really doesn’t do it. You need to have a true
alternative system so that the public defender can say, “No more cases.”
Judge Cordell: Interesting. Did you have to testify before Congress?
Professor Babcock: Oh yeah.
Judge Cordell: You did? And what was that like?
Professor Babcock: Well, it wasn’t bad. You’ve got to remember what I was like then.
Judge Cordell: What were you like then?
Professor Babcock: (laugher] I was· eloquent and determined and sure that I was right. Again,
it was very unusual for a woman to be in this position. The other thing
that’s always gotten me ahead in situations like this is that I’m never out
for myself, and they could really see that and respect that.
– 8 –
Judge Cordell: You were not a self promoter.
Professor Babcock: I’m not a self-promoter, see. And I’m not there trying to make a big name
for myself and then Norm, I have at my side, my deputy, Norm Lefstein
who is … I’m like Joan of Arc and he’s like her accountant [laughter].
Judge Cordell: [laughter] That’s a great visual.
Professor Babcock: He is so reliable. He’s this tall Jewish guy who is so careful and would
never exaggerate or fib even a little bit in even a great cause.
Judge Cordell: You had complete trust in him?
Professor Babcock: Oh, yes, absolutely. But anybody would, see. And so we’re testifying
together and I make the spirited passionate plea about justice. And he
comes in about how the public defender, by training other people, can save
money and give everybody good representation; there won’t be all these
ineffective assistance of counsel claims. But anyway, we were really a
team.
Judge Cordell: So you must have been ecstatic when the law passed, or was it just like,
well, we expected it.
Professor Babcock: We really expected it to pass. There was some way … there was a lot of
pressure, especially in the nation’s capitol to comply with Gideon and we
had this extremely liberal court of appeals that was really in charge of the
criminal stuff so we were on … I would never claim credit for generating
the movement-but I really caught it, caught the wave, and brought it to a
high point.
– 9 –
Judge Cordell: So, with all this happening, and you run the office, and then the statute
passes, and you have forty lawyers, and all this. Are you constantly
calling home and saying to your parents, “This just happened. This just
happened.”
Professor Babcock: Well, my parents were nearby, they were in Hyattsville, Maryland, and
very proud of me. But you are asking a bigger question — where did I get
my help, or my strength. So let me answer that: it was the camaraderie of
the people in the public defender. We were all in this together and we
were all watching each other’s back and taking care of each other and
trying to help each other.
Judge Cordell:. Us against them.
Professor Babcock: Yes, us against them. And we believed that we were the good people and
the right people and the rest of the world really didn’t see it. So it was just
a bond; we really did love each other. That’s where I got my strength;
sometimes when I look back on it, I just can’t believe it. How brave I
acted. But I was really very scared the whole time.
Judge Cordell: Really?
Professor Babcock: I think on the inside because when I came to Stanford I felt waves of
paranoia lifting from me. You must have felt a little bit like that when you
left.
Judge Cordell: When I left the bench?
Professor Babcock: Yeah.
Judge Cordell: I felt relief more than anything …
– 10 –
Professor Babcock: Waves of relief .. .
Judge Cordell: … and the weight … and adjusting to not having to make decisions all day,
everyday …
Professor Babcock: That everybody is watching you. And that’s actually what, see, I made
decisions all day, everyday …
Judge Cordell: Affecting people’s lives.
Professor Babcock: Administrative decisions and then I did, as I told you before, always keep
a caseload because I didn’t want to give up trying cases. I justified it by …
as much as I liked the administrative work-and I learned a lot about it
from Norm, who’s just a great administrator, and from experience also
about how to run a place-it couldn’t have sustained me, just doing
administrative stuff. So I always tried … I did try eight or nine cases a
year, about a case every other month or so. And I justified it also partly
that I would train somebody else, take somebody along. I just really
worked like a little horse all the time, work, work, work …
Judge Cordell: And your support system was … people that you worked with everyday.
Professor Babcock: Yes, intimate friends. My public defender friends, law school friends …
Judge Cordell: The people you could cry with, when it’s just overwhelming or something
had not gone right or you felt you hadn’t done the right thing … these are
the folks?
Professor Babcock: Yes, and these are the folks that no matter what kind of mistake you made,
they’d be behind you. And who understood.
Judge Cordell: So what about your parents?
– 11 –
Professor Babcock: Well, they didn’t know quite what to make of it because once I went to
Yale, I just entered a world that was almost unknown to them that they
almost couldn’t imagine, and they both sort of felt that way. I do want to
emphasize that they were very proud of me. But I never had parents who
told me what to do or gave me any advice whatsoever. And I always sort
of longed for that, for someone to tell me, “This is right and this is
wrong.”
Judge Cordell: Was that true of your brothers as well?
Professor Babcock: Yeah, it really was. We were quite a dysfunctional little family though
loving …
Judge Cordell: What family isn’t? Isn’t every family dysfunctional?
Professor Babcock: Dysfunctional in some way. In a different way, right. But my mother
used to come and watch me give closing arguments.
Judge Cordell: Really! Is that something you wanted?
Professor Babcock: Yes, oh yes. She’d always come and watch me do whatever I was doing.
Judge Cordell: Where did she sit?
Professor Babcock: You asked the right question. I didn’t want the jury to think that I thought
this was some kind of show and there was mother who looked kind of
like … we look alike.
Judge Cordell: There’s a resemblance.
Professor Babcock: We had enough features in common, yeah, you met her. So I would make
her sit in the back [laughter] and wear sunglasses and never ever
acknowledge me [laughter] in the courthouse where the jury might see her.
– 12 –
Judge Cordell: And she did that? She obeyed?
Professor Babcock: She did that. She absolutely obeyed. But the trouble is, I’ll never forget,
she came to … see, l couldn’t always tell in a trial when the closing
argument was going to come up. But she came to quite a few of them, but
the one I remember was this man I represented one time and I used to have
nightmares about this case. I don’t know why in God’s green earth I had
my mother come to it, and not only my mother but some of my students
from Yale and Georgetown.
Judge Cordell: So you had groupies.
Professor Babcock: Yeah, they were groupies, right. And this was this case, this horrendous
case where the defense was insanity, and the guy, James L. Cockerham
had murdered and raped (in that order) a little six-year-old girl that he was
babysitting for the mother. He was a plumber, a guy who had a criminal
record-little stuff, never for anything violent. So he’s living in this
rooming house and there’s this beautiful divorced woman with a little girl,
and he’s watching her and madly in love with her. And she leaves and he
makes friends with the little girl and babysits. And she goes out with
another man and he kills this child.
Judge Cordell: That’ll fix her.
Professor Babcock: And then rapes her. And so he’s insane, of course. Who would do
anything like that if they weren’t totally mad? But it’s the kind of thing,
the jury’s too afraid if they find insanity that he’ll get out and do it again.
And he’s totally unappealing, he’s an old fat white guy who was an
– 13 –
Judge Cordell:
alcoholic and came from a terrible abusive childhood and was a plumber
or a butcher.
He was a butcher?
Professor Babcock: A butcher or a plumber. And the case was sent out in front of this judge who
was Catholic and really did not believe in the insanity defense. You sin
and then you’re forgiven, and you take it on yourself. But this idea that
you’d do things that you’re not responsible for is anathema to Catholicism.
And this judge had … Right before I went out to trial in this case-which
was extremely hard fought-I’d gotten into an altercation with this judge
who was a very well-respected judge over one of the lawyers at the public
defender who the judge thought had acted unethically.
It was my job, but I also thought I was right, to defend the lawyer.
I refused to apologize and back down, and I sent lots of people to try to
calm the judge down but he was just beside himself. So he was just
furious at me the whole time from this previous incident, and I’ll tell you
the story about the lawyer because it’s an interesting story. But the judge
was just furious at me the whole time and just like I was scum and I was
representing this scum and trying to put over on the jury this idea of
insanity. You know how the Judge can undercut you. Oh God, it was so
gruesome.
I remember making this closing argument. .. That was really a
great argument in which I pleaded with this jury to come into the twentieth
century and not rule him out of the human race. That he was a person and,
– 14 –
as a person, he couldn’t have done this unless he was crazy. And if you
won’t see that, then you’re saying he’s a monster and he’s not. That was
the sort of argument that I was making but in much more eloquent terms.
My mother was there and my girls were there .. .it was, oh god … and a lot
of people from the agency – that’s what we always called it, the agency –
were there. And this judge just glowering at me and I think he interrupted
me once or twice when I was really hitting on all points
But it was really hard for my mother, see. She was so proud of me
and she thought I was so wonderful and sort of seeing me in this position,
defending this person that she couldn’t even believe who was so awful and
then to see this judge disrespecting me – all of my people in the audience
looked sort of like they had been hit by [laughs] a truck.
I came back to the office and all my men (I think of them as my
men, my troops) were all looking at me with this look and so I said, “So
what did you think of the argument?” And they said, “Oh, it was great. It
was a great argument.” And I said, “Well, why didn’t you say
something?” And this guy said, “You don’t have to tell a beautiful woman
she’s beautiful.” [laughter] And I said, “Are you crazy? That’s the one
you have to tell. That’s the one who cares!” But I lost that case, as you
can imagine, I don’t think anybody could have won it, I’ll say that.
Judge Cordell: Was the jury out for a while?
Professor Babcock: They were out for a while. They were. And then the guy committed
suicide in prison, and I was glad. I thought it was the best result.
– 15 –
Judge Cordell: So the reason the judge was furious with you … ?
Professor Babcock: Did you ever meet Matt Zwerling? He was in Tom Grey’s class at law
school and he came to work at the public defender, and he was one of
these guys, he was … I think he might have been second in his class at
Yale (in those days we kept careful record of those matters) and a brilliant
guy, a great writer, clerk on the Supreme Court and the whole business,
and came to work … And that was the other thing-when I was running
the public,defender, there was another story on the front page of the
Washington Post, again below the fold but still, about the public defender
when I was running it and how the top lawyers in the nation wanted to
come work for the public defender and the Supreme Court clerks and all
the great people that I had hired, and Matt was one of them.
Judge Cordell:
But anyway, he was about to do his first felony trial by himself and
it was a robbery case. I think it was a one-witness robbery. And it was a
hard case because … I can’t remember the exact detail, but the witness … it
was not a cross-racial identification; it was a same-race identification. The
defendant may have been somewhat unusual looking; I can’t remember.
But anyway the original description matched, and it was a description he
gave right afterwards and, so, it was a tough case. When he originally got
the case, Matt had tried to interview the witness and the witness wouldn’t
talk. And that was always a little struggle, whether they would talk to the
defense or not.
Oh yeah.
– 16 –
Professor Babcock: Then it got set for trial, and Matt thought he would try again, to talk to the
witness. Some months had passed. People that have been victims of
armed robbery are really angry, a lot of them, even if the weapon hadn’t
been fired. That fear- it’s very assaultive to have a gun pointed at you.
But anyway, he thought he might do better with him, so he went to look
for him and turned out the guy was not at the address where he had
originally been. So Matt did the usual thing, which was go to the post
office and get the forwarding address. And he found the witness, and he
talked to him and the guy was just as good as he had ever been. This is
the little joker in the thing-the guy was still a terrific witness for the
prosecution and he was sure, he was ready to come, he was still mad. But
Matt’s client doesn’t want to plead and there is some defense, so they go
to court. And the government gets up and says, “Your honor, we’re not
ready, because our witness has disappeared-and it’s a one-witness
robbery.”· So then Matt doesn’t say anything, or maybe did even say,
“Object to a continuance” and said, “we’re here, we have our witnesses,”
I’m not sure about that. But anyway, he didn’t say anything about the
person being available. So the judge says to the prosecutor, “I’m really
tired of this, I don’t have another case ready to go to trial because of this …
why didn’t you come in and tell me before?” “If you can’t get this witness
in tomorrow, I’m dismissing this case.” So the whole thing, you’re
imagining it, right? Oh … Gruesome, gruesome! So, the next morning he
comes in and says, “We have the witness, and not only that, your honor,
– 17 –
but Mr. Zwerling was there and he just sat here and lied to the court.”
And the judge goes absolutely ballistic and says, “I’m removing you from
the case, this is the most unethical behavior” and then he forced Jim
Duggan, a young attorney that was helping Matt, to go to trial just on the
spot and he’s not ready. It was Matt’s first case and this guy is just like …
Judge Cordell: He’s in training …
Professor Babcock: … forces him to go to trial… summons me over. .. yells and screams at
me …
Judge ~ordell: Is he yelling and screaming in chambers, or … ?
Professor Babcock: In chambers, right. And “this is totally … ,” and “what am I doing?,” and
“what am I running?,” and “how could I…,” and so I tried …
Judge Cordell: Was Matt in the room with you?
Professor Babcock: Yeah, Matt is there too. And Jim, the young lawyer that had to try it.
Maybe not the prosecutor, I don’t know. Maybe the prosecutor. And this
is one of the better judges. The bench I told you about, that bench was just
full of hacks. And you might not mind so much with a hack, but he was
really considered to be an okay guy. But he’s screaming and he’s
screaming and I just said, “Well, your honor, just imagine how the client
would have felt if Matt raises his hand and says, ‘Oh, we know where he
is, bring him right in.”‘
Judge Cordell: Bring in the chief witness against my client?
Professor Babcock: And I said, “If it had been a paid lawyer, would you be equally angry? Is
it just because it’s a public defender?” And he just wouldn’t engage with
– 18 –
me, he just, “How can you say that? Lied to court. Officer of the Court.
You’re a public official.”
Judge Cordell: Did he lie?
Professor Babcock: He didn’t lie. He just didn’t say anything. But he might have had to lie,
I’m not even sure. I use that problem. I made it into a problem case for
teaching ethics.
Judge Cordell: It’s very interesting, what is required …
Professor Babcock: Especially, see, it didn’t do any good. But then I sent somebody over
to … There was a guy in our office, Pat Hickey, who had a special
relationship with this judge because they were both from the same town
(Walla Walla, Washington), and they were both Catholic … And Pat went
over and tried to explain to him about defense ethics but the judge just
wouldn’t hear any of this … “I’m not ever going to trust another public
defender” and “I just can’t believe it” and “I can’t” … And see, we weren’t
apologizing; we were not going to discipline Matt. And then we took it to
our Board and had them write a letter to the judge, being as conciliatory as
we could be but not budging on the basic thing that Matt did the right
thing. And then about three days later, I’m assigned to go to trial in this
horrible Cockerham case.
Judge Cordell: A different judge, though?
Professor Babcock: This judge!
Judge Cordell: Same judge?
Professor Babcock: Judge Jones!
– 19 –
Judge Cordell: That’s right.
Professor Babcock: Oh my god. William B. Jones. This very judge who thinks I’m unethical
and not worthy of running the public defender and leading all the troops
into the wrong paths and the whole business. So he was just … and you
know how it is, if somebody in a position of authority is really convinced
that you’re wrong, you begin to wonder whether you’re right and they’re
asking … I don’t know whether you would or not, but I do.
Judge Cordell: Well, it’s an interesting issue … You were just talking again about the
situation with Matt and then you were getting assigned the case and then
the judge is furious with you now.
Professor Babcock: Right. He’s already furious with me and then I’m sent out to trial and then
it’s this very difficult fraught case where just to listen to the facts of the
case, just the testimony is all so, in a way, repellant. And you don’t really
want to think that anybody could do this, but he did. And the insanity
defense is such a tough defense in a situation like that because in a way,
the more insane the act, the less chance you have to win.
Judge Cordell: That’s right.
Professor Babcock: And the other thing was I just really didn’t like the guy. It wasn’t
revulsion at what he did, although I wouldn’t be human if I didn’t have
some of that.
Judge Cordell: He was unappealing?
Professor Babcock: He was just really unappealing. And he felt so sorry for himself, and he
had so little other feeling. And he was eager, he was always giving me
– 20 –
presents. He would weave together cigarette packs and made a whole
pocketbook out of Pall Mall packs woven together.
Judge Cordell: Were you a smoker back then?
Professor Babcock: I was, but not Pall Malls. But I used to carry them and Koo ls, that’s what
you carried to people …
Judge Cordell: You smoked Koo ls?
Professor Babcock: I didn’t smoke them. I took them to my clients.
Judge Cordell: Really?
Professor Babcock: The few that were in jail, that’s what they liked.
Judge Cordell: Well, this guy was in, right?
Professor Babcock: This guy couldn’t get out.
Judge Cordell: Yeah, You couldn’t get this guy out.
Professor Babcock: No, no, I got most of them out, but not him.
Judge Cordell: So he gave you gifts?
Professor Babcock: Yes, little boxes made out of matchsticks and things like that.
Judge Cordell: So, public defender. .. anything more? Give us a sense of the office, the
camaraderie, the ups and downs. What ever happened to Matt, Matt
Zwerling.
Professor Babcock: Matt Zwerling? See, that’s the thing. He just never really wanted to try
another case. He came out here and worked on this-remember, this is the
60s-and he worked on this grand jury project with the National Lawyer’s
Guild. He taught at USF for a while and he was a very good teacher, very
– 21 –
successful and now he runs the Sixth District Appellate Project and does
criminal appeals. Anyway, I really loved being a public defender.
Judge Cordell: It sounds like you thrived on the pressure.
Professor Babcock: I did, I really did.
Judge Cordell: It didn’t drive you out as it did Matt.
Professor Babcock: No; and I never burned out. I saw this opportunity at Stanford and knew
that it wasn’t always going to be this way- available – and I got divorced
so that my dream was not going to be possible.
Judge Cordell: What do you mean your dream?
Professor Babcock: Remember, I was going to set up my own law firm with Addie. We were
going to have a law firm. And I just didn’t feel like I could do that
because I was feeling so hurt, certainly not with Addie but with anybody.
I also really did think, I’ve been doing this for four years and its pretty
intense and I thought that it would be good for Norm, if Norm was ever
going to be director that I should give him a chance.
Judge Cordell: So, we’re going to wrap up the public defender and th~n wrap up this
session. So I’d like you to think about, and if you don’t have the answer
today, we can do it next session. I want to know the best moment, highest
point, your being in the public defenders and the worst. And then we’ll
just kind of wrap it up.
Professor Babcock: Okay. The worst may really have been that Cockerham, the whole thing
of not being able to take care of Matt and not. .. I felt inadequate. If I had
been an older man, then I might have been able to protect and take care of
– 22 –
Matt better. The Cockerham case, to have this combination of not really
liking the client and not being able to come to grips with what he did even
though I believed in the insanity defense, and then trying the case with that
awful looking jury.
My favorite moment is the story I always tell that really
encapsulates my PDS experience and we can end on this one. It is the
Geraldine story. I represented a woman named Geraldine Gravette. She
was charged with her third heroin possession under the Harrison Act. For
the first conviction, it was five years, no probation, no parole. For the
second offense it was ten years. Twenty years for the third offense. She
was forty years old. She had already spent fifteen years of her adult life in
jail. She was this big, tall, kind of awkward-looking woman. She wasn’t
really pretty or anything.*
Judge Cordell: Black? Was she Black?
Professor Babcock: Black, Black. All my clients were Black.
Judge Cordell: Except for Mr. Cockerham.
Professor Babcock: James Cockerham. And another guy, I had a young guy, once who stole a
picture out of the National Gallery of Art.
Judge Cordell: Did you get him off?
Professor Babcock: I had to plead him. He was caught with a picture, LaDoris! [laughter]
Judge Cordell: [laughter] Well, the other guy had the transmission on his shoulder.
* Barbara Allen Babcock, Defending the Guilty, 32 Cleveland State Law Rev. 175 (1984) (written version of the
Geraldine story).
– 23 –
Professor Babcock: [laughter] Well anyway, there was no defense in Geraldine’s case. Her
story was that she would get involved with a man who was a seller. The
few years she hadn’t been in prison she had this terrible heroin habit, and
so she’d get involved with a man and sell for him to support her own
habit. So she was caught with a lot of heroin. She was in an apartment
where a lot of heroin was. And she was charged. And it was her third.
The custom, in these days, if it was a federal drug offense (since repealed),
was to let people plead (if there was no violence and no actual sale
involved) to a D.C. offense that didn’t carry the mandatory twenty years
without probation or parole. And the prosecutor said to me, literally, that
he wanted to try a case against me, that I was supposed to be a great trial
lawyer. He wanted to try a case against me, so he wouldn’t give me a
plea. And I said, “I’ 11 give the case to somebody else in the office, then.”
And he said he wouldn’t give the plea to anybody, the standard plea. So I
was just in a rage against this guy, just totally in a rage. And so I got
together-there wasn’t any real defense-but I got together this insanity
defense. So I sent her to St. Elizabeth’s hospital, which was the public
mental hospital and the doctors came back that she had a mental illness.
And it was right there in the Diagnostic and Statistical Manual. It was
called “inadequate personality.” I’m not sure it’s there anymore.
Judge Cordell: Aren’t we all inadequate?
Professor Babcock: No, not like Geraldine. And I said to these doctors who were really
inadequate themselves a little bit, “What are the symptoms of this illness?”
– 24-
And they said “Well, she just can’t cope with anything, she’s just very
inadequate.” But the fact is that she had grown up … she didn’t even know
who her mother was … she had just grown up on the streets and nobody
had ever loved her or taken care of her. She didn’t have anybody and a lot
of these people who become addicts at a very early age, they don’t form …
their personalities don’t form.
Judge Cordell: Arrested development.
Professor Babcock: So that’s it. We’re going with the insanity defense. And the most, the
first break that Geraldine ever got in her life. Guess who we got sent out
in trial in front of?
Judge Cordell: Judge Bryant.
Professor Babcock: Judge Bryant! Judge Bryant! The only compassionate judge, and he is the
one who is going to have to sentence her to twenty years-no choice-if
she loses. So I was tremendously relieved. I actually thought, in order to
avoid giving her twenty years that he would give me a judgment of
acquittal after the government’s case at the end of all the evidence. So the
government thinks we’re going to spend … I hated this prosecutor, I can
see his face right now-snide, Harvard type, see) … He thinks we’re going
to spend a day with motions in limine and choosing a jury so I put the first
twelve in the box and we’re going to do voir dire on them and I just say,
“the defense is satisfied … I’ll take them … I’ll take the twelve.”
Judge Cordell: Now why did you do this now?
Professor Babcock: Because I think Judge Bryant is going to give me a directed verdict.
– 25 –
Judge Cordell: So it doesn’t matter whose in the box.
Professor Babcock: It doesn’t matter whose in the box and it’s going to throw the prosecutor
totally off and make him hustle around.
Judge Cordell: Had you ever done this before?
Professor Babcock: Never! No, I’d never do it again, although Edward Bennett Williams used
to say he didn’t really believe in all this stuff around jury selection, the
extended voir dire and investigative services … and the whole business …
Judge Cordell: Trial consultants …
Professor Babcock: He would say, “Put the first twelve in the box and you’ll do fine-go with
your case.” So I put the first twelve in the box. And it did, it threw the
prosecutor totally off and he just really couldn’t believe it. But, the trial
went on for days-ten days.
Judge Cordell: So did he end up getting some jurors off?
Professor Babcock: No, the government’s never going to strike anybody.
Judge Cordell: So that was it?
Professor Babcock: That was it. We had the jury within ten minutes. So they were off and
running and he keeps trying … It’s an extremely contentious and hard
fought case because he keeps trying to show … I got Judge Bryant to rule
about something- I can’t remember exactly how they did this since it
was an insanity defense – that we would stipulate that she was found
with heroin. But the prosecutor wanted to bring out all about how much it
was and he wanted to imply that she had sold or had prior convictions for
– 26 –
selling. And so he kept treading over there into that area and I just got
angrier and angrier. So I really did, I was such a …
Judge Cordell: You were such a … ?
Professor Babcock: I was so … passionate and so sure that I was right and I just had no …
Judge Cordell: No fear?
Professor Babcock: No fear. He tried to come up and speak to me at a break and I said, “Get
away from me you … [ expletive deleted], I don’t talk to you.” [laughter]
And then I can’t even believe I said such a thing. And another time I said
to him at a break, “If you try one more time to ask that question, I am
going to refer you to the bar discipline committee. The judge has ruled
that question out, you’re trying to get it in-if you try one more time … ”
And so the jury comes back in, the judge comes back in and he says, “May
we approach the bench.” And he said, “Your honor, she threatened me.”
And Judge Bryant says, “She did? What did she say?” [laughter] And so
he just sort of hummed and hawed.
But anyway it was a very thin insanity defense. And I grew to
truly hate that jury. It was the worst looking jury I ever saw and right in
the middle of it was this woman, juror number six, who had her hair cut
like a bowl and she wore no makeup and she had these real thin lips. And
everything I said-and I showed Geraldine’s terrible childhood and her
terrible life-and this woman just kept rolling her eyes and shaking her
head and I just thought “oh my god, I just shouldn’t have to live with
these people-I’m never going to put the first twelve people in again.” I
– 27 –
mean it’s the worst looking jury I ever saw. And totally unsympathetic
looking. This was a White woman; there were a lot of Black people on the
jury too. Then we make closing arguments and I make a great closing
argument and the judge does not grant …
Judge Cordell: The motion for acquittal?
Professor Babcock: … The judgment for acquittal. It’s so much harder to do afterwards, the
judgment not withstanding the verdict, we used to call it. I went back to
chambers; I never did this with anybody else but Judge Bryant, I said,
“Judge, you’re going to be sorry, you’re going to be sorry. You’re either
going to be sentencing her to twenty years or you’re going to have to do
this JNOV.”
Judge Cordell: Wait a minute, this is after the jury … ?
Professor Babcock: The jury’s out, they’ve got the case.
Judge Cordell: And so you go and have this conversation … was the prosecutor present?
Professor Babcock: No, no, no. This is just me and the judge, see, this was just a little chitchat. I don’t recommend this. I wouldn’t do it with anybody else. And he
said, “You just wait and see. You just wait and see.”
Judge Cordell: Let me go back though. So you argued inadequate personality disorder …
Professor Babcock: Insanity defense. I didn’t call it inadequate personality, I didn’t stretch
that. I said, mental disease that is in … that is recognized … and a person
who never … And I talked about the whole thing about addiction and about
never having any stability.
Judge Cordell: Did your client testify?
– 28 –
Professor Babcock: No, no. And she really couldn’t have, I think, because …
Judge Cordell: She was inadequate, she couldn’t ..
Professor Babcock: [laughter]
Judge Cordell: … couldn’t get it together.
Professor Babcock: Right. So the jury is out for three days.
Judge Cordell: Three days?
Professor Babcock: Three days! And I kept dropping in on Judge Bryant while I’m out
arguing motions in other courtrooms: “I told you so.” So they come back
in three days and they look a little harried but they come in and say, “not
guilty by reason of insanity.” And I think I never felt so happy.
Judge Cordell: What did Geraldine do?
Professor Babcock: And LaDoris … Geraldine …
Judge Cordell: What did she do?
Professor Babcock: burst into tears and throws her arms around me, and she says, “I’m so
happy for you!” [laughter]
Judge Cordell: [laughter]
Professor Babcock: And Judge Bryant just nearly fell off the bench laughing at that. She’s the
one that’s facing the twenty years … She’s not so inadequate, you know,
actually. And this woman, the Germanic woman, came over …
Judge Cordell: Juror number six.
Professor Babcock: Juror number six.
Judge Cordell: The one you can’t stand.
– 29 –
Professor Babcock: The one I can’t stand and she said, “Well, it took me three days. We went
out 11-1 for conviction, but I brought them around.” And this whole time
she was shaking her head and rolling her eyes it was all out of sympathy.
Judge Cordell: It was juror number six.
Professor Babcock: It was juror number six and she was just feeling when I was telling. And
she was a Washington native and so when I was talking about this poor
kid growing up like this, she had a deep sympathy for it.
Judge Cordell: Oh my god.
Professor Babcock: Isn’t that something!
Judge Cordell: Oh my god, great story. Well, we’re going to end this session. And next
session if you have anything more public defender stories, that’s great but
then we’ll talk about the women’s movement. You and the women’s
movement.
Professor Babcock: The women’s movement and me, right, okay, good.
End of Tape Four
– 30 –
Judge Cordell: So, today is February the 15th. This is our fifth session. This is LaDoris
Cordell; I’m interviewing Barbara Babcock for the oral history and today
we’re going to take up the subject of Barbara Babcock and the women’s
movement.
Professor Babcock: The first thing that I want to say is that I was totally unconscious all the
way through college and law school. Even though looking back I have
many stories about being the object of discrimination, I never thought of it
as discrimination at the time.
Judge Cordell: But what did you think of when you thought of. .. there were no other
women?
Professor Babcock: And worse than that, at law school people, men, male people, really did
say, “you’re taking up a man’s place.” People wanted to discuss that with
you about how you were taking up a man’s place.
Judge Cordell: Did you have those discussions?
Professor Babcock: I did. And those people, the men, would have to support wives and
children. And of course, at Yale, they do have this wonderful way of just
making you feel as though you have been chosen and selected and forever
you have been blessed and touched. So, here’s a man that could have been
blessed and touched in this way and you’re taking his place and you’re not
going to support a family and god knows what you’re going to do (get
married and have children?). But that was the kind of thing, and you
know … I can tell you lots of stories about rampant discrimination, but we
hadn’t learned to see it that way. To me, the experience was the same as
– 1 –
other biological or god-given deficits, like not being smart enough or
pretty enough … and being female was just one of those so it wasn’t
anything that you …
Judge Cordell: Did you take it personally?
Professor Babcock: No, you just accept that it’s going to be that way and then I’ve always had
this feeling that the rules, that I could bend the rules-that the rules didn’t
necessarily apply to me. That people who had never taken a woman, that
they would nevertheless take me without fundamentally changing their
rule.
Judge Cordell: And why’s that? Where’s that come from?
Professor Babcock: See, you ask me these deep questions, and I don’t know. Part of it is …
and I see it sometimes in my students, it’s partly the American Dream, that
if you work hard enough, if you really want it, then you can get it,
anything, and it doesn’t matter that they’ve never taken a woman or even
that you’re not good enough. If you really work hard enough and you
really want it, then you can get it.
Judge Cordell: Now, you really believed that?
Professor Babcock: I guess I did.
Judge Cordell: Do you still believe that?
Professor Babcock: Well, I don’t know. I see people for whom it’s not true, and maybe it’s
not true anymore … and I might have just been on this cusp where it was
true because we were about to break through. For me, for most of my life,
its been this huge advantage to be a woman, see, because I had been this
– 2 –
real recipient of affirmative action in the sense that here, they want to do
something at every step, they want to do something, and here I am. I’m
qualified, and I’m applying. I mean, I’m not waiting to be discovered.
But I was just totally unconscious and I always tell these stories of living
with Eleanor Holmes Norton, Eleanor Holmes as she was known then.
And so we had really the whole civil rights movement coming right
through-SNCC, and the leadership conference, and everybody coming
through …
Judge Cordell: This is where you were living?
Professor Babcock: Living in New Haven. And the civil rights movement was going on in
’63. It’s still early, but people did go down to the South in the summer of
’62 and ’63. But it never crossed our minds as we marched and sang and
really to some degree, I don’t want to overemphasize whatever I did for
the movement because I really was more of a sympathetic observer. But I
was a close observer. You know it’s so wild because everybody who was
alive in the sixties and knew anybody says they were in the movement.
But I wasn’t. But I was close to it and though I never risked anything, I
was really interested and I knew a lot of people. But it never did occur to
me that there was a parallel to women’s situation. It just didn’t even cross
my mind. And then it was really the year I graduated from law school,
Gideon came down and Betty Freidan wrote The Feminine Mystique and
people were all of a sudden talking about it and saying, what are you
going to do? How are you going to have children and have a career and it
– 3 –
became this huge topic that people were discussing. I was just thinking
the other day when I was interviewed to be the head of the Public
Defender Service in D.C., it was of course an all White board of men, and
they were saying to me: “How are you going to do this job? Are you
planning to have children? You’ve just got married. How can you
possibly have children?” And it didn’t even cross my mind that there was
something wrong with that.
Judge Cordell: Being asked the question.
Professor Babcock: Being asked the question. I didn’t say, as I would today, “would you ask a
man that?” Men are fathers or parents too. Today no one would ask that
question. But, at the time, I thought, “how am I going to convince them?”
Judge Cordell: How did you convince them? What did you say?
Professor Babcock: I just said … I’m not planning to have children. This is what I want to do
now. This is what I’m doing now. I’m not thinking about having children
and god knows what else. [laughter] I wanted the job so bad that I
probably would have told them what kind of birth control we used
[laughter] if they had asked. I promised not to have any children.
Sometimes when I look back on it and just see the things that happened …
all-out blatant discrimination and you talk about sexual harassment-.
people just chasing you around the desk-it was just something that
happened. But I still. never put two and two together or thought about it as
discrimination. And more often it happened that people were … that being
a woman was an advantage. It made you stand out, it made you different.
– 4 –
Judge Cordell:
Maybe for the wrong reason-that people thought women weren’t
capable-and then when you came along and you really were capable,
then they said “oh, wow.” I mean, you must know about this, this happens
to you all the time, I’m sure, that people feel good about giving you a
chance and, so, I just went ahead.
Which is why, I’m sure, one of the major reasons why you succeeded as
you have. If you stop to think about every single barrier and all the stuff
you had to deal with, there are many people in the universe who would
say, “Forget it. I’m not going through this route.”
Professor Babcock: Yeah.
Judge Cordell: So if you put that out, it’s not even a part of what you’re dealing with, and
you go.
Professor Babcock: No, you’re just unaware of it. But it makes you seem kind of stupid and
shallow, you know. [laughter]
Judge Cordell: Which you’re not.
Professor Babcock: At any rate, at one point I began to get, to be aware of the movement-the
women’s movement-and how it was spinning off. But I think I just truly
marked the beginning of it-my consciousness-to these students coming
to me and asking me to teach this course.
Judge Cordell: This is when you were still with the public defender?
Professor Babcock: Still running the public defender, see. When I look back on it, I just can’t
believe I did what I did, but I was very energetic. The students, and I
can’t remember which way it happened. I think I taught it at Georgetown
– 5 –
first and then at Yale, but it might have been vice versa. It still was this
course the students had designed and they had said, “here we are” ( this
was the students at Yale). The students at Yale and the students at
Georgetown, they were all young women students and they just came to
law school and were just stunned and shocked at the blatant discrimination
that they observed: That women were just not in the curriculum. That
there was no interest in the special problems that women faced. And so
they were just so … they got these courses started and they put together
these materials … it was just kind of amazing to me because it had only
been a decade since I had graduated, or less than that.
Judge Cordell: So the year we’re talking about is … ?
Professor Babcock: ’70, ’71, ’72. And the students put together materials in all areas of the
law and I went up and I taught it and met all these wonderful, wonderful
young women and I saw, immediately, that this is different. Something is
happening here. This is just, less than a generation later, these women are
completely different than we were in law school. And I really saw that
they were going to change everything. So I give myself some credit there.
I got on the bandwagon. I really saw that this was just a huge thing. What
happened is I taught the course at Yale and there was a young woman who
had been instrumental in getting me hired there and getting the course
started named Ann Freedman, who’s now a professor at Rutgers, Camden,
where she’s been for some time. And she and Dru Ramey and Janice
Cooper were in the class, and a women named Barbara Brown, and a
– 6 –
Judge Cordell:
women named Lenore Weitzman, who wasn’t a law student but wrote a
book on divorce. But there were a lot of really neat women … Nancy
Gertner, who’s now a district court judge in Boston … And these women
at Yale were just amazing to me. I really can’t get across to you. They
were so different and it had been less than a generation.
And you didn’t see them as threatening? You didn’t see them as sort of
bizarre?
Professor Babcock: No, I saw them as wonderful. No, no. I saw them as really, really
wonderful – as the future. And I give myself credit for that. I was no
dinosaur. I never had the attitude like “You young people don’t know
what it’s going to be li~e,” or any sense at all that these young women
who were coming in and demanding things should just put their heads
down and struggle through the way we did. In fact, I was charmed. I
mean, who would ever think of just demanding that things change because
they’re not fair to you … to you!? You know, it would be one thing to
demand fairness for other people, but that you would just say “wait a
minute.” No, I loved it.
Judge Cordell: So did you have long discussions with them, or this was not something
you discussed? I mean, you got it and then …
Professor Babcock: I got it and then I taught it, see, but they were as much teaching me as I
was teaching them, but I was providing… The law school was paying a
lot of money for me to fly up every week and have this class. But even
from the beginning, the downside of it even from the beginning, is it just
– 7 –
wasn’t what I was interested in, see. It didn’t have much of a relationship
to criminal procedure, which was what I’ve always been most interested
m.
Judge Cordell: So why did you do it?
Professor Babcock: I really felt like I had to do it, see, I didn’t think I had a choice.
Judge Cordell: Because?
Professor Babcock: Because there weren’t very many women at that point who had the
credentials to get hired. That’s why the students came to me. I’m sure
there were other people that they might have preferred who knew
something, but I was somebody who had the credentials that could be
hired. Now, I’m writing this book about Clara Foltz and all the things I’ve
learned as a matter of duty, when I wasn’t really interested, are coming
back to serve me very well. .
But I did love teaching students and meeting the students and
getting this feeling of being part of something-part of something big that
was happening. And then there was this woman, Ann Freedman, and she
was very helpful and very part of this new kind of woman, this new kind
of student. So I asked her what she was planning to do when she
graduated, expecting that she would say clerk-these days that’s what
everybody does. But she said she didn’t know, but what she really wanted
to do was write a book. There was no book on women in the law. And
this is the kind of thing looking back on it I can’t even believe, but I
said … In fact I’ll have to give you this article that Linda Kerber, who’s a
– 8 –
• Kerber, book review
really terrific historian, wrote about the early texts on sex discrimination
and how they came about, and it’s a really good article and tells some of
this story … • But the story is, I said to Ann, what did she want to do, and
Ann said she wanted to write a text for this course, and I’m not knowing
anything and not even in academia at this point. This is so much like you
LaDoris, this is the kind of thing you would do. I said, “Well, you want to
write a book? I’ll write one with you. I’ll sponsor it. I’ll go to my friend
Eli Evans who’s at The Carnegie Foundation. And we’ll get some money
and set it up and you can write the book and I’ll get Eleanor and we’ll be a
little board for the book and then we’ll have this book that’s out there.”
It’s absolutely the right instinct that I thought that this young woman
who’s a law student, just barely graduating, to just put it together and I
would in my evenings, just sort of go over the materials and publish it. I
can’t even imagine. But anyway, it turned into sort of. .. It turned into sort
of a nightmare, really, and I’ll show you the book. We did publish this
book, Sex Discrimination and the Law; it was one of the first books, not
the first one.
It should have been the first one, but it turned out that all of the
things that are wrong with the so-called feminist method came into play in
this book because we joined … Ann wanted to bring on this other woman,
Susan Ross, who now teaches at Georgetown in this clinical program. So
it was Susan Ross and Eleanor and Ann and me, four co-authors, and we
– 9 –
got a contract with Little Brown and they were very eager to publish it.
But at the time none of us were in academia, all of us had other full-time
jobs. Ann was the only person working on it full-time. She was full of
ideas, great, brilliant ideas, but actually produ.cing pages was not her
strong suit and she was the only person who didn’t have a full-time job.
And the feminist method in which you don’t fire anybody and you never
say “this is shit, and you’ve just done a terrible job, and let’s start over.”
But you meet and discuss it and go over and then everybody had
everything. Everybody had every single thing: divorces and births and
recovered memories and God knows what. And it just went on. And
Eleanor at this point was running the Human Rights Commission in New
York City, so she had no time at all, but we would go up to New York and
meet with her like from 6-8 at some point. Then she would always be
angry at herself that she didn’t have time to do this … Oh, it was just a
nightmare, it was a total nightmare.
Judge Cordell: How long did this nightmare go on?
Professor Babcock: Oh, I can’t even tell you how long it went on. I’ll show you the book.
Shall I show you the book?
Judge Cordell: Sure.
Professor Babcock: It’s a beautiful book.
– 10 –
Judge Cordell: Barbara has now retrieved the book which is entitled Sex Discrimination
and the Law: Causes and Remedies, and the authors are Babcock,
Freedman, Norton, and Ross:
Professor Babcock: Right, that’s the special edition they gave us because for the first edition
they give you this beautiful thing; and it’s really quite a book. What’s the
year?
Judge Cordell: 1975.
Professor Babcock: 1975. And see, I came to Stanford with the book under way. But then I
was still the only person that had a regular academic job. But anyway, we
did get it out, but it was just pain and suffering to get it out.
Judge Cordell: Actually in the copyright, I don’t know why, it starts back it says 73, 74,
75. But the book actually says 75.
Professor Babcock: I think those are probably earlier sets of materials that we put out. ..
Meanwhile, we held this big conference at Yale, and then Ruth Ginsberg
came and then Herma Kay came and they saw this tremendous enthusiasm
for the book, and so they got together and put out a book before we did.
They were just really efficient. They were both academics and one was at
Columbia and one was at Boalt, and they put out a book. But their book
has never been, I must say, as good as ours was. There were a number of
editions after this. Wendy Williams came on to it and various people over
the years came on to it. But my name was always first being a B-A-B-C …
• Babcock, Freedman, Norton and Ross, Sex Discrimination and the Law; Causes and Remedies
– 11 –
Even after I left the field, my name continued to be used in it. So that’s it.
So I started doing this book and teaching this course, though it wasn’t me.
Judge Cordell: It wasn’t your passion.
Professor Babcock: It really wasn’t my passion; and I always had this feeling of “I know I’ve
got to do this, this is my sacrifice for the movement,” but I always
believed in the movement. And I really saw from the beginning that this
was it, that women entering the legal profession and really pushing to
change it so that it would accommodate their lives, that women could
change everything. So I’ve always really been for it and willing to
sacrifice. But I can’t really … I don’t really push my sacrifice because the
women’s movement really got me where I am today. I was really paid
back for giving up what I really was interested in at various points. But,
see, I’m not sure that anybody looking at it from the outside would
recognize what I’m saying or would rather think that I got a lot more out
of the women’s movement than I gave. But I don’t really feel that way. I
think it’s been about even. It was a sacrifice for me. I always felt like it
was a sacrifice because … I think it is partly because my instincts are
really for the underdog and women are not really underdogs in this classic
Judge Cordell:
way.
There’s also another issue. For me the women’s movement has not been a
top priority and that is primarily because when it started it really was not
inclusive of women of color. There wasn’t this real outreach. It was
– 12 –
perceived by those of us in the African American community as being a
White women’s thing. So I don’t know, did that ever. ..
Professor Babcock: No, that’s why Eleanor really played this role, see, because she got right
into it, the women’s movement, but she was one of the few real leaders in
the civil rights movement who saw right away that the women’s
movement was important and was the same movement.
Judge Cordell: Right. What I’m saying is that it was perceived, I think, by women of
color as being an important thing, but there was also, I felt, an exclusion,
we were excluded from it. We were not embraced. I didn’t get that sense,
so that it almost started to take on a sense of it not being relevant to the
struggles that we were dealing with just in terms of race.
Professor Babcock: Well, that was a lot of what was going on in the beginning, a lot of things
like that. And there would be meetings about that and that it was middleclass and that it was self-promoting and that you’re trying to get to be
partners in law firms and so what. I didn’t really experience it that wayparticularly because the students … Maybe I’m wrong, but it seemed to me
right from the beginning, though this was discussed, in some of our first
classes. We had African American women who said this, that they didn’t
feel comfortable. At Yale, the women had just set up this Women in Law
thing, “Women of Yale Law School” or something like that, and they got
a little office set up for the student affairs and it was right next to BLSA,
the black students, and there was just this immediate struggle between
them and somebody put on the … the women were so upset because
– 13 –
somebody put on the door of BLSA, “The place for real people with real
problems.” That was it.
But none of that really touched me very much, that struggle. But I
was aware of it as the movement was getting together. It was hard at the
beginning because when you’re just starting and you don’t have the
numbers, the way to get along is not to cause trouble. You can get really
far by not causing trouble.
And the women, it seemed as though the women were always
doing things like burning bras. I don’t know how many bras were actually
burned. Demonstrating at the Miss America contest and things like that–
that just made me feel queasy. It also was so consuming of other issues. If
you were a feminist, that’s what people wanted to hear about. Agai1_1, it
felt a little bit like being Black must be whenever you get into a
relationship at some point people have to tell you how they feel, how
many Black friends they have and how they feel, and they know they’re
really racist, but they don’t really think they are. So you’ve got to just go
through this. And the same thing with being a feminist- all of a sudden,
you sort of become a designated minority and all the men you deal with
have to explain how they’re really sensitive or they’re not really sensitive
or they can’t be or their mothers were or blah, blah. [laughter] And it just
wasn’t what I wanted to talk about.
But here I am at the same time, here I taught this brand-new course
and it’s a hot thing and I’ve got a contract with Little Brown to write a
– 14 –
book about it, and women are pouring in to law school, pouring into law
school, and making these demands and there were no teachers to teach
them. And then it was just like every school in the country wanted to hire
me. And here I was just right in the public defender in DC, happy as a
clam, but I did think that I wanted to teach some day and I just thought it
would be a good thing, that I should seize this moment because I knew
that it would not last.
Judge Cordell: And the moment being to come to Stanford.
Professor Babcock: The moment to enter academia at the highest possible level. You should
always teach at the best school that you can.
Judge Cordell: Why is that?
Professor Babcock: Because you get better students. You have really good students, and
everything in teaching is having really good students. And you get
noticed. You can have more effect. You don’t have to teach so many
courses, get paid more, all those reasons. So it was, it was just
completely … my connection. As I always say, it wasn’t the murder cases
I tried. I bet there was not a woman in the country that had defended
murder cases like I had, but that’s not what they were interested in, let me
tell you that. It was these little courses in Women in the Law that I had
taught, and the fact that I had gone to Yale, which is the seed bed of
academics.
Judge Cordell: Before we transition over to the law school, talk to me about children. You
have a step-daughter.
– 15 –
Professor Babcock: Right.
Judge Cordell: That’s the extent in terms of children, so talk to me about you and
children.
Professor Babcock: That’s like this issue because in some ways I have become this role model.
We didn’t talk about role models until the 70s, my dear, that’s something
new. I think that came out of the women’s movement this role model
idea.
Judge Cordell: Do you have a problem with the role model, the term, or does it bother
you?
Professor Babcock: No, role model doesn’t bother me. Token doesn’t bother me. I’m just
willing to do it all. I’m happy to be those things. But I’m better as a token
than a role model, because I didn’t ever really … It’s the same thing as the
way I never faced discrimination, I never really faced the difficulties of.
trying to have a big career and also have children and raise children, and
those are real difficulties that women are doing now. The way I did it was
the way I do most things-and I don’t necessarily advise it-but I just
didn’t think about it one way or another.
Judge Cordell: Think about it?
Professor Babcock: Having children or not having children.
Judge Cordell: There was no pressure on you from mom, from parents.
Professor Babcock: No, God, no. I think my mother always wished she didn’t have children.
Judge Cordell: No?
– 16 –
Professor Babcock: Not really, just me. She’s glad she had me, but she was tied down by
having children to this life that she had. She couldn’t make a living on her
own. But no, she never did. My parents, neither one of them, ever
suggested to me that I ought to do or refrain from anything that I ever did.
I longed for somebody to tell me what to do, but it’s too late, nobody ever
has. I never got into this thing of saying, which I’ve heard women say
now, “I don’t want to have children.” Some women even say “I don’t
think people should have children, there are too many children. If you
want to have children, you should adopt them. All these children that
aren’t being taken care of. And certainly to have a lot of children is just
indecent, and bad to the planet.”
Judge Cordell: It’s like driving a Hummer.
Professor Babcock: Yeah, that’s what people say. And I would never say that. And I heard in
the movement there’s always been a lot of talk because that’s a central
question. I study nineteenth-century women and it was the same for the
earliest women lawyers, people said “women being lawyers are going to
destroy the family. You can’t be a lawyer and raise children.” The choice
was having a career OR having a family. From my first days in the
movement I remember hearing women say they would not have children
because they wanted to dedicate themselves to the cause.
Judge Cordell: How did that strike you?
Professor Babcock: It just struck me, “why say that?” It is just going to get people upset and
send chills through people. I would never say it because it was really
– 17 –
considered unnatural, and probably still is for a woman to say she doesn’t
want to have children.
Judge Cordell: You think?
Professor Babcock: Yeah. That people would think there’s something wrong with you,
something peculiar about you. So I never said anything. But my first
husband didn’t want to have children. So it wasn’t really an issue. But I
always thought that later on after I had tried a few cases and by the time I
settled down, maybe in my mid-thirties, maybe I’ll have a child or two.
And I like children. In fact I love little children and big children, but those
years in between I would just as soon not deal with.
Judge Cordell: It can be nightmare.
Professor Babcock: So it just didn’t come up, really. For a long while, I wasn’t married. But I
wasn’t one of those people who thought I’ll have a child even though I’m
not married. And then Tom, my husband, already had a child and he
would have been willing to have another, ifl wanted to, but I didn’t. I
think at some point I must have decided I really didn’t want to.
Judge Cordell: Do you have any regrets?
Professor Babcock: You know, I really don’t, but see I’ve got this little grandchild, this
precious grandchild without the pains of childbirth, though I sometimes
think that it would be even more thrilling if I could see a little of myself in
her.
Judge Cordell: What does she call you?
Professor Babcock: Granny B. See she’s got three grandmothers. So that’s that story.
– 18 –
Judge Cordell: Let me just make one observation. It makes me a little sad in that
extraordinary women like you indeed have not had children to pass
whatever the hell these genes are you have. From what I’ve heard, you’re
unique, this whole notion of how you look at the world.· So a part of me
just gets a little sad that there isn’t this son or daughter who’s got this …
Professor Babcock: But, see, I think the son or daughter with your own genes might not tum
Judge Cordell:
out. See, I think of you as one of my children. I have generations of people
that are better in some ways than my children would be since you always
screw them up one way or another. So I really don’t miss it, the actual…
It’s one way in which I’ve had a lot of the pleasures of motherhood
without the pains. And I think I would have been a great mother for a
really smart kid, but I don’t know how I would have been if the kid was a
disappointment, which you know they could be. There are a lot of genes in
there.
Absolutely. So as a beneficiary of the women’s movement because of
timing, opportunity, whatever, you’re at Stanford Law School. Here you
are, you’re in academia. Does the women’s movement carry you any
further?
Professor Babcock: Oh, yes.
Judge Cordell: And how so? Because I think that is the time about when I met you.
Professor Babcock: Right.
Judge Cordell: We’re talking ’72 or ’73, I can’t remember which one.
Professor Babcock: Right.
– 19 –
Judge Cordell: Now, what’s the women’s movement…
Professor Babcock: So the next thing that happens is I get this wonderful job and I’m going to
teach civil procedure; and I’ve got this book that I’m going to do, Sex
Discrimination. We gave it that name. Before then it was Women in the
Law, like Elephants and the Law. [laugher] Sociology and the Law,
Women and the Law, but finally we got this name. We take some credit
for coming up with that Sex Discrimination because that made people
nervous to say sex like that. These were the olden days. Sex
discrimination. Race discrimination. Sex discrimination. It’s right up
there.
So then this woman, Nancy Davis-still an amazing person-but
she was really astonishing as a young person, she was a part of this breed
that I’m describing. “What’s going on here? Women are being
discriminated against. I’m a woman. Stop it!” So Nancy Davis and
Wendy Williams and Mary Dunlap had started this law firm and Nancy-I
don’t even know what’the connection was, how she knew about me, but I
was still in my public defender office, I think, and she had heard that I was
going to come to Stanford and she just arrived in my office and demanded
that I get support for them and work with them. And we became really
close friends. And so we worked out this thing. I had this money from
Carnegie for the book and we had gotten an advance from Little Brown
and it’s mainly to pay Ann for writing. But at any rate, we got a huge
grant from Carnegie through Eli to set up Equal Rights Advocates. It
– 20 –
became the law firm-what was it called-Davis, Dunlap & Williams
became Equal Rights Advocates, and we had this fabulous clinical
program and we did all these things.
This is a clinical program unlike anything you’ve ever seen before
or since, in which students spent a whole semester. So it was done under
the umbrella of the externship program for fifteen credits, and I taught
them a course out of the materials for the book. We were working on the
book with the help of the lawyers, Wendy and Mary and Nancy. And then
they would work on the actual cases that the law firm had and, at the same
time, there was this third component in which we would simulate the
cases. So, if there was a motion for summary judgment, all the students
would write a motion for summary judgment and then we would actually
have a judge come and argue the motion for summary judgment before the
judge. And we would interview the actual client and then the client would
respond to what they thought of the interview and we would critique the
students. And then we would feedback the work they did in the simulation
into the real case, so it was really quite something. Incredibly expensive
though, paying the expenses of the law firm, part of my salary, the course,
etc. and then also we were working on the book at the same time. I did
this for four or five years.
But meanwhile, see, I’m teaching Civil Procedure and I realize
when I’d gotten here … Remember I’m the queen of Washington DC-of
a small circle in Washington DC-I am the public defender, and I try
– 21 –
cases and I testify in front of Congress, and I talk to juries. And then, all of
a sudden, I’m all the way across the country, I don’t know anybody, I’m
teaching this stuff I don’t like and am not interested in, and I don’t know
what’s expected ofme. And, all of a sudden, I realize I’ve gotten myself
into a position where I can fail. I’ve gone from being this incredible
success, way ahead of myself.
Judge Cordell: Top dog.
Professor Babcock: Top dog. Way ahead of where I could expect to be at my age too, and I
realized I didn’t know what I was doing. And yet at the same time I also
felt like I was doing something really important, because I was like a
channel. When I look back on it, it was just this time … this was when I
got involved with Estelle Freedman who didn’t get tenure at Stanford.
And I got involved with her case, and just working on it all the time. I
hear people telling stories about me that I can’t even believe that I did.
Somebody will say, “Oh, I was a young lawyer and she came in a taxi to
sit down with me and help me plan this case.” Or “She spent hours with
me advising me.” I said, “What was I doing spending hours when I should
have been writing deathless works of scholarship?” [laughter]
Judge Cordell: And this is when you were here.
Professor Babcock: I’m here at Stanford, and I’m running this clinical program.
Judge Cordell: But Barbara doesn’t it sound like more of the same? You were going like
gangbusters in Washington, so you come here, why should it be any
different?
– 22 –
Professor Babcock: I thought I was sort of going to have the contemplative life and think big
thoughts, but you’re exactly right, what I did was recreate my Washington
life. We got the book out and I think it was a really big hit. There’s
nothing quite like it today. But then against everybody’s advice, I got
involved with writing a civil procedure book because I knew that I loved
teaching civil procedure; and I never wanted to teach criminal law itself as
opposed to criminal procedure. And I loved teaching the first semester
students and really getting hold of them.
Judge Cordell: Why?
Professor Babcock: Because you can, they’re so eager and open to learning and you can really
imprint on them the responsibilities of being a good lawyer, just a great
chance, and also you’re teaching against expectations. They’ve heard that
civil procedure is the most boring course and the one they’re going to hate,
so if you make it really interesting and teach all these … I taught them
about due process and all these sexy subjects. But anyway, I got involved
in writing a civil procedure book, but none of this is anything that looks
like a tenure article, and I’m getting closer and closer. And then I guess I
wrote one or two pieces, and these two textbooks.
Judge Cordell: Isn’t that a big deal, two textbooks?
Professor Babcock: No, textbooks are not. .. Although these books were both different from
the ordinary text, but at fancy schools people think they’re just a collection
of cases, not really writing. But in fact it’s so cool to have your own book
and teach out of your own book and it gives you such authority. I’ve also
– 23 –
been glad that I did it and kept it up since then. Norm Spaulding is now
going to take over the civil procedure book. He’s sort of my legatee, or
my spiritual heir. So here I am and I am a big figure in the women’s
movement in the Bay Area.
Judge Cordell: So you’re top dog again.
Professor Babcock: Sort of, although kind of unwillingly, but I am doing it. I’m doing it. But
then Carter gets elected. And Carter had said that he wanted to appoint
women to positions they’ve never held, and even though I voted for Carter
and I’ve always been a Democrat and always will be, God knows, but I
didn’t know him or have any contacts with anybody. But he really is a
great man, Jimmy Carter.
Judge Cordell: You think so?
Professor Babcock: I actually do. But he set up this committee, a merit selection committee
and there were women on it and they were going to get me a job because I
was one of the women who had shown that they were lawyers devoted to
the movement. So it was completely because of the women’s movement
that I got this job in the administration. I went and I interviewed with
Harold Brown for general counsel of the Defense Department. So he was
the Secretary of Defense, Harold Brown, and I interviewed with Joe
Califano who was the head of, I think it was still HEW.
Judge Cordell: Health, Education and …
Professor Babcock: Welfare, at that point. And I interviewed with Griffin Bell.
Judge Cordell: Was he the Attorney General?
– 24 –
Professor Babcock: He was the Attorney General. I was hoping that I was going to be
interviewed for my dreamjob–the job I’ve always wanted all my life.
Judge Cordell: Which was?
Professor Babcock: Solicitor General. No woman has yet held that job, ever. Very few women
have ever even been in the Solicitor General’s Office. Now you realize
that the Solicitor General argues cases in the Supreme Court and is the
gateway to the Supreme Court. But he told me right out that the job was
already taken because he had offered it to Wade McCree who was this
African American judge from the Sixth Circuit who may have been a great
man. I don’t think so. But by the time he was Solicitor General, he was
an old worn out man. So then I thought the Civil Rights Division-no
woman had ever been head of that.
Judge Cordell: Who was the “he” that said the Solicitor General position was taken?
Professor Babcock: Griffin Bell, the Attorney General that I was interviewing. And Civil
Rights was taken by Drew Days and he was very impressed by Drew
Days, who had argued some cases before him. So what he wanted me to
do … Griffin Bell said “what about the law enforcement?”-what was it
called-LEAA-the Law Enforcement Assistance Administration. But
anyway it was really a good thing, this big agency within Justice that was
trying to improve the criminal justice system, but it was a pure
administrative job and not a line job and you didn’t really have lawyers
working for you. It was overseeing programs and it wasn’t anything that I
would want to do. And then he says, “Well, you know, your background,
– 25 –
you could run the criminal side.” I said I really could never be a
prosecutor, but what I’d like to do is be head of the Civil Division,
because I had studied the annual reports and everything and I really liked
the looks of the civil division.
I hit if off with Bell in this interview and I think he had to choose
some women. He had to choose some women-it wasn’t his natural
impulse by any means-but he saw that I was somebody that he could
work with. But he didn’t offer me the job on the spot, by any means. But
Pat Wald and I became the Assistant Attorney Generals, she for the Office
of Legislative Affairs, which generated the legislation that Justice was
going to present and also took Justice positions on legislation generally.
That’s not something I would want to do. I really wanted to run a line
division. So I took over as head of the Civil Division.
And just in terms of how you-to the extent that this is going to be
useful to people thinking about how you do these things … I knew that I
had made a good impression, but Griffin Bell didn’t offer me the job; and
I felt as though I could work with him as well as seeing that he felt that he
could work with me. But then I had a few calls from his staff people
checking on this and that and when I could start. But I interviewed early
in December and then classes were going to begin in the middle of
January and I still didn’t hear anything. So I just called and I kept calling.
“Where’s this job and what’s going to happen?” Which, again, it’s one of
those things that I don’t think is characteristic of me, and looking back on
– 26 –
Judge Cordell:
it that I had such guts to just call up and say “What are you doing?” and
“Where’s the job?” and “I’m waiting here and I have to start school.”
It’s so interesting that you surmise that it’s not characteristic of you when
I had just the opposite reaction. [laughter] Of course that’s how, you just
did it. These old barriers that supposedly are there, they’re not there for
you. There are no barriers there. You just call up because “I need to
know this.”
Professor Babcock: But looking back on it, I just can’t believe I did it.
Judge Cordell: It’s so consistent with how you’ve done everything.
Professor Babcock: I can’t deny that. But I can still. .. See, I was in this apartment where I
was living with Gail Saliterman on the comer of Franklin and Jackson.
Judge Cordell: In San Francisco.
Professor Babcock: In San Francisco. And I felt some trepidation picking up the phone and
calling the Justice Department, calling Griffin Bell, but I just thought. ..
And I sort ofremember, I believe I said, “I really need … I don’t want to
press you. I know you’re busy, but I really need to know. I want to
come.” And I could tell I was making them uneasy, but anyway, I got the
job.
Judge Cordell: What year is this?
Professor Babcock: This is 1977, early 1977
End of Tape Five
– 27 –
Judge Cordell: Today is February 22, 2006. I’m at Barbara Babcock’s house. This is
LaDoris Cordell and we’re continuing with our oral history of Barbara
Babcock. This is our sixth session, and today we’re going to talk about
Barbara going back to Washington. We’re up to 1977. You talked about
your interviews.
Professor Babcock: Yes, in 1976. But I don’t think I mentioned that the semester that I was
coming up for tenure, which was the fall of 1976, I visited at Hawaii Law
School. The semester that I was going to come up for tenure-which was
the fall of 1976-1 suddenly realized that I had gotten myself into a
position where I didn’t know what the job description was and maybe,
though I was working very hard and doing a lot of things, maybe I was
failing also. I hadn’t written a tenure piece.
Judge Cordell: But you had co-authored a book.
Professor Babcock: I co-authored two books, a civil procedure book and the sex discrimination
book, but textbooks at elite institutions are not necessarily considered the
good thing to do.
Judge Cordell: Barbara, who makes these rules?
Professor Babcock: The thing is, it’s not who makes them. They’re part of the culture, but it is
how you find them out. But it was more mysterious then. It’s more laid
out now and fairer for that reason, and I think that women coming in have
changed it and made it fairer. But as it was, it was very mysterious to me.
And one thing I knew was I didn’t want to be around when I was being
– 1 –
Judge Cordell:
considered for tenure. So I went to visit at the University of Hawaii,
which had just started its law school.
Can we go back a second? Why would you not want to be around when
they’re considering tenure?
Professor Babcock: Just because people are talking about you.
Judge Cordell: Doesn’t it make it harder for them to talk about you when you’re there?
Professor Babcock: Well they have to talk about you, though. Since they have to talk about
you, to actually be there would just make it difficult, I thought. It’s true,
my presence would keep the pressure on, but in another way I didn’t want
to be there explaining things if they couldn’t figure it out. But anyway I
went to Hawaii and that in itself was not advisable. If I wanted to go visit,
that would be fine, but I should go visit somewhere prestigious. But I
really wanted to go to Hawaii.
Judge Cordell: Why?
Professor Babcock: Well, I was in love with a man there. Don’t throw that in.
Judge Cordell: The whole love thing.
Professor Babcock: Yeah, it was a love thing, but it was also partly I really had been working
so hard for so many years and I felt. .. I just wanted to go. I wanted to go.
I thought it would be a great adventure; and so I did. And it was a great
adventure because it was only the second year that the law school had ever
existed and to go from teaching civil procedure to Stanford students to
teaching it to the kids at Hawaii in which there was this tremendous range
in the class … The top students were as smart as the ones at Stanford, but it
– 2 –
Judge Cordell:
went much further down and yet even to the worse student-who really
had no idea and probably wasn’t going to make it in the long run–every
single student there had a yearning for the law. Because there had never
been a law school there, only rich people or super smart people who could
get big scholarships could go study on the mainland. And so the idea of
having your own law school was tremendously exciting to people.
What size were the classes?
Professor Babcock: Oh, the whole class … I taught the whole class civil procedure. I think it
was about ninety students. They did a lot of imaginative things, because
there wasn’t real preparation for law school and they did have a summer
program and special academic helping programs, but I just taught the
straight civil procedure, just out of my book, the same way that I taught it
at Stanford. And I just had a wonderful time because of the excitement.
Judge Cordell: Were you worshipped there?
Professor Babcock: Worshipped? No, it was a new venue. They were excited like “we’re
getting the top of the line, we’re getting the Stanford thing,” and the funny
thing was people said to me, “you can’t teach in the way you usually
teach, because Asians don’t want to lose face and they won’t speak in
class, so that the traditional law school interchange is impossible in an
Asian classroom.” I really have never liked to lecture, just do a straight
lecture, so I just was determined that I was going to teach in my usual way
and I did. And I had them all talking, using the same methods that I use
always at Stanford and that I developed from early on.
– 3 –
Judge Cordell: What is your style? You talk about this method. What do you do in the
classroom?
Professor Babcock: [laughter] Well, there are several things. One is to ask really interesting
questions, and that’s what I spend all my preparation time on, is to figure
out a question that somebody would want to answer.
Judge Cordell: By interesting, do you mean provocative?
Professor Babcock: No, I think I mean interesting, that it is a question that may be provocative
in that you want to answer it, it provokes a desire to answer, but it’s not
like “defend this view” sort of, but it is something a little off-beat about
the case. I don’t ever start “what are the facts of the case?” though I think
the facts are important, but I start with … I remember one question that’s
always very good. I say “The plaintiffs in this case won, but they don’t
feel good. They feel bad. Why? What is it about this decision that makes
the plaintiffs feel bad even though they won? Winners can never really
feel bad,” I say. So I spend a lot of time on the questions.
Secondly, I make it almost cost-free to answer. If you’ll try to
answer it, I’ll work with you so that it’s not. .. At my very best-which I
don’t always achieve-it does have the Socratic effect of drawing the
information from the person that they didn’t know they had, if they’ve
studied and done the work. Now there’s nothing you can do with
somebody who is just … Those people I just pass over, who are trying to
show off. But I’ll work with anybody if they are prepared … So it’s
almost cost-free to answer.
– 4 –
And then I have some other things. I don’t know if I did this in
Hawaii, I may have done it, is this panel system of telling them ahead of
time when they’re going to be called on and what the material is going to
be, but not what the questions are going to be, so there is a panel that is
particularly prepared for that day.
Judge Cordell: When you say a panel, you mean like four or five students?
Professor Babcock: Four or five people. And I set those up and ask them to sit together in the
room. And they would become little study groups too and work on their
material. So they read extra articles and think about it. But it also takes
some of the scariness out of it when you know what material you’re going
to have to know and that you are going to be called on for it. And then I
had the same feeling that I had as a jury lawyer, which is-and this is a
real combination-which is a sense of obligation to make it interesting
because I’m really trying to teach these people. And the way you teach
them something is to make it interesting.
Judge Cordell:
Civil procedure, you know, you’re teaching against expectations,
people don’t expect it to be interesting. So I do try to make it interesting
and have fun. I go in there to have a good time. I was thinking about it the
other day. In some ways if you were looking at my overall career you
might say that I spent too much time preparing for classes, but I hardly
ever taught a bad class, in thirty years of teaching, I could count on the
fingers of my hand.
And you knew it was bad because you just knew it or because …
– 5 –
Professor Babcock: It wasn’t always great, but it was always pretty good.
Judge Cordell: Where did you get all this? This method just grew out of you?
Professor Babcock: Yeah, well, it grew partly out of being a trial lawyer where the question …
Everybody talks about cross-examination, but direct-examination is real
art, to ask the right question and think about it. And that’s true in cross
too, of course. And then part of it was my trial lawyer instincts, putting it
together, keeping control of everything, getting the answers you want,
setting it up almost like a script. When I’m really going … I have my
notes (which I give to students who become teachers) and my notes are a
series of questions and answers-I put the answers down too … When I’m
really going, then the script that I’ve written out with the questions and
answer is the actual script, so ifl’ve asked the question in the right way,
they’ll give me back what I expect to hear. And then the really exciting
thing is when they say something you don’t expect. But that just adds to
it. It adds to the notes. So a really successful class for me is like a day in
trial where you’ve figured out almost every possibility.
Judge Cordell: And you know when you’ve had a good day in trial.
Professor Babcock: You do. And you know when you’ve had a good day in class too, because
they’re really with you. You can sense them with you getting it. And the
thing that was exciting about teaching these students at Hawaii was that
they were getting it too. I learned these things. God knows no one told me,
but I think maybe there are things if you went to a session on how to teach
– 6 –
Judge Cordell:
at law school-they now have sessions like that-that these are the things
people would say.
So you were at Hawaii and you were just telling me about, you basically
didn’t dumb it down.
Professor Babcock: I didn’t dumb it down. That’s it. That’s another one of my principles, is
that I teach to everybody. Now that’s not saying so much when you teach
at Stanford. You can teach to everybody, though not all teachers do teach
to everybody. But when I was in law school, there were more than a few
classes where the teachers just talked to the smartest people and called that
teaching, having a little conversation with a few of the smartest people.
And I always resented that. So I teach to everybody. And when I did that
at Hawaii, maybe they didn’t get it in the same way and they weren’t able
to reproduce it, but for the classroom time, everybody was getting it. And
that was very exciting, and they were very excited about it.
Judge Cordell: How long were you there?
Professor Babcock: A semester.
Judge Cordell: So this would have been in the fall of. ..
Professor Babcock: The fall of ’76.
Judge Cordell: So then you’re there. And you said part of it you went to relax, kind of
slow down, did you do that? Did you slow down even though you were
teaching?
Professor Babcock: I did. I did, yeah. I taught this big class, but nothing was riding on it. If I
got terrible reviews … I wanted to tell you also-this was one of the great
– 7 –
tributes I felt-people from the education school and from other branches
came to watch me teach because they heard about it that I was getting
Asian students to talk. [laughter]
Judge Cordell: That’s wonderful.
Professor Babcock: It was. I loved Hawaii. People are so nice there and there’s a sweetness
about it. But it feels very foreign though familiar. So I did enjoy it. I had
a constant stream of visitors.
Judge Cordell: Meaning?
Professor Babcock: People coming for Hawaiian vacations. And I had this beautiful house in
Oahu overlooking Pearl Harbor and it was neat. I really had a good time.
Judge Cordell: So was it hard to leave, come back?
Professor Babcock: Well, you know, the election … Carter was elected and people were
talking to me about jobs and I was thinking about it so … I’m not sure
about the timing here, but I am almost sure that this is the way that it
happened.
Judge Cordell: You had last said you were at the Civil Division in 1977.
Professor Babcock: I started and I got right in. So I must have come back at Christmas time
and started interviewing then because I remember the pressure, the
semester was about to start and I was scheduled to teach criminal
procedure and Weisberg stepped in for me, I think.
Judge Cordell: Because you had been calling Griffin Bell you said and just putting it to
him.
– 8 –
Professor Babcock: Yeah, I-had. But when did I interview? See, I don’t remember flying out
to interview from Hawaii, but that must be what I did. So that’s what I
don’t remember. I remember flying out and I remember very well
interviewing at all these different places.
Judge Cordell: So it ends up you go to Hawaii, and you’re a rock star, and you’re …
. Professor Babcock: I’m an island girl and it’s just so wonderful.
Judge Cordell: And then you have these other professors from other schools coming to
see what you’re doing and understand your teaching. You wrap that up,
so your ego must be feeling good.
Professor Babcock: And I get tenure.
Judge Cordell: You get tenure. And now you’re still thinking of going to Washington.
Professor Babcock: I always tell the story that I’m a Democrat and always have been and
always will be, but I didn’t do anything in the campaign or work in the
campaign nor did I know Carter personally. But he set up these transition
teams and he was, he was so … it was just all so real and things seem so
false now, where we are now. It was just sort ofreal and sweet and nai:ve
almost that we’re going to find the best women in the country and give
them the jobs that they’ve been denied all these years. Nobody said “well,
how do you define ‘best’?” and “what are you talking about?” He set up
these transition committees and these women that I didn’t even know, but
they knew my name and had used my book or had heard of me. Some of
them knew my students, so I kept getting recommended. It was like that.
– 9 –
Judge Cordell:
It wasn’t knowing anybody important. It really was the women’s
movement and Carter, his sincerity.
Plus, don’t discount what you had done, your whole career. You’re
breaking barriers, you’re doing all …
Professor Babcock: But I’d been a public defender. But also being the first woman professor at
Stanford-that cleaned up the public defender act a little bit.
Judge Cordell: So you end up starting your job in Washington when? You start working,
what? The last time you told us about finally you accepted this position.
You wanted Solicitor General, that was the dream job, was not to be. And
so now …
Professor Babcock: I wanted Civil Rights and that was not to be, so I asked for Civil and I
pressed for Civil and I got that.
Judge Cordell: Tell about how you got it. Did you get a phone call …
Professor Babcock: No. When I interviewed with Griffin Bell, I liked him fine, but he was
trying to talk me into these other jobs that I didn’t want. But I had done
my homework and studied the Justice Department and determined that if I
couldn’t get SG (Solicitor General), the Civil Division would be the best
one because it’s this old line division and it represents the government in
Judge Cordell:
_ so many different aspects. It doesn’t have a program like tax or anti-trust
or the environment or even civil rights, which is good. It’s in this kind of
defensive posture. And it’s like running a huge law firm.
How huge?
– 10 –
Professor Babcock: In my day there was maybe 1,000 lawyers in Washington, and every US
Attorney’s Office has some civil obligations and some civil lawyers in it;
and you’re nominally at least in charge of them though there’s kind of a
struggle, we try to run them. So anyway, I had more or less had the word
from Griffin Bell that I was going to get something, that he wanted me on
his team, but then I didn’t hear from him and the semester was getting
closer and closer. Then I just bravely-see this is another one of those
things you’ll say is typical and I’ll say I don’t know how I did it-but I
called him and just said “What have you got for me, Griffin?” more or
less. But I said I had to know and I was ready to come and I wanted the
Civil Division, and he made one last thing of trying to get me to take the
Law Enforcement Assistance Administration, which would have been too
much. I really wanted to run a law office, and this wouldn’t be like
practicing law. LEAA is administering grants.
Judge Cordell: Why did you want to run a law office?
Professor Babcock: Well, I liked doing it. I like administration and I liked running the Public
Defender Service and being a leader and setting policy and trying to
influence how the government litigated. And those were all things I
thought would be neat to do.
Judge Cordell: So had you told Griffin Bell, “This is what I want?”
Professor Babcock: Yes. I told him I wanted these other things, and he countered with the
Criminal Division or LEAA, because of my criminal experience, and I
rejected both of those and said the Civil Division. I said that’s what I
– 11 –
would really like. But I think there was somebody … That’s kind of a
sought after job and I think he must have had somebody in mind, but then
when I called him up I got it.
Judge Cordell: What was your title?
Professor Babcock: Assistant Attorney General for the Civil Division.
Judge Cordell: Isn’t it from this position this famous quote attributed to you about …
Professor Babcock: Oh, that’s true. When I got to Washington, Pat Wald was the Assistant
Attorney General for Legislative Affairs and I was Assistant Attorney
General for the Civil Division. So, we were the two women in the Justice
Department. Maybe there are nine Assistant Attorney Generals. It’s a big
job and it’s a presidential appointment that requires Senate confirmation,
so it’s a political appointment. And then you become the head of this
large, on-going office which is staffed by people, many of whom are what
we called then Schedule C-who could be fired in a new administration.
Even the line lawyers were not particularly protected. I don’t know where
it stands today. But anyway, it’s a huge, huge thing, the Civil Division.
And I came to really love it in this way and I wrote this article that
I have to give you. It’s called Defending the Government- a companion
piece to an article about public defending called Defending the Guilty.·
The article is about the Civil Division, which is the oldest in the whole
department. Many distinguished lawyers have headed it. But for the
previous few administrations, the Assistant Attorney General had been
• Defending the Government, 23 John Marshall Law Review 2 ( 1990)
Defending the Guilty, 32 Cleveland State Law Review 175 (1983-84)
– 12 –
close with the administration and the Attorney General and had really
worked on influencing national policy and not on running the Civil
Division and all of its incredibly myriad responsibilities. And so I found it
not in good shape … lawyers without adequate support, up against big
corporations and big corporate counsel. So, I decided I would be an inside
Assistant Attorney General. I really came to that, that was what was
needed, and that I would run the division.
My big accomplishment stands today even though all the orders
and things that I issued were repealed as soon as I left office. But what I
did that stands today is reorganize the place and really bring it into modern
times. The way it was when I went there was that every time Congress
would pass some big new regulatory act, then that was an occasion for the
Civil Division to get a new section. So it was fourteen sections and two
subsections and each one had a chief and a deputy chief and an executive
assistant.
Judge Cordell: You can see the flow chart on that one, organizational chart.
Professor Babcock: Absolutely. And they competed with each other for resources, and a lot of
them were doing the same work essentially. So I reorganized it into three
large branches.
Judge Cordell: What were the branches, do you remember?
Professor Babcock: There was Commercial and Federal Litigation, I think, which is seeking
and defending against injunctions and that kind of thing, and then there
was an Appellate section, and then there was a third one, like Torts.
– 13 –
Judge Cordell: So you did Commercial, you said. Then there was Torts. That’s three.
Professor Babcock: That’s three. And then Appellate is sort of on the side. Torts-I don’t
know if it was called torts-but defending the Federal Torts Claim Act.
Those were huge class actions, mail trucks hitting people-which they do
[laughter]. Right now a mail truck is hitting somebody. All day long,
every day. So, it varies from huge constitutional litigation. Then there’s a
fraud section which is like a little criminal section, fraud in government
contracts. Huge range … customs cases and patent appeals. Oh, it’s just
amazmg.
Judge Cordell: What was your salary? What were you making then?
Professor Babcock: You know it was set. Could it have been 50,000? I think it was. It was
some amount that was … It was less than I was making at Stanford, or
maybe it was more, I can’t remember [laughter]. It may have been the
first job that I took where I didn’t take a cut in salary, but I just don’t
remember. I remember when I had to file all these disclosure statements
and I remember a guy at the White House said, “I think you’re the poorest
person who’s ever had a presidential appointment.” [laughter] And so
weird to be rich now, because I just had … I really had nothing. I had
nothing. I didn’t own anything.
Judge Cordell: Did it matter?
Professor Babcock: No, it didn’t matter because all I cared about was not having to think about
money. I had enough to live.
Judge Cordell: Did you have a car in.Washington?
– 14 –
Professor Babcock: I didn’t get a car in Washington. I don’t think I got a car, but I bought a
house, my first house. Yeah, that’s the first house I ever had.
Judge Cordell: So what do your parents make of this now?
Professor Babcock: Oh, they’re beside themselves with joy.
Judge Cordell: Because?
Professor Babcock: Because I’m home. I’ve come back and also my father was so proud.
And I remember I was so silly when I was sworn in.
Judge Cordell: Where was this?
Professor Babcock: Sworn in at the Great Hall of the Justice Department-the Great Hall,
that’s where they have these androgynous figures that Ashcroft had
draped. Well, they were undraped when I was sworn in, and Judge
Bazel on swore me in and Pat Wald-he was also a friend of hers. And
then at the last minute I called my dad-he was going to come-but I
called my dad and said “Would you like to hold the Bible?” And he said
“Of course I would, of course I would.” And I don’t know why, I can’t
even imagine why I didn’t think he would like to. Of course he would.
But anyway, he held the Bible and he was beside himself with joy and
pride.
Judge Cordell: That’s nice.
Professor Babcock: It was·. It was really nice. And I gave a kind of barn-burner of a speech.
Judge Cordell: Did you really?
Professor Babcock: Yes, I gave a little speech and I told them I was a feminist and scared the
shit out of them.
– 15 –
Judge Cordell: In front of all your troops there too?
Professor Babcock: All the troops. There were a thousand people there, all the Justice
Department, my troops, and I learned later that it really reverberated for
the section. No one had ever said feminist before those words.
Judge Cordell: The F word.
Professor Babcock: F word, right. And so they really thought maybe I was going to fire all the
men and hire only women [laughter]. I said I was a workaholic, a feminist,
a Democrat. I may have even said a few words at that point about what I
was going to try to do, which was make the government a model litigator.
So we would try to get to the merits of the case and not delay and not raise
technical defenses and that we represented all the people.
Judge Cordell: Who’s advising you on all this?
Professor Babcock: I’m making this up. I’m making this up.
Judge Cordell: No one is … you’re not bouncing this off anybody.
Professor Babcock: No. As I look back on it, I Judge Harold Greene (and Judge Bazelon too)
gave me advice. Judge Greene was the Chief Judge of the Superior Court
and he had been just a judge on that court and then he became a federal
judge. Carter appointed him to a federal judge from the Superior Bench.
But he had been in the Justice Department earlier in his career and he’s
one that sort of set me off on this, I remember, because he wrote and
said … He had been in the Civil Division in the 40s and 50s and said “If
you could keep the civil division from just automatically … they just file
– 16 –
these papers, no standing, the statute of limitations has run, whatever, and
really take a look at these cases.”
So I had ideas. Then there were some career deputies there who
had been waiting for change, and I appointed one or two of my own. I
took a special assistant and another career deputy and another deputy that I
took from the Public Defender Service. There was a, little core of people
there who had been sort of career people who loved the place and had just
been waiting for someone to care about it and try to take care of it and fix
it up. So I got a little team there when they saw that I was going to do
that. Though there was tremendous resistance to the reorganization. And
it was funny. You know, LaDoris, you’re the same way. You just assume
that if your motives are pure, that people are going to go along with it.
Judge Cordell: People will embrace you.
Professor Babcock: And people will embrace you because you’re not trying to do anything for
yourself, god knows. But they don’t. Their ox is gored in ways that you
hadn’t even counted on and don’t fully appreciate.
Judge Cordell: Can you give me an example of some resistance?
Professor Babcock: They went to the Attorney General and said “She’s doing this thing.”
Judge Cordell: They told on you.
Professor Babcock: “She’s doing this thing and she hadn’t gotten authority for it and she
should have to go through Congress. She should be part of the budget.”
He called me in and I said “I’m glad to show you the plans and I think
you’ll approve of them, but I think it’s well within my authority, I must
– 17 –
Judge Cordell:
say. What does it mean to run the thing?” But anyway it’s hard because
you do away when you make these branches; you do away with a lot of
the titles. I don’t know. They may have undermined me in other ways too.
It was a lot different from running the public defender where we were a
band of. .. well, we thought of ourselves as sort of outlaws, but a band of
brothers and sisters, but the Civil Division wasn’t like that.
How much was a factor your being a woman in this resistance. If you had
been a man … a White male would come in, say the same things … would
you think .. .
Professor Babcock: I think it would have helped a lot. No, I think being a woman … Dizzy
bitch is what they called me. The dizzy bitch.
Judge Cordell: How do you know they called you that?
Professor Babcock: Because I went to a conference once and this lawyer-he was actually an
African American lawyer-was drunk, deep in his cups, and he came up
to me and he said “I just want you to know that I think you’re doing a
great job. All the rest of them call you the dizzy bitch, but I think you’re
doing a great job.” [laughter]
Judge Cordell: Dizzy bitch. I guess you could have been called worse. What about this
quote, Barbara?
Professor Babcock: Oh, the quote. So I get to Washington, and there’s lots of women being
appointed to these big government jobs that they’ve never had before. So
the press says to me, more than once, “How do you feel about getting this
job because you’re a woman?” And so I developed this stock answer that
– 18 –
stood me in good stead, which is “It’s a lot better than not getting it
because I’m a woman.”
Judge Cordell: It’s a great quote.
Professor Babcock: And that’s the way I continued to feel. In fact I have to interrupt here and
say that many years later during the Clinton hunt for an Attorney General,
when he wanted to appoint a woman, I heard that people in the Civil
Division, my enemies, were just besides themselves at the rumor that I
was going to be returning as Attorney General. It was like their worst
nightmare [laughter], but I did have my supporters and friends.
The thing about the job of Assistant Attorney General in the
Justice Department-which I did for two and a halfyears-there’re two
things about it. One is that it is such a huge job that you really can’t fail at
it, nobody can ever tell whether you did a good job or not. It’s just too
big. My own story is that I did a great job. I reorganized the division; I
inspired generations of lawyers; and I did some good things. It was the
early days of the Freedom of Information Act and it was very hard to get
agencies to release information-which was what I was trying to do. I
think I had a real influence on that Act taking effect. And I put out these
orders, if you were going to resist disclosure, you had to clear it with my
office. And that was one of my orders that was repealed. But I think
orders like that did have an effect, at least cautionary effect. But no one
knows. It’s just this huge job. I was on leave from Stanford and wasn’t
trying to get another government job. The Civil Division was all I wanted,
– 19 –
unless I could get Solicitor General or the Supreme Court. But it really
helped that I didn’t want to move up in the administration, because if
anything happened that I couldn’t live with, that I felt was just wrong, then
I could leave. But anyway, the idea that you don’t want anything, that you
are not trying to move up or prepare your way for something else, that’s a
very good way to hold one of these jobs without compromising your
principles. Of course, my name is on a lot of things that I don’t agree
with, because my name went on automatically. But on things that went to
the Supreme Court, I could take my name off things.
Judge Cordell: Were you in court much at all?
Professor Babcock: Not much. I wanted to be, but first of all, that’s the other thing I wanted to
say. It is the hardest job if you’re really going to try to run the Division.
If you just want to be a policymaker at the very top and maybe even argue
a few cases, it wouldn’t be nearly as demanding, though it was still
demanding. But if you’re really going to actually try to administer the
place, there’s like three or four hours, honestly, of paperwork a day of just
memos and things that you have to sign off on. It’s just so huge.
Judge Cordell: You didn’t have email then.
Professor Babcock: No, no, no. I had three secretaries and four deputies and a special
assistant. That’s a lot of people for a little kid from Hyattsville. But still
there was just a certain amount that I had to look at, unless I just said “I
won’t look at it.” And then if you didn’t do three hours one day, then it
was six hours the next day.
– 20 –
Judge Cordell: What hours were you putting in?
Professor Babcock: I was just working all day. I got to the office at 7:00 in the morning and I
left at 8:30 or 9 at night, six days a week.
Judge Cordell: You’re back to the grind.
Professor Babcock: I had absolutely no social life. Luckily. I mean, I was in love with Tom
Grey at Stanford, so I wrote letters and talked on the telephone, but really,
it was just an amazingly difficult job.
I argued a case in the Fourth Circuit, but see it’s very hard. I
would liked to have gotten involved, but it was not only time that I didn’t
have, but it was also that the Assistant Attorney General showing up
signals the importance of the case to the government, so you can’t show
up in some little case just because it would be fun. And I didn’t have time
to do a big case. But I argued a case in the Fourth Circuit and I can’t
remember the details of that case. It was some kind of a discovery case.
And then I argued a case in the Supreme Court, the only case I’ve ever
argued in the Supreme Court. You’re entitled as a perk of the job to argue
a case in the Supreme Court, or argue as many cases as you can get them
to agree to let you argue, that come from your Division. And lots of cases
come from the Civil Division, but not a lot where I agreed with the
government’s position and would want to argue it.
But there was one. It was a reverse Freedom of Information Act,
Chrysler v. Brown, where the government wanted to give the information.
The providers of the information sued to prevent the government from
– 21 –
releasing it. And the information was affirmative action statistics that
companies were required to submit to the government. So I argued that
case in the Supreme Court and won. That was the only case that I ever
argued in the Supreme Court. And it was a lot of fun and my mother and
father got to come and Justice Rehnquist kept referring to me as General
Babcock [laughter].
Judge Cordell: Is that what they call the attorney generals?
Professor Babcock: Yeah, general. General, yeah.
Judge Cordell: General Babcock. Did you like that?
Professor Babcock: I liked that. Yeah. I thought it was cool. He was the only one. That was the
first and last time. But that is the official title. And Tom came too.
Judge Cordell: Really?
Professor Babcock: Yeah.
Judge Cordell: So he flew in.
Professor Babcock: He flew in.
Judge Cordell: How supportive. It’s very nice. So do you recall anything your parents
said after this one?
Professor Babcock: I don’t remember much about it. I remember the scene, because it’s so
thrilling and the courtroom is so small and it’s really … to be in the
Supreme Court. You ‘re much closer to the justices than you are in a lot of
ordinary appellate courts. I remember when I argued in the Fourth Circuit,
the judges come down and shake your hands afterwards. It’s Southern
good manners. I jus! think that’s the nicest custom. And it’s so sort of
– 22 –
personal. But the Supreme Court was, let’s see, who was there? Marshall
was still there.
Judge Cordell: So you argued before Thurgood Marshall?
Professor Babcock: Yes, yes. I knew him. I used to go have lunch with him, with Brennan
and Judge Bazel on and me. Isn’t that a great thought?
Judge Cordell: That’s wonderful.
Professor Babcock: Let’s see. It was Marshall, and Brennan was still alive.
Judge Cordell: And Rehnquist?
Professor Babcock: Rehnquist was there. He must have been the Chief. I’m trying to think,
who else?
Judge Cordell: Douglas wasn’t.
Professor Babcock: No, I think Douglas was gone. Stephens. I remember he asked a question.
And Marshall may have asked a question. Even though the principlereverse Freedom of Information Act was clear cut-the law and the statute
was tricky, and they were unfamiliar with it. It was the first case to get
there. So it was a hard argument. Do you remember my argument in the
Supreme Court [ to husband]?
Tom: [indistinct]
Professor Babcock: Yeah. How did I do?
Tom: You were great.
Professor Babcock: [laugh]
Tom: She was great.
Judge Cordell: That was Tom. I hope you heard that. He said she was great. She won.
– 23 –
Tom: She won.
Judge Cordell: No women on the Supreme Court?
Professor Babcock: No women at that point. No, my place hadn’t yet been taken.
Judge Cordell: So looking back two and a half years, you set about this incredible task,
any one thing that sticks out either as a really good moment or a bad
moment? Anything, any interaction, anything at all that hits you?
Professor Babcock: Well, I’m trying to think. The argument in the Supreme Court and the
argument in the Fourth Circuit, but there was some kind of a party where
they played a song that I still have, I’ll find it. In fact we’ll put it in with
this. It was the Reorganization Rag, some of the lawyers who supported
the reorganization. And it was very cute. “Barbara says we have to
reorganize and this is what we’re going to do.” That was one of the times
when I had a good feeling about what I was doing. But mostly when I
look back on that time, I just worked so hard. That’s all I can think about,
is how hard I worked, so I have a tremendous respect for government
lawyers. What I would really like is to be a line lawyer there.
Judge Cordell: To be a line lawyer?
Professor Babcock: Yeah, with a real caseload.
Judge Cordell: You said a line lawyer. You were talking about?
Professor Babcock: Yeah, a line lawyer, that’s what I would often think because running the
thing was so frustrating in ways. I mean, just because you never knew
whether you were getting anything done. And it was just a tremendous
amount of work without any kind of instant feedback, without any
– 24 –
feedback except the glory of the great position and having your own
bathroom. That’s a great thing, really.
Judge Cordell: What about public pressure? Were you feeling it?
Professor Babcock: No, I really never did, just because I had this sense of independence.
Judge Cordell: But you were appearing in the newspaper. There were write-ups.
Professor Babcock: Right, it’s funny. I remembered one time I went in sort of innocently-I
got more sophisticated as time went on-but at the beginning I gave some
interview where I said “I was going to hire … that we had no minorities
and very few women in the Civil Division and I was going to take care of
that.” And I remember Eleanor called me up and she said “That’s not the
way you do it. You’re just going to get people furious. Affirmative action
has to be done very delicately. You can’t just say I’m going to hire a
bunch of Blacks.” [laughter]
Judge Cordell: It’s got to be under the radar screen, Barbara. You can’t announce it.
Professor Babcock: Things like that. But, at the time, things like that I’m sure bothered me,
but I didn’t …
Judge Cordell: Did you ever get a call from Griffin Bell saying “Please don’t do that.”
Professor Babcock: No. There was a famous case called Snepp. • This man published a book
about the CIA and I forget the details of it. But allegedly people were
killed as a result, and the CIA sued him to prevent the publication of the
book or to take big chunks out of it because they said people would be
killed and that it was revealing methods or sources. So we were bringing
• cite Snepp in the circuit
– 25 –
the case to halt publication. I thought that we ought to settle it. And I said
all we’re going to do is make this book a cause celebre and it’s not going
to sell if we leave it alone. It wasn’t well written but we were about to
make it into a bestseller. And I remember Griffin Bell saying, “I thought
you were a litigator and it seems like all you want to do is not litigate, like
you’re afraid to litigate.” And I sort of suspected that some ofmy
lieutenants had gone to him behind my back on this.
Judge Cordell: So what did you say to him?
Professor Babcock: I said, it’s your decision. If you want us to, we’ll do it. If it were my
decision, I wouldn’t litigate it. But I put this guy in charge of it, one of my
deputies, who was great, and won it. And there it is, this Snepp case that’s
prior restraint under the First Amendment, that has my name all over it.
Students are always saying, “I see you worked on that Snepp case. I saw
your name on that.” But for somebody that was deeply conservative,
which Griffin Bell really was, and he was advising a President who was
not conservative, but who was not a lawyer, and there would be inevitable
conflict between somebody as liberal as me running the Civil Division and
somebody like Griffin Bell, but we didn’t really come to blows over
things. It was just sort of … I left him alone and I wanted to be left alone.
[laughter] And it wm:ked out pretty well.
Judge Cordell: So two and a half years … you leave and you mentioned earlier that things
just came undone. Everything you put in place.
– 26 –
Professor Babcock: No, no. Not right then, because this woman, Alice Daniel. Did you ever
know her? She used to be out here. I did this really extremely apt
Washington thing which is I got her in as my replacement before it. ..
Judge Cordell: Why did you leave?
Professor Babcock: Because I really was worn out; and I thought I had done as much as I
could. And I was in love with Tom, and I wanted to come home and get
started on my life with him.
Judge Cordell: So you get a replacement lined up?
Professor Babcock: I get a replacement lined up.
Judge Cordell: And that is Alice Daniel.
Professor Babcock: Daniel. And so she gets in and continues my policies, but as soon as
Reagan replaced Carter, that’s when they came in and … The first thing
the guy did practically was repeal all my orders. It actually made me feel
efficacious, because I never had a sense that my orders had any effect.
But they must have thought so, because they repealed them.
Judge Cordell: Talk about your orders. What are we talking about, a handful?
Professor Babcock: We’re talking about a handful of orders, general orders, that I put out, like
the one that comes to mind-although there’s some others in this article,
Defending the Government-but the FOIA one was the best example. It
ordered that if you’re going to deny release of records, then you have to
clear it with my office.
Judge Cordell: So it was Reagan’s whole group that came in and started undoing what
you had put in place. But the reorganization did that change?
– 27 –
Professor Babcock: No, the reorganization withstood the test of time, so I’m very proud of
that. In fact, if you went there now, nobody would know that it had been
any other way, I think.
Judge Cordell: How long has it been? It’s been almost twenty years. Anything else on
being the assistant AG? How about your last day?
Professor Babcock: Well, they had a party for me; and they gave me a big silver revere ware
bowl – engraved. And Tom came.
Judge Cordell: Were your parents there?
Professor Babcock: My parents were there. But it was really sad for them, because it meant
my going back to California and they couldn’t see why I wouldn’t like to
stay and be a high government official. It was a mixed … I was really glad
to leave though. Again, there’s something about it … It’s almost like
people who are kidnapped-the Stockholm Syndrome-you just get so
your life is just so totally focused and you’re just working so hard that you
can’t almost imagine anything else. I love Washington. It really is, in a
way, my home.
End of Tape Six
– 28 –
Judge Cordell: This is Thursday March 2, 2006. We’re in Barbara Babcock’s
home and we’re beginning our next session on oral history. My
name is LaDoris Cordell. This is our seventh session. Our session
today is about Barbara and Clara Foltz.
Professor Babcock: There is one thing I want to pick up from last time-when we were
talking about the Justice Department and the women’s movement.
One ofmy jobs at the Justice Department was to identify women
for judgeships. Remember Carter had worked with the Senators of
each state to set up these merit commissions, for picking the
district court judges. You couldn’t do that for appellate judgeships
because they covered several states and a number of Senators. But
even with the appellate courts, we could help women get appointed
by identifying them, and then aiding them in the confirmation
process. Drew Days who was the head of Civil Rights Division,
did the same thing for minorities. Carter appointed more women
and minorities to the bench than all previous presidents combined.
There wasn’t anything official about what I did, but it was kind of
unofficial lobbying, and Ruth Ginsburg always gives me credit for
helping her get appointed to the D. C. Circuit which led in tum to
the Supreme Court.
Judge Cordell: That’s real power in my opinion.
Professor Babcock: Leadership is what you really need. Even though Carter himself
didn’t know from day to day what was going on. He sent out this
– I –
order: I want to appoint women, see that it gets done. And it gets
done. I saw him last year and reminded him that he had appointed
more women than any president previously-and he had forgotten
about that and was obviously very pleased.
Judge Cordell: He was one of the finest presidents, I think.
Professor Babcock: He really was, though he was rejected for a second term. He
wasn’t into ~my of these high spin things and secondly there was a
way in which there’s a real disadvantage not to be a lawyer. It’s
the disadvantage that Bush has in addition to other disadvantages.
Looking back on it, he oftenjust wasn’t attuned to how you get
these things across.
Judge Cordell: Maybe he didn’t have the savvy that you pick up on in
Washington.
Professor Babcock: He didn’t have people around him that were good at that, although
there were a lot of good people.
Judge Cordell: So finding Clara Foltz …
Professor Babcock: I come back from Washington.
Judge Cordell: What year was this?
Professor Babcock: This is the summer of ’79. Tom and I got married that August. I
taught Criminal Procedure for the first time and I wrote this article
about effective assistance of counsel. Let see, what was it called …
Evidence Favorable to an Accused and Effective Assistance of
– 2 –
Counsel.· At that point when I wrote it, the Supreme Court had not
decided an effective assistance case for twenty-five years. All
these cases that were taken on effective assistance points were
decided on other points instead, they were really avoiding it. So I
wrote this article, it was compendious because every circuit had an
en bane case on the standards for effective assistance and state
supreme court cases also interpreted effective assistance. I wrote
this article about what should be the basis for effective assistance. I
just threw myself into writing this article even though I had tenure.
It’s almost like a tenure piece because I was, in a sense, starting
over in academia.
Judge Cordell: What law review? Where did it appear?
Professor Babcock: At Stanford. The way I went about it was so much like the things
that I have written as a student, and was very doctrinal involving
analysis of hundreds of cases. After it was published, it just
dropped in this black hole. The Supreme Court decided
Washington vs. Strickland, which was the case that said the
opposite of everything that I thought should be. I just felt crushed,
and they didn’t even cite me, not even the dissent cited me. And
that kind of scholarship was out of fashion, straight doctrinal work.
Judge Cordell: That’s you concluding that.
• Babcock: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 Stanford Law
Review 1133 (1982).
– 3 –
Professor Babcock: No, no, nobody is telling me that. But I could tell by the reception
that no one thinks it’s the greatest thing since sliced bread, which it
really was [laughter] of that sort of piece. I felt really discouraged;
I didn’t really think when I came into this work that I would give
up trying cases. It turned out that way. Teaching was a full time
job for one thing, and leaving and going to Washington really
made me see that I didn’t want to continue this public life. I’m
glad I did it. I think I accomplished something, but it’s not what I
wanted to do. When I came back here and wrote this article, I
didn’t get any result at all. I was just thinking maybe what I ought
to do is go into private practice. Having been the former head of
the Civil Division would make me desirable.
I couldn’t do what I wanted to do which is try criminal
cases. I didn’t want to try big criminal cases; I just wanted to try.
cases of poor people. But if you were to try cases of poor people,
you have to take an awful lot of cases because most of them you
have to plead guilty. So there was just no way I could do that.
I was thinking about scholarship as part of the job in these
elite universities. You continue publishing after you get tenure. I
just didn’t want to write an article that nobody pays any attention
to, and there’s so much work. I was in that frame of mind which
was kind of discouraging when Shellie Portman, the head of the
Santa Clara Public Defender, called me and said they were
– 4 –
celebrating the twenty-fifth anniversary of their office, and that a
woman, Clara Shortridge Foltz, had founded the office. He had
seen my name in connection with this tenure battle at Stanford in
which this women, Estella Freedman, who was a historian,
particularly of women and women prisoners. She wrote a
biography of the first woman prison warden. I had been sort of the
mouthpiece for her and her case, and we had managed to get the A
& P Board (Appointments and Promotions) decision reversed by
· the Provost, so she was awarded tenure. Marsha Berzon, now on
the Ninth Circuit, was the lawyer behind the scenes. But my name
was the one always in the newspapers in which I was saying, “no
we’re not planning to sue; we’re counting on the University to do
the right thing. All we ask is due process and the result will be
different.
Anyway, Shellie Portman said, “you know Estelle
Freedman. Would you ask her to write a history piece for us for the
program, for the anniversary celebration?” I’ve never heard of
Clara Foltz. There was this article that he referred me to that was
in Hastings Law Journal and done by Prof. Schwartz was his name,
and two students. They had done the first modem article about
Clara.* They really did a good job. They gathered quite a few
sources and painted her life accurately. Of course I found a
* Schwartz, Brandt & Milrod, Clara Shortridge Foltz: Pioneer in the Law 27 Hastings L. J. 545 (1976).
– 5 –
Judge Cordell:
hundred times more but still what they did was impressive, the
outline of her life. It came to me-she came to me-in the hour of
need that I’ll just write a biography of her, that’s what I’ll do. It
will be non-doctrinal scholarship, a new kind of scholarship,
narrative scholarship. I had always loved history. So the idea of
writing history and learning it …
This one piece you read, you never heard of her before, what was
about it that grabbed you?
Professor Babcock: Well, she started the public defender; that was it. The public
Judge Cordell:
defender days were my own happiest days in practice, partly of
course because I was young then. I just loved that role. I was
suited for that role. Writing about Clara Foltz, the inventor of the
public defender, was a way to re-visit, and in a sense re-live those
days. And it was a way to do a kind of writing and research that I
enjoy. She was very famous in her day and now largely forgotten
because her papers have been lost or destroyed. I have just
published an ·article that establishes her role in inventing the public
defender. In researching and writing it, I have confirmed that she
was really smart, which is a relief to me. Sometimes I worry that
I’ve just made her up.*
She was smart?
* Barbara Allen Babcock, Inventing the Public Defender, 43 Am. Crim. L. Rev. 1267 (2006).
– 6 –
Professor Babcock: She was very smart, very intellectual. I think if she had been a
man, she would have been famous like Wigmore, Thayer,
Wharton, or other nineteenth-century legal figures. Even though I
had warnings from (what I recognize now were kindly wellintentioned) people that you shouldn’t write a biography when you .
don’t have the papers. There are other people who archived
highly, other women lawyers, who do have the papers. That’s the
reason that as famous as Clara Foltz was, she has been so forgotten
because there are no papers.
Judge Cordell: When you say papers, you mean her own writings?
Professor Babcock: Yes, a collection of stuff she wrote. There are articles and things,
but these were not collected in one place: her letters, her
correspondence, her speeches, her publications. There are many
interviews of her, and she’s been in the paper all the time but these
nineteenth-century newspapers are not indexed.
An interesting thing has happened as I have gone on with
this project. I have now gathered a great archive that I’m going
publish online (with the book)-an archive of all the things I’ve
gathered, all the newspaper articles and trial transcripts. There are
a lot of places I know where to look that it wouldn’t occur to a
non-lawyer to search. I will publish these all online-so future
biographers will have Foltz’s papers. I’ve found quite a few letters
from her in other people’s papers and letters about her. It’s been a
– 7 –
big detective search, as I say, transcripts of trials, that kind of
thing. She wrote four or five law review articles. When you think
about that … for a person in active practice-in those days
especially-it just wasn’t something people did.
Judge Cordell: Does she have kids?
Professor Babcock: Five children, my dear. That’s what got her into practicing law to
begin with. Her husband left her right in the middle of a
depression, terrible depression. She wanted to keep her childrenher family-together and not parcel them out, and she had tried
taking in boarders and such. She was a great seamstress and
milliner and teacher too, but none of those could make enough
money. She always wanted to be lawyer. She went and got this
statute passed allowing women to be lawyers. She became the first
one, but she had five children under the age of twelve. That’s
another thing that held her back [laughter]. It held her back, but
she always said it drove her on, that she wouldn’t have done it if
she didn’t have the children.
Judge Cordell: Did her children grow up to be lawyers?
Professor Babcock: No, her three daughters were all actresses. Clara was very
dramatic herself, and even thought once of becoming an actress
herself. Four of her five children predeceased her, which is a
tragic thing. I think her two beautiful older daughters … one of
– 8 –
them I know died of alcoholism and I think the other did too. I
think Jeremiah was an alcoholic.
Judge Cordell: Who is Jeremiah?
Professor Babcock: Jeremiah was her husband. She eloped when she was fifteen with
Jeremiah, who was a handsome Union solider. She had these three
children before she was nineteen. Then she had the fourth and fifth
after the marriage was already shaky, in an effort, I think, to hold it
together. Her sons, one of them was in the insurance business.
Judge Cordell:
The other one, I don’t know exactly what happened to him. He
died young too in his forties and I don’t know whether he was an
alcoholic. Her younger brother, Sam, lived to be well into his
nineties, and she lived to be eighty-four, which was older in those
days than it is now.
Let’s go back to writings. You’ve decided to enter into this
adventure, to write this book about the woman you’ve just
discovered. You’re cautioned now that’s going to be too hard
because there are no papers, but you’ve decided to do it anyway.
So, talk about if you will, a little bit about what it means to write
about the life of someone …
Professor Babcock: Well, it’s a true relationship with the person – and it is – and I see
it every year with my students becoming biographers for a
semester in the class. They take on these qualities as biographers.
First of all, you have to be very careful because you really feel that
– 9 –
you’re on a rescue mission, especially with Clara Foltz, who has
been forgotten, who hasn’t received real credit for this public
defender idea. One has a terrible tendency to gloss over flaws. I
always joke that I’m trying to put the hag back into hagiography
[laughter].
Judge Cordell: A biographer does not gloss over flaws?
Professor Babcock: No, I don’t think you want to do that. This is the difference
between writing a novel about her and trying to write as true as I
can. Lots of times I just don’t know what she really thought or
what she intended. I don’t have anything like a diary. There is a
way in which the lack is liberating too because you’re not stuck
with her reasons.
I also do find her a companion and inspiration and mentor
of the type that I haven’t had. I didn’t really have any women
lawyers as a model. The best example of Foltz as my mentor is the
Bork confirmation hearings for Supreme Court Justice. I was
asked to come testify against him. I was still kind of a big name in
the women’s movement. I was asked to come to represent women.
Tom [Grey, my husband] was going to testify against him for the
Society of American Law Teachers. When I was asked to come to
testify, I said, “Oh god, I’m so busy and there’s always good
people, and Tom is already there testifying, you don’t need me.
Tom will be there with my viewpoint,” and then I just hung up the
– 10 –
phone. I just thought, “good heavens, Clara Foltz,” the idea of
being asked by the Senate Judiciary Committee to come and testify
on the Supreme Court nominee and not to go because I’m busy
writing this book, when she would die for this chance. That was
just one of the great experiences in my life.
Judge Cordell: So, you called back?
Professor Babcock: I called back. “I changed my mind. I’ll be there.” So Tom and I
went. It was a great experience, just because Washington, in the
middle of the moment like that, is such an exciting city where
everybody from the chambermaid, to the taxi driver, to the
President, they’re all involved in what’s happening. I was on a
panel with Shirley Hufstedler, Sylvia Law and Wendy Williams.* I
remember Chuck Lawrence said … and there were lots of senators
there when we testified. I got into a long thing with Orin Hatch. A
lot of them I knew from being the head of the Civil Division.
Judge Cordell: And Chuck Lawrence said …
Professor Babcock: Chuck Lawrence said (he was watching on television), “see that
panel of the brilliant women and those fools that are running the
country” [laughter]. It was a very, very exciting thing. It was one
of the last times that we won. The conservatives are still whining
about it, like somehow he deserved the appointment, which is the
same thing that happened with Alito, like he deserved it because
* Judge Shirley Hufstedler, Ninth Circuit judge, and Secretary of Education in the Carter administration;
Professor Sylvia Law, New York University Law School; Professor Wendy Williams, Georgetown
University.
– 11 –
he’s not a devil or he worked hard all his life or he’s a nice man.
He considers the case carefully, but he always comes out the same
way.
Anyway, working on Clara Foltz is like having some kind
of companion, but also there’s a time when I get discouraged about
her.
Judge Cordell: Why?
Professor Babcock: Well, she’s always scrambling for money and does poor work at
times. She joined the Supreme Court Bar. She was the fifth
woman to be the member of the Supreme Court Bar, so she could
sign briefs to the Supreme Court. She just signed this brief that
was like a total crazy, mishmash, for a man that was a San
Francisco local nut.
Judge Cordell: She signed this to make money?
Professor Babcock: I think she’s lending her name to it to make money because there’s
no other … it’s embarrassing. It was one of her few briefs in the
Supreme Court.
Judge Cordell: So you come out to liking her?
Professor Babcock: I do like her. The thing I like about her is how smart and how
brave she was, and she was a real person of principal. She was a
true feminist, and she was always thinking about what’s good for
women. As far as her character goes, one of the things I like was
– 12 –
she wasn’t one of these overly serious people. She really had a
good time.
Judge Cordell: She was not earnest?
Professor Babcock: She wasn’t really earnest, that’s the thing. She had a good sense of
humor. And she necessarily lived in the minute, threw herself into
what she was doing right at that moment. That’s what I like about
her. But the down side is that she was quite vain and as she got old,
she became embittered, I think, that people didn’t recognize her,
didn’t give her enough credit. I think she may have lost it a little
bit too, but I’m not going to tell that story.
Judge Cordell: Writing, I hear about writer’s block. You sit down and you can’t
write. Is this something ever happened to you?
Professor Babcock: No, I know people who have that, but it’s not me. I can just sit
down and I can just write and write and write. I have no problem
at all. But the trouble is, after I’ve written it, letting it go before
every word is incredibly polished. I have hundred of pages here –
now some might think there is a deep psychological block here, but
(naturally) I resist this. I’ve published a number of articles about
her – and I just published [in the winter of 2006) another article
bout her great legal achievement.· The traditional thing that is
• Major Babcock writings on Clara Foltz: Clara Shortridge Foltz: First Woman, 30 Ariz.L. Rev. 673 (1988,
reprinted with a new introduction in 28 Val.U.L.Rev. 1231 (1994); Clara Shortridge Foltz: ConstitutionMaker, 66 Indiana L. J. 849 (1991), Reconstructing the Person: The Case of Clara Shortridge Foltz, in
REVEALING LIVES 131 (Susan Groag Bell & Marilyn Yalom eds, 1990); Western Women Lawyers, 45
Sta. L Rev. 2179 (1993); A Place in the Palladium: Women’s Rights and Jury Service, 61 U. of Cincinati.
L.Rev. 1139 (1993); Feminist Lawyers 50 Stan. L. Rev. 1689 (1998); Foltz entry, 8 AMERICAN
– 13 –
very usual for biographers even for ones that don’t have to put the
record together from scratch is to take a long time. And the reason
you take a long time is because you get really hung up with the
details of the person’s life and the meaning of it. And everybody’s
life, take your life, you have a more colorful life than most people,
and so do I, in terms of the contacts that you have. The things that
people know about you and the things that you’ve given your time
to. If you start looking into all those, you could take as long to
write the book as for the person to live it.
Judge Cordell: That’s right. That’s the hard part.
Professor Babcock: It is and every biography ends the same, the person dies; you don’t
want the person to die; and your project is over and your reason for
being is over. The thing is, now I want to write the next book even
more than this one. Next is going to be my memoir. And giving
this oral history to you has made me want to do that even more
because you seem to be so interested [laughter].
Judge Cordell: You’re right. This is very interesting, everybody who reads this
and listens to this, oh of course, absolutely.
Professor Babcock: I’m really hoping to finish the book on Clara next year. The
trouble with writing as an enterprise is that you’re never free, you
could always be improving, adding to or doing some additional
work on whatever you’re writing.
NATIONAL BIOGRAPHY 181 (1999); Women Defenders in the West, 1 Nev. L. J.l (2001); Inventing the
Public Defender, 43 Am. Crim. L. Rev. (2006)
– 14 –
Judge Cordell: It’s almost comparable, I think, when I do a piece of art. I don’t
know when I’m finished because I look at it and there’s always
something else that I can add or something else that needs to be
changed. Finally, I just have to stop.
Professor Babcock: Yes, that’s exactly the same. You just have to let it go, and that’s
Judge Cordell:
what I’m going to do now. I’m very near, and it’s so disconcerting
because I’ve got these hundred of pages, but only the last few
hundred that are in this style that I developed which I really think
it’s a cross over style that would appeal to academics and to lay
people.
What name or term would you give to this style? Is it the
narrative?
Professor Babcock: It’s a strong narrative. It’s kind of a modem writing, no jargon or
technical terms that aren’t explained, and emphasis on story telling
so that you build up the thing.
Judge Cordell: This is your wonderful strength. You’re a wonderful story teller.
Do you want to say anything more? I don’t think we necessarily
need to go into all the details of Clara Foltz, that’s youtbook. I
just want to make clear that this is something you’re working on
and that you’re devoted and that you’re seeing the light at the end
of the tunnel. Is there anything more on the whole Clara Foltz
thing?
– 15 –
Professor Babcock: The Women’s Legal History course is so neat, and that’s one of the
things I want to say about Clara Foltz, let me step back for a
minute, which is I worked on women’s issues and sex
discrimination law when I wasn’t really interested in it. But now,
I’m really getting paid back because my familiarity with that area
of the law enables me to do this history better. I really do believe
that about life, if you cast your bread on the water, it comes back
many fold. This course, which I teach with Erika Wayne, the
assistant library director, is one in which each student writes a
chapter in the life of a pioneer women lawyer. They write about
friends and allies or enemies, about the historical context, and the
heart of the paper is analysis of some legal issue or case or speech
or writing that the person did – their legal achievement. This is
something law students can bring to the research that historians
doJ.?.’t really understand. They do a timeline and leads that they
follow, and promising leads for the future. We’ve put all those up
on the website. We’ve got hundreds of women now.
Judge Cordell: ‘ What is the website address?
Professor Babcock: The website is http://womenslegalhistory.stanford.edu. You
should go there, you’ll like it. Students can build on each other’s
paper also. You could take a woman that was previously taken and
add another chapter to it. In a very post-modem move, the past
papers become the text for the course.
– 16 –
Judge Cordell: Do you have male students in the course?
Professor Babcock: Yes, every once a while. We’ve taught it now for 5 or 6 years.
The first year was all women, and I think there was one other year
there’s been all women, but every other time there’s been one or
two men, mostly minority or gay men. Last year, there were a
couple of straight white men and this year we have one minority
man who is also the boyfriend of one of the women. He really
seems to be enjoying it and it’s nice to have men, but there’s
something special about it when it’s all women.
Judge Cordell: Which you like.
Professor Babcock: Yes, which I like. There’re just some understandings. On the
other hand, it’s good for men to take it.
Judge Cordell: Any other ways that Clara has influenced your life? You devoted
these years to writing about it, and developing a course. You call
her a friend.
Professor Babcock: Yes, my friend and my mentor. She’s also kept me going here, and
I don’t know what I would have done on the scholarship front.
She’s given me a project that I really believe in and like. I haven’t
had to face whether I would feel all right going on in academia and
not doing scholarship. I could always argue that I’m making such
a contribution ifl didn’t write, but I’ve never wanted to go there.
Judge Cordell: Who will play Clara in the movie?
– 17 –
Professor Babcock: Well, I think Jody Foster. She actually kind oflooked like Jody
Foster.
Judge Cordell: I like that Jody and I have the same birthday.
Professor Babcock: You do? I like Jody Foster, great actress.
Judge Cordell: Anything more on Clara?
Professor Babcock: No, I think that’s it.
Judge Cordell: Ok, we’re going to end this session at this time. We’ll probably
have one final session.
End of Tape Seven
– 18 –
‘Tv\A re.”” 2° 1 .,_ ()()’
Judge Cordell: This is our eighth session and last session. Barbara, what do you want to
talk about today?
Professor Babcock: Well, I thought I’ll talk a little about teaching and kind of winding up, and
Judge Cordell:
talk maybe about cancer and retirement, or what my plans are for the next
twenty-five years.
Excellent. Let’s just go back one second to what you were saying earlier
about teaching. Do you think that to be not merely a good teacher but a
great teacher requires something special? And some people have it and
some don’t and you·can’t acquire …
Professor Babcock: I don’t believe quite that. I believe you could acquire ninety percent of it
– maybe you can’t get the extra ten percent. That’s some kind of charisma
or feeling for the students, or sometimes when I’m at my very best I really
feel like we have extra-sensory communication. It’s as if I’ve been in their
mind or they’ve been in my mind; and that’s very exciting and fun. But
ninety percent of becoming a good teacher can be done by hard work and
practice and preparation, and being very clear on what your goals are
before you go in.
Judge Cordell: You mean your goals for each class?
Professor Babcock: Yes, it’s like trying a case, you need to have a theory, and everything that
you do, everything that is said, is in keeping with that theory. The same
with the class. You’ve got to keep in mind what it is that you want them
to get out of this. Imagine somebody is being interviewed after class.
What was that class about? You want everybody to be able to give a
– 1 –
sound bite at one level. There are lots of levels. You’ll see these
fundamental errors, and I see them because I made them all. I think I got
better and better. Oh, I want to go back a minute and tell you the basic
mistake I made when I started out teaching civil procedure. I told my first
class that this was the first class I ever taught and I don’t really know
anything about civil procedure and that I will be learning with them. I
thought they would be charmed by that, but they were horrified.
Horrified! They’re paying thousands and thousands of dollars and they
got this woman as a professor, who is totally unknown and unproven, and
then on the first day she tells them she doesn’t know anything about the
subject matter. She’s going to be learning along with them. I don’t know
what possessed me to tell them that. This is the worst thing you could do.
But with criminal procedure, I started out making the same kind of
fundamental error which was telling them that I’ve been a public defender
and that I had this really deep …
Judge Cordell: And now you know everything.
Professor Babcock: I know everything, but I’m telling them that I’m biased. I read these cases
in a way that most people don’t read them. And that it’s okay to be
biased. Everybody is biased. You’re born with bias about these criminal
procedure matters. The people you need to watch out for are people that
tell you they’re totally neutral. As I went along …
Judge Cordell: But what’s the mistake?
– 2 –
Professor Babcock: It was a mistake because even though you reveal things to them, things
that they wouldn’t see themselves (for instance, when the appellate court
is going to rule against the criminal defendant, they spend the first couple
of pages on the facts even though the facts have nothing to do with the
legal point). Things like that they wouldn’t see for themselves. I’m so
pro-defense that I roused the opposition, and so as I went along, I was
great at the beginning in criminal procedure and that’s when I began
winning the teaching awards because I was teaching something so
interesting. If you don’t get a teaching award when you teach criminal
procedure, there’s something wrong with you [laughter]. Every case is
really interesting. I taught criminal procedure, teaching it in the eighties.
I taught it for many years. I developed this other way, not exactly being
neutral but really presenting both sides or even presenting the prosecution
side and letting them come up with the rabid defense side. Sometimes I
joked with them and said “I’m glad you said that.” It just worked a lot
better to let them arrive at it themselves instead of banging them over the
head with it, though either way they never had any doubt where I stood.
In a way teaching criminal procedure was-I don’t know-I really like
both. I didn’t care about the subject matter of civil procedure so much but
I loved having the first year students. You know they’ll always remember
that first semester in law school; you’re just functioning on all cylinders
and the things that you teach about legal ethics and how to approach cases
and clients that they never forget. But the criminal procedure, I really do
– 3 –
Judge Cordell:
love this stuff, the doctrine and the deep knowledge I have, how exciting
and interesting it is. I had really big classes. I mostly taught civil
procedures to classes of sixty, but criminal procedure at Stanford, I had
one hundred and twenty or more.
Do you like the big classes?
Professor Babcock: Yes, just having that many people, like leading an orchestra, and trying to
get everybody thinking and being there and trying to make it exciting and
fun. That’s where I have my best successes.
Judge Cordell: How many teaching awards have you received?
Professor Babcock: I’m the only person to have gotten a Hurlbut award -given by the Stanford
graduating class, four times. I’ve gotten other awards -the Society of
American Law teachers and the Margaret Brent award from the ABA.
The award that I most value is the Hurlb1:1t A ward, and there was time
right before I retired when I was thinking I wouldn’t get it again after
1996-that the third would be the last. But then I got it the fourth time in
2004, the year I retired. In many ways it was thrilling. It was special. I
think I might have sent you my graduation speech. The class enteredthey just started law school when 9/11 happened-so the sixty people I
had in civil procedure at that moment were in that class that was
graduating. I felt a very special connection with them because we all went
through this terrible thing together, and you know the excitement of
beginning law school and then all of a sudden everything was thrown not
into perspective, not into any proper perspective, but into some kind of
– 4 –
terrible perspective. What does it mean to be talking about due process
when the whole world’s gone mad?
Judge Cordell: So you gave this graduating speech in what yearr
Professor Babcock: 2004, it must be 2004, the same year of my retirement. Anyway, it’s very
hard to teach in these elite schools because everybody is so smart. I
remember when Eleanor started teaching at Georgetown and she said,
“you can’t just walk in and tell them stories, these people are smart
[laughter].” That’s sort of intimidating, and to get control over them in the
situation and to have an authority and to establish your authority is hard.
Judge Cordell: Do you feel like at times … attacked may be too strong of a word, but I use
it now, attacked by the conservative element in your classes? Like they’re
waiting to get you …
Professor Babcock: There was some of that at the beginning, when I was the only woman on
the full-time faculty. Deborah Rhode had come while I was away in DC,
but after a few years of doing contracts (very successfully) she never
taught in the “mainstream” again. That is, she taught seminars. and classes
in gender law, and legal ethics-but not the basic first year or later bread
and butter courses a large range of students take. Anyway, teaching those
courses myself, I ran in the early years into some resentment of having a
woman professor. There might have been a feeling that I wasn’t a real
regular law professor since I was an affirmative action hire. Teaching civil
procedure at the very beginning was good because it got me a little core of
• copy of graduation speech.
– 5 –
people in every class who really appreciated me. And then as years go by,
you get this aura and this reputation, but there were times when I felt that
people thought I was just a big bleeding heart liberal. I think I overcame
that in the end, especially in criminal procedure because I really did also
give them the doctrine. It wasn’t just to win their hearts and minds. They
got the doctrine. And it pleases me that students have said when they were
taking the bar exam that they can hear my voice. I was talking the other
day to Alison Anderson, who teaches at UCLA and has taught for many
years. She has put a tremendous amount of effort into her teaching and
she said, “nobody cares and nobody respects it, and you don’t get offers
from Harvard or anything for being a great teacher.” I said it differs from
school to school based on its culture in teaching. She said, “Oh, Stanford
is no different from anywhere else.” I said “But, Alison, you have all
those students out there who you have influence over and I really do feel
though its an ephemeral thing –not anything you can put your finger on,
but many times former students have said that I hear your voice when I go
into court. I can just hear you spelling out reasonable, articulable
suspicion. It’s that kind of reward in addition to a sense you’re doing
things, although again, it’s not like having books on the shelves.
Judge Cordell: So you figured out this teaching thing by yourself?
Professor Babcock: Trial and error, yes. I had some ideas coming in, like the idea of asking
the right question, but then this idea about just putting things out on the
table that can be known and not trying to make it more complicated
– 6 –
Judge Cordell:
because it’s complicated enough. With anything in law you can get to a
point that’s very complicated, so why start there?
Have your mother or father ever seen you teach a class? I know they
came to court.
Professor Babcock: Yes, they used to come. Whenever they come out, they would come. My
mother when she lived out here. She would come.
Judge Cordell: Where would she sit?
Professor Babcock: In the back. I always loved my mother to come to things because she
would really give me compliments, detailed compliments. Most people
would just come up to you and say, this is really good. But she would say,
“oh when you made the gesture” or “when you smile or your clothes really
looked good or the way you moved around, that was terrific.” She was
always very good at that.
Judge Cordell: Do you watch some of your colleagues?
Professor Babcock: You have to do it. The younger people, you have to help them.
Judge Cordell: You ever videotape your classes?
Professor Babcock: There was a videotape of my last class. Oh, that’s a really good thing. A
videotape of my last class, in which I teach the class for about half an
hour, and then they surprise me and gave me this chair. Did you ever see
this chair?
Judge Cordell: Yes. Did you cry?
Professor Babcock: No, I didn’t, but I was deeply moved. I almost cried. They cried. A lot of
them cried.
– 7 –
Judge Cordell: So there’s a videotape of that, of the last class?
Professor Babcock: It’s really neat. I haven’t thought about that for a long time.
Judge Cordell: Is this something you have?
Professor Babcock: I have it, and there’s one in the law library too.
Judge Cordell: Good. I think it should go along with this.
Professor Babcock: That’ll be neat. That’s a great cool idea.
Judge Cordell: Anything else on teaching?
Professor Babcock: No. I think that’s it. Sometimes I think I exaggerate or overdo the
importance of my teaching, how great it was and that there’s a limited
amount of influence great teaching has.
Judge Cordell: This is one that I disagree with you on. How can you possibly say that
when you have all these people coming through, you’ve touch their lives
in some fashion, some more than the others, so how can you ever
underestimate …
Professor Babcock: Well, you could say, you’re just one teacher out of many in one big class
and you can’t quantify or really know what the effect is. It’s that kind of
thing. I think that a great success of my life is being a really good teacher.
Judge Cordell: Now do you miss it?.
Professor Babcock: I don’t miss it at all. There is a stunning regularity of teaching when you
have to do it whether you feel like it or not. Also teaching is taking on the
responsibility for your students. It’s all the letters ofrecommendation and
counseling, most of the time I’ve been here, there have not been many
minority faculty, or a lot of others who regarded taking care of the
– 8 –
students as a primary duty. I always have this special relationship with
minority students. And then you add to that the women, and the ones who
want to do criminal law, and the wounded birds. That’s the additional
responsibility that I don’t miss. Now I have time to do my own stuff, and
I never had felt that I did have enough time while teaching.
Judge Cordell: Let us conclude the teaching. What do you want to cover next?
Professor Babcock: Let’s talk about when I got cancer which was in the mid-eighties.
Judge Cordell: You were teaching …
Professor Babcock: Oh, I was about to teach. In fact I’d just finished teaching civil procedure.
I went and had a mammogram. Classes had ended in December. They
called me back to take more pictures-and I just thought “This is it. I’ve
got cancer.” Partly I do think cancer is my fate because all of my
grandparents died of cancer. My father died of cancer.
Judge Cordell: You’re not a hypochondriac, so this wasn’t. ..
Professor Babcock: No, no, no. In fact, I hardly ever got sick. I only have big things like
cancer [laughter]. I hardly ever get sick or even think I’m sick. I’m also
very stoical about pain, though I’m not sure I’ve had a lot of pain actually.
I never get headaches or ulcers or upset stomach or anything like that.
Judge Cordell: You’ve been having regular mammograms?
Professor Babcock: Yes, they saw it from a change from the previous mammograms. I’m
really pro-mammogram because ifl haven’t had those mammograms on
file, they wouldn’t have seen it. They got it at the very earliest point for
both of them.
– 9 –
Judge Cordell: Which is good.
Professor Babcock: Yes, that was great, and was also great that it turned out be two
independent ones because it hasn’t been metastasized. There was this
moment that lasted about two weeks of going to the oncologist and
surgeons. I thought I might die, that this might be curtains. I think
something really happens to you. I think there’s some adrenaline or
hormones that start up in your system because I just felt terrible. I felt this
terrible sadness and depression and fear.
Judge Cordell: You were how old then?
Professor Babcock: I was in my early fifties maybe. . .. And fear, this animal fear about it. I
also was stunned at how primitive everything is. You have cancer, well,
just hack off your breasts and get rid of the breast flesh so you won’t have
it again. But then it turned out it went from being the worst thing to being
the least horrible aspect because it really was caused by taking estrogen all
these years. They have this scale of how estrogen-receptive a tumor is.
The scale is 1 to 10. My tumor was like, one was 150 and one was 250.
In a sense, I shouldn’t have been taking estrogen all those years. But it
was indicated at the time-to prevent osteoporosis and the worst
symptoms of menopause. At any rate, I took Tamaxifan, and did not have
to have chemotherapy or radiation. It took me a while to recover
mentally from this kind of fear that I’ve gone through. Weisberg, I
remember I called him and I said, I don’t think I’m going to be up to
– 10 –
Judge Cordell:
teaching this semester. He just took over my class and he didn’t give it a
second thought. That’s the kind of a person he is.
It seems like that was a long time ago. It doesn’t influence me. I
don’t think about it anymore. Sometimes people say you’re a cancer
survivor or people run in a race for me and wear my name-a cancer race
-and I don’t mind it. But that’s not who I want to be. I don’t want to be
an official cancer survivor.
So, the feeling of mortality issue is right in your face. You had it right in
your face. Now you went through it. You’ve beaten the cancer.
Professor Babcock: Now it seems like in a remote past. I’ve always been-I don’t think this
Judge Cordell:
really changes it though it may have helped me get through it-I’ve
always been somebody who lives in the moment, getting the most out of it
and really having a good time, whatever I’m doing. That’s a line about
cancer that people always say, that it makes you appreciate the
preciousness of every day and facing mortality how wonderful and great it
is to be alive. I think I’ve been pretty good about that all along. What I
just remember about it was just this feeling of profound sadness and fear.
I don’t feel those things anymore, and I hardly remember what it was like.
I don’t think I have any real insights and didn’t get much out of it
[laughter]. I just got through it.
That’s more important then anything else. Our hour is about up. We
could stop here. I don’t know if you’re going to talk about anything more.
You kind of talked about. .. but not a whole lot of retirement issue.
– 11 –
Professor Babcock: There’s not much to say except to say that I’m liking it, the sense of
autonomy. I teach the seminar, but the seminar is not the kind of teaching
where you feel responsible for getting a body of material and an attitude
towards an area of the law across to people. I love this feeling of not
having to be anywhere. With the retirement what I’ve done is I’ve
stopped wearing makeup most of the time. I don’t wear the prosthesis
anymore. I don’t wear pantyhose. I just wear pants and I gave up my
contact lenses because they’re just a drag. It used to be that when I got up
ih the morning, I would get ready to go on stage, for a public appearance.
Now I’m not doing that anymore. It’s very pleasant, very pleasant! I’m
just deep into writing this book, which is going to be … My goal is to live
to finish it. I think it’s going to be a wonderful book. I really do. It feels
as though getting the book out and people will see what I’ve been doing
all these years. And god willing, I’ll write my memoir.
Judge Cordell: Excellent. As we conclude our eighth session, this has been wonderful.
This is a fabulous oral history. I look forward to reading it, now that I’ve
gone through it with you. I think this is going to have a tremendous
impact – a positive one – on people who take the time to listen and or read
this. Thank you.
Professor Babcock: Thank you. I really enjoy doing this with you. You’re just really good at
this.
End of Oral History
– 12 –
Judge Cordell: Today is Thursday, March 22. It is approximately 4: 15 p.m. I’m sitting at
Barbara Babcock’s house and we are taping the final session of our oral
history. This session we’re going to talk about Barbara’s childhood and
upbringing. So Barbara, why don’t you talk to us about where you were
born and your family?
Professor Babcock: Ok. I was born actually in Washington D.C, but I lived the first five or six
years in Arkansas, in Hope Arkansas, because my father went into the
Navy and my mother stayed and was working in Washington. We were
sent back, my brother and me, who is 15 months younger than me, David,
back to Arkansas to be taken care of while she was working.
Judge Cordell: Are your parents alive?
Professor Babcock: No. They both died. It’s always seemed to me to be a wonderful story of
their early lives together. They were both from Arkansas. My mother was
from Hope, which is now a famous little town near the Texas border and
my dad was from Batesville, which is in the Ozarks on the White River.
They met at Arkansas College, which was a small church school in
Batesville. My mother was the first person in her family to go to college.
Her family were pioneers in Arkansas …
Judge Cordell: How so?
Professor Babcock: I mean, they were the first people who lived there … [laughter]
Judge Cordell: Oh, those kinds of pioneers [laughter]
Professor Babcock: Yeah, those kinds of pioneers [laughter] They were farmers and my
mother’s grandfather’s name was Joseph Starling Moses and he was just
– 1 –
definitely Jewish by birth. He ran a little store that was called Moses
Mercantile and if you see a picture of him and his family, you would think
it was a Jewish patriarch surrounded by all these good looking people, and
that was my mother’s father’s side. No one in the town thought he was
Jewish. He went to the Baptist Church. And her mother’s side, they were
also early pioneers, German extraction, but her mother was an orphan.
My mother’s mother was an orphan. She had been raised by an aunt and
uncle and the uncle Was a country doctor who lived really out in the
country in Arkansas. He was famous, Uncle Frank, for reading. He read
everything. He would get books in the mail and just read and read and
read. He had a horse and carriage and would go take care of people all
over the neighborhood. My grandmother married young and was a farm
wife all of her life. She had no education beyond the sixth grade, and
neither did my Grandfather, Pop, we called him. Floyd Moses was his
name; He was a farmer and my mother always said about her growing up
in Hope. She always said “we were poor, but we didn’t know we were
poor.” She had a brother Perry and two sisters. Her sister was few years
younger, her name was Ardelle, but she was always called Mutt because
when she was born she had all this black hair and looked like a little mutt,
people said. So her name was Mutt Moses.and she was this beautiful
woman, eloquent woman called Mutt all her life. And you put that
together with this other pronunciation of aunt, you got “Ain’t Mutt,” that’s
– 2 –
what we called her [laughter]. And there was a sister that was much
younger, Margery. She was ten years younger than they were.
Judge Cordell: What is you mother’s name?
Professor Babcock: Doris. Is that a funny collection of names? Perry, Doris, Ardelle (Mutt)
and Margery- But I do think my mother’s childhood was idyllic. Hope
was this little town and the Moses girls were the belles of the town.
Though they looked almost exactly alike, especially in their old age, Mutt
was known as the pretty one. Mother was the smart one and Margery was
the sweet one. My mother was a great swimmer all of her life. She would
swim with the boys~ bicycling out to the quarry every day in the summer.
She was always smart in school so she got a chance to go to college and it
was very very exciting. My grandfather at the time had moved in from the
farm and opened a feed store in town and had sent my mother to college.
I think it’s two years she spent at Arkansas College were the happiest
times of her life. She was voted the most attractive, and loved all her
courses, and met my father who was a senior and was considered the
smartest person in school, and probably was. So they had this great
romance. But then the second year, my father had left Arkansas … Oh,
the second year was the stock market crash. She went the second year, but
she couldn’t go back after that because my grandfather had to move back
to the farm. He lost his store. He w~s always very proud though that he
paid off all his loans. He didn’t go into bankruptcy or let other people go
– 3 –
down because he was going down. He went back to subsistence farming.
My mother instead of going to college which was so exciting to her, she
became a school teacher, a country school teacher. She was young and
she had such a struggle. She always remembered. They weren’t paid
money. The State had no money. People who lived through the
depression never got over it. My mother’s relationship to money was
always peculiar because she lived through time when there was literally no
money.
Judge Cordell: So what did she get for compensation?
Professor Babcock: Scrip. Scrip, so someday you might be able to cash it in, or cash it in right
away for like ten cents on a dollar. She remembered going in together,
everybody going in together to buy a coke and share it. They were so
poor. And these children, these disadvantaged country children that she
was trying _to teach and inspire . . . and my father had done what a lot of
people in Arkansas did. · See, there was no job, no matter how smart you
were you couldn’t get a job. So he went to Washington DC, these young
people flocked to DC because of the government. There were jobs in the
government. My mother was in love with him, though there were a lot of
men who were interested in her. She then went to Washington where there
was a crowd of young Arkansans that knew each other. My mother
always said they were “cute people”; they were the cutest people. I think
she meant they were story tellers and knew how to have a good time.
Judge Cordell: Was she married by then?
-4-
Professor Babcock: No, they eloped. In fact, I have this telegram framed here-this is a
telegram that she sent to her parents.
Judge Cordell: Want to read it?
Professor Babcock: Yes, I’ll read it. It said … there’s a date on it, which is pecember 2,
1935. “I have al:ways loved Henry, so we were married tonight at 8:00 in
the Church of the Assumption, Silver Spring, Maryland. We are awfully
happy. Love me and be happy too. Doris.
Judge Cordell: This telegram went to?
Professor Babcock: Her mother and father, Floyd and Alma Moses. And then I was born in
193 8, three years later, and David 15 months after that. As I say, when the
Second World War started, my father went into the Navy and my mother
sent us to Arkansas. I don’t remember a lot aboutHope, except I do
remember I was supposed to go to Batesville and David was supposed to
go to Hope, but we couldn’t be parted. Our parents both worked and the
depression … and we really were unusually bonded; we just had each
other. So when we were separated, both ofus just cried all the time.
David has always been sad that we ended up in Hope instead of Batesville
because the Batesville relatives were more affluent and had an easier life.
Life on the farm in Hope was not that easy, as you probably don’t know
but have read [laughter].
Judge Cordell: Right.
Professor Babcock: But I do have some pleasant memories of growing up on the farm. My
cousins were around, the children of my mother’s siblings. There were
– 5 –
lots of things that are fun about a farm for a kid. I always remember my
grandfather would come in at night, and he would say, “David, you want
to go with me to get the cows?” He never would ask me to get the cows.
David of course didn’t want to get the cows; and I would have liked to do
it So that was my first experience of sex discrimination.
My father grew up in Batesville, which always seemed less idyllic than
my mother’s youth because his father died when he was only 9 or 10
years old. He was a drygoods salesman. He was a handsome man. He
was a really successful salesman; and he made a lot of money as a
salesman. He had just built this big fine house that had the biggest
magnolia tree in Arkansas; and it was in the front yard of this house.
Huge, you have never seen a magnolia tree this big with low lying limbs
even a little kid could climb quite high in it. Anyway, my father’s father
died and he never really knew him because he was on the road. He left
nothing; he left nothing except the house. He died young, so my
grandmother on that side began taking in borders, that was kind of a hard
life; and my father always had to work to actually help support his mother
and sister. I do think Batesville was a nice little town, a beautiful little·
town, and he was always a bright little boy; he would tell this funny story
about how he drove the ice truck, taking around the ice for refrigeration.
One time he was going up a big hill in a hot summer day — it gets so hot in
Arkansas that you don’t even know hot — I mean, Washington DC is very
– 6 –
hot, but Arkansas is worse. The horse died. And he was just a little boy,
14 or 15 years old and the horse died; he never quite got over that. When
he came from the Navy, they brought a house on the GI bill for $9,000 in
Hyattsville Maryland.
Judge Cordell: That’s a lot of money back in those days, right?
Professor Babcock: Well, wouldn’t be so much. This is around 1946. I’m not sure what the
inflation rate was, but it was till cheap then for such a huge house– a great
big Victorian house, tremendously run down, but it had been built by the
senator from Indiana in 1880s. It was a show place, beautiful house, great
big house full of secret passages and it had servant quarters.
Judge Cordell: This was in Washington DC?
Professor Babcock: No, this was in Hyattsville, Hyattsville Maryland, which is a suburb of
Washington. Then it was kind of a sleepy country suburb but now it’s
quite a bustling suburb. I remember when we moved into that house, my
mother was in despair because my father just gone out and bought it
without her even seeing it. I remember we rode the bus over from
Buckingham Virginia where we were living to the new house in
Hyattsville. For a kid, it was a wonderful house that had apple trees and a
huge yard. In the spring time, everything looked beautiful and exciting,
but of course my mother said, “How am I going to keep a huge house like
this.” And she never did manage to keep it. Her method of keeping house
was to tum the lights low and paint everything gold [laughter].
– 7 –
Anyway, I grew up there in Hyattsville in that big house. I loved that big
house. It had a wonderful front porch where I would spend many hours
reading a whole book. On a summer day, I opened a book in the morning
and finished it as the sun went down for good in the evening.
Judge Cordell: How old?
Professor Babcock: Oh, I started in the 4th grade or so. We moved there when I was in 2°d
grade. There’s a game we played or used to play called deprivation. You
had to say something that you’ve been deprived of. And everybody who
had what you’ve been deprived of has to give you a penny. And the
person who ends up with the most pennies wins. I had the best one which
is I didn ‘thave shoes in the pt grade, that was in Hope. Tom has a very
good one too which is he’d never been to a public school [laughter]. So,
my father had gone to law school at night before he went into the Navy,
and he was working in the library in the day time.
Judge Cordell: This is where?
Professor Babcock: In Washington DC. He worked in the library, the Masonic library in the
day time and at night he went to law school at GW (George Washington).
But he never graduated. He just took some courses. In those days, you
could take the bar without finishfog law school. You didn’t have to be a
law school graduate. He became a lawyer and went into practice with his
cousin who had grown up in Batesville. They had the same grandmother.
He was a very successful man in real estate, business kind of thing, but he
– 8 –
didn’t practice much law; and he wasn’t much of a lawyer, but my father
really was, I think, probably a great lawyer.
Judge Cordell: What is your father’s name?
Professor Babcock: Henry. Henry Allen Babcock. I really never thought about it, but of
· course he was my inspiration for becoming a lawyer. It was partly
because, and I might have told you this before, he made being a lawyer so
much fun. He would go to work; he walked to work everyday, just a few
blocks, and he always seemed to look forward to going. And at night at
the table he would tell these wonderful stories; a lady came into the office
today, and then he would be off on some wonderful tale in which the
lawyer was always the hero. And I thought the lawyer is the person that
can solve all your problems. I remember once, I got into a fight with a
neighborhood boy. He was an old fashioned bully. I’m not sure they have
them anymore …
Judge Cordell: How old were you?
Professor Babcock: I was around 10, 11 or 12. He was just … beating up little kids. He was
just a bad boy. I told him to stop doing that. I remember it was just like
yesterday standing in the yard and I said, you have got to stop doing that.
And he said who’s going to make me? And I said, my father, he’s a
lawyer. This boy, I don’t remember his name, he said so what, and then
he just socked me. That was sort of my first introduction to the fact that
lawyers may not be able to … the mere mention of a lawyer is not going
to solve everything. [laughter].
– 9 –
Judge Cordell: Whatever happened to the boy?
Professor Babcock: I don’t know. I hope he had a very obscure and unsatisfying life. I don’t
know what happened to him.
Judge Cordell: You and your father share the same middle name?
Professor Babcock: Yes, yes, it is … let’s see whose name it is … it’s somebody’s name. It
may have been my great grandmother’s name or something, but that was a
very southern thing you know. To use last names for middle or even first
names.
Judge Cordell: And your brothers do not share the happy Allen in the names?
Professor Babcock: No, they have … David Henry and Joseph Starr. Joseph Starr after
Joseph Starling, my mother’s grandfather.
So I went to school around the comer, always able to walk to my school,
always went to public schools. I always liked school very much.
Judge Cordell: What do you like about it?
Professor Babcock: I liked that if you really work hard, didn’t act up, things would happen the
way you expected them to happen.
Judge Cordell: Did things come easily to you?
Professor Babcock: Very easily except for math, everything else I was good at. Anything that
smacked of math from a very early age I feared, with an almost animal
fear. But then I developed this thing … did I tell you this story when I
was in college? I got to the University Qf Pennsylvania — – they didn’t
have all the strictures now on human testing, on human subjects that they
had then. So my roommate told me that you can get some huge sum, a
– 10 –
vast sum, like $10 or $25 for going over to the psychology department and
being a subject in this experiment. So I went over there and this is within
months of getting to college. The thing was they give you this test and I
couldn’t do it. I couldn’t even see what it was about. Afterwards, they
meet with you and they say this is pretty serious, what’s your background?
Oh, you went to a big public school. You’re not cut out for this. You’re
not college material if you can’t do this. So they’re measuring anxiety and
stress. I said, oh, I got a big scholarship here, I’m sure I can do it; and I’m
not in any trouble. Well, how can you account for the fact that you can’t
do this test? I said, it’s math. No, it’s not math, it’s reading
comprehension. I said, no, no, if it’s reading comprehension I can do it; it
must be in some ways related to math. They just absolutely couldn’t
shake me. So afterwards, they said, you’re off the scale. We can’t use
you. But I love the certainty of school … and for early on I developed
this … I like giving speeches. I remember my first speech, we put
together like a speech, a report …
Judge Cordell: When was this?
Professor Babcock: This was the 4th grade. I remember my first speech was on New York
City ..
Judge Cordell: Before we … but speeches, these were classes where you had to give
speeches?
Professor Babcock: It was like a report, but I would give speeches. I remember I had one on
the death of Lincoln that had people in tears, me included [laughter].
– 11 –
Judge Cordell: You said New York? You gave one on New York?
Professor Babcock: I gave one on New York. One ofmy first speeches was on New York.
Judge Cordell: Were you dramatic when you were doing it?
Professor Babcock: Dramatic, gestures, but mainly I just prepared it.
Judge Cordell: Did you research?
Professor Babcock: I did a lot of research. I had a lot of facts that people wouldn’t know.
Judge Cordell: So you spent a lot of time in the library?
Professor Babcock: Yeah, in the library reading books. The library was just down the street.
You can take out something like 7 books a week. And my best friend
Patsy, my best friend since 2°d grade, she lived around the comer from
me; we went through grades 2 -12 together. Kids in the neighborhood
organized ourselves for play, but our lives were not nearly as organized as
those of kids today … Lessons, I’ve never had a lesson; no tennis
lessons, no dance lessons, no swimming lessons, no camp, no tutors; just
lots of time when the summer came. It seems the day would last forever.
As I said, I just remember so much about the pleasure of reading, just
reading a whole book, and no responsibilities.
Judge Cordell: Do you have a favorite elementary school teacher? Any come to mind?
Professor Babcock: I didn’t really have a teacher that I was crazy about until the ih grade, and
that was Mrs. Jerrold. I thought the sun rose and set on Mrs. Jerrold.
Looking back, I don’t know what it was. She just seemed so smart and
she always prepared and she always knew I had the answer.
Judge Cordell: Were you the teacher’s pet?
– 12 –
Professor Babcock: Well, I didn’t do things like bring an apple or wash the board, but I was a
pet in the sense of being the smartest, and recognized as being the smartest
which is all I really wanted. Then I went to this high school — this great
huge high school — the first school was called the little school, then there
was a middle school, then there was a Junior High for 7 through 9, and
then the high school was 3 grades. A huge, huge 500 kids in each class.
N orthwestem High School. I think I told you about my high school. It
was the most un-diverse place you could ever imagine. I remember
thinking this is one of the best schools, and we really believed that this
was one of the best schools. We had a very dedicated Principal and ·
wonderful teachers.
Judge Cordell: Were you still giving speeches?
Professor Babcock: Oh man, giving speeches, yes, in all kinds of classes. This was the 50s, so
you were supposed to do lots of extracurricular activities, and that’s how
you got into college. There were no serious varsity sports for girls in
those days. I was moderately athletic, and basketball I could have been
good at, but we played half court …
Judge Cordell: Two dribbles
Professor Babcock: Yes that’s right, two dribbles. But that wouldn’t be true with you?
Judge Cordell: For me was three.
Professor Babcock: [laughter] But you didn’t have the half court play, did you?
Judge Cordell: I’m trying to remember. I think we did.
– 13 –
Professor Babcock: Anyway, I was one of the first people to be an officer of all three honor
societies: the National honor society, the Thespians, which was the
dramatic honor society and the Quill and Scroll which was the journalistic
honor society. Patsy and I put out the yearbook. We were to co-editors of
the yearbook, and it was like … I just went to my soth high school reunion
last June. I pointed out to people which they had really never noticed, a
picture of Patsy or me on almost every page [laughter]. It’s like that
“Where’s Waldo” children’s book, if you look carefully you’ll find Patsy
or me everywhere. I started saying I was going to be a lawyer early on. I
· said it all along– in my Junior High School yearbook there it is: ambition:
lawyer. Then everybody thought I would be a lawyer because I was
always making speeches.
I would say I was popular in that people would vote for me, but I didn’t
have the kind of popularity that I longed for, which was to be a
cheerleader. That was what I really would have liked to be. I actually tried
to be a cheerleader, but I couldn’t jump [laughter].
Judge Cordell: Could you do a cartwheel?
Professor Babcock: No, God no, but I don’t think that was required at that time; you do need
to jump real high and throw your arms back and put your legs up. But I
did have a boy friend, and that was good. That was my first boy friend,
and I saw him at the soth reunion too.
Judge Cordell: How is he doing?
– 14 –
· Professor Babcock: He’s doing great. I had heard a long time ago that he had died. So I was
very surprised to see him, and it was really wonderful to see him. He
Judge Cordell:
· didn’t change much.
So talk to me about hair when you were a little kid, how you rate your
hair?
Professor Babcock: Well, I have this very curly hair.
Judge Cordell: Was that a good thing?
Professor Babcock: No, no. I always wanted long straight heavy hair. When I was little, I
remember one time my aunt just washed my hair and brushed it in the sun
and it just stood up; this huge like a giant afro. She never had seen
anything like it, but it was extremely curly. It’s curly now, but it was
much curlier then. I remember it wasn’t good, but I wore it short My
mother had this idea that my hair should be a little cap of curls, that was
her idea, little cap of curls, rather than struggle with it. Most people that
have curly hair went to a beauty parlor and had it straightened. So I wear
it very short most of the time, not as short as yours, but right up there.
When I was in college, the page boywas the thing in the 50s. I would roll
my hair on huge rollers every night and sleep on those things. Every week
or so I would put on the perm stuff to straighten my hair but once you’ve
gotten it straightened and if you got it wet, it will be all over. Somewhere
along the line though, I don’t remember when, curls became really the
thing — in style. And I thought, this is it.
– 15 –
Judge Cordell: Did your mom have the curly hair?
Professor Babcock: No, hers was straighter and easier to deal with.
Judge Cordell: And your dad?
Professor Babcock: Well, I can’t remember his hair. He was bald and had a little hair on his
side. He was always very proud of himself because he never got gray.
But we always’ said, Dad, you don’t have any hair [laughter]. My dad was
a person that people would call a character, and he had this terrible illness
of alcoholism which ruined his life and my mother’s. But people loved
him, my father, partly because … he was disinterested, he didn’t have
hatreds or strong aversions even and he always saw the other side. He
thought almost everything was funny. He could make anything funny,
something bad would happen and he’d make a funny story out of it.
· Judge Cordell: Is that you? Do you do that?
Professor Babcock: I think it is one of the things that I do. I do make funny stories out of
things that happen, good and bad.
Judge Cordell: Speaking of funny stories, tell us about the rain coat.
Professor Babcock: The rain coat story [laughter]. This is a paradigm story in my life and it’s
odd that I’ve made it a public story because it was a real trauma in my
childhood. I was in the 4th grade, so that means you are like 10 or 11.
There was a quiz show on the radio on Saturday mornings pitting two
grammar schools against each other, with one representative for each
grade in each school. The school that won would get a movie projector
and a set of encyclopedias and lots of good things like that; and the whole
– 16 –
school would come, the whole community would come and see the
schools against each other, so the auditorium would just be filled with
hundreds of people. I was chosen to be the 4th grader for our school. Mrs.
Vanderlinden was my teacher, and she said to me that I was chosen
because I was the smartest person in the 4th grade and had the highest IQ.
When the people heard that I was going to do it, they said, why did you
get it? And I said, oh, I was the smartest person in the class. I didn’t know
you shouldn’t say that, and I thought that was just a matter of fact, like …
I have curly hair, I’m the smartest person, and I didn’t say I was the
prettiest person.
Anyway, what I forgot in my joy.about being chosen is that I didn’t know
anything, which I still don’t. I don’t have any facts at my command and
being married to Tom Grey for almost 30 years makes me worse because
you don’t have to know anything. You can just ask him [laughter],
anything that you need to know. So the day dawns, we were there. I
come up to the first question.
Judge Cordell: Before you ·do this, you didn’t study for this.
Professor Babcock: No, no. This is supposed to be general knowledge.
Judge Cordell: Oh, I see.
Professor Babcock: This is supposed to be general knowledge because you’re in school. It
didn’t even occur to me to listen to what kind of questions they have and
read up. I believed them when they said I was the smartest so why I
– 17 –
would have to prepare [laughter]. So, I go up to the microphone from my
chair, and behind me was sitting Billy Davis who is in my class that has
the 2nd highest IQ. He’s the alternate in case I would faint or something.
Judge Cordell: And this place was full of people now?
Professor Babcock: Full of people, hundreds of people.
Judge Cordell: Were your parents there?
Professor Babcock: Oh of course, maybe my brother too. So I go up to the microphone and
.
the question was: where is the Sahara Desert? And I had no idea where
the Sahara Desert is. Well, they said it began with an “A.” I said, A, are
you sure? [laughter]. Is it Africa. I was terrible so I go seat down. And
Billy Davis said I knew that.
Judge Cordell: He resented you.[laughter].
Professor Babcock: Right. So I go up for the second question. The second question was who
was the great Frenchman who invented the process to purify milk? And
again, I don’t have the faintest idea and the Emcee said think about the
milk carton, what it says. And I said,
Judge Cordell: [laughter]
Professor Babcock: Homogene. So I go back to my seat and Billy Davis said- I knew that.
Judge Cordell:
And then we were behind. And I go up for the last round. They ask what
do the Native Americans – I think they called them Indians -what did the
Indians use fish for other than food? I said rain coats.
[laughter]
– 18 –
Professor Babcock: And the answer is fertilizer, which everyone else including Billy Davis
knew. I never forget that, and when I was walking crossing the Catholic
school yard with my father and my father kept hitting me on the back and
saying, oh that was so funny, rain coats, ha ha ha ha; homogene, ha ha ha,
he was roaring, roaring with laughter. He didn’t realize it was the end of
my life. One thing I learned from that was never go on another quiz
program. When I was in college, they want me to be on . . . remember the
College Bowl? I said you must be crazy. I would die before I would go
on another quiz program.
Judge Cordell: Didn’t you end up in a tree?
Professor Babcock: Yes, I did. But I don’t think I came close to a suicide because I couldn’t
even imagine what that would be, but I just couldn’t go back to school. I
went back to school the first day after it happened and Mrs. Vanderlinden
called me out into the hall and said, it wouldn’t be so bad thatwe lost the
encyclopedia and the movie projector and the whole thing, but you told
everybody that you are the smartest person and you shouldn’t have told
people that. I just felt that I never could go back to school. I would go out
everyday and pretend I was going to school, and I would just go out and
climb up in the magnolia tree in the back yard and read a book until it’s
time to come home. And I had my lunch up there· …
Judge Cordell: . [laughter]
Professor Babcock: So that was the trauma of my childhood, in early childhood. I would say
given the difficulty of high school that I did alright. I had a fairly ok time.
– 19 –
Everything that I’ve been telling you all along … if I just work … I
really work so hard, I mean being an officer of these clubs. I wasn’t like a
figurehead; i was out there getting the props for the play and seeing the
program being planned. I didn’t have the starring role. I’d never been a
very good actress. I just can’t be anything else other than myself, that’s
my problem.
Then I had a lot of opportunities in terms of going to college but it was a
bad time financially for my family. So I just resolved to go to the college
that gave me the most money. I had absolutely no idea where to apply.
Looking back, it was just the most random thing. We had a college
counselor but it was like one person for 500 kids. I got this wonderful
scholarship from the University of Pennsylvania which I might have
mentioned before. The other thing about Penn – where I think I got a
wonderful education though not quite the way the school designed it – one
thing is that all of a sudden there was all this diversity. For the first times I
met a lot of Jewish people, for instance. I did know a few Jewish kids
before but I didn’t know they were Jewish.
The main thing that I did in college was debate, and I have always wanted
to debate. But we didn’t have a debate club at my school. So I learned
how to debate in college and I was really good at it. I also had this desire
to win a trophy, and I’d never done anything where you could win a
– 20-
trophy. And the debate trophies were huge, I would go away for the
weekend and come back with these huge trophies. It was just really so
cool.
Judge Cordell: Where are those trophies?
Professor Babcock: They were the school’s trophies; I earned them for the school; maybe they
are still in a case somewhere. Anyway, I fell in love with my debate
partner who was a Jewish person that I really knew well. He was a
brilliant man. We were a great team. He has been debating all along and
was really an expert debater, so he taught me a lot about technique. He
graduated from Penn in two years and went on to Princeton where he got
his PhD in classical studies. I used to take the train to go see him during
the week in Princeton from Philadelphia ..
Aside from debating, I had a good time on the whole in college. I formed a
wonderful friendship with a woman that I really grew to love, who is still
my friend, Rosemary Yaecker. Looking back on it again, I don’t know if I
would have done things so differently, but …
Judge Cordell: So … talk to us a little bit about Tom.
Professor Babcock: Maybe I should back up a little bit and talk about men in general. As I
was saying in high school, I had a boy friend. He was very sweet, but I
was never popular the way I wanted to be. My mother always said don’t
worry, every doggie has its day; the boys in college are really going to like
smart girls. See, I was always the smart girl which is not what you are
– 21 –
supposed to in the 50s. I was also ambitious and was going to have a
career too which is not what you are supposed to be either. In college I
was so disappointed because the boys were the same ones in high school.
They hadn’t changed at all. They still didn’t like smart girls. But Eddie
Cohen, my debate partner did. He really did, but he wasn’t a high status
love object. He had a Philadelphia accent and he didn’t dress right and he
wasn’t athletic, etc.
Then in law school, I finally had my day. But still there were a lot of men
who were very put off by my being there at all. But most of the men who
got to know me liked me a lot; and I had several boy friends. It really
wasn’t until I got out starting practicing law that I met a lot of men that I
liked. I mean, not a lot but some. I married a man who was a wonderful
trial lawyer, a professor and a public defender. Addison Bowman was his
name; and we were married for just under four years.
Judge Cordell: Was he at Yale?
Professor Babcock: No, no, that was part of the problem. He had gone to Dickinson and didn’t
quite have the good credentials that I had, but he could teach me about
being a trial lawyer.
Judge Cordell: Was he your age?
Professor Babcock: A little older, about four years older. I got married right before I became
the head of the public defender and divorced just as I was leaving the
public defender. I think I told you that . . . part of why I was ready to
leave Washington for what I thought would be awhile. I really love
– 22 –
Washington DC. I also have this feeling that it’s my hometown.
Practically every comer has memories– I defended a murder that
happened here, went to a place after the prom there. My mother used to
take us to the National Gallery of Art every Sunday. I lived all over the
city for almost ten years. Then I went back when I was Assistant General
for two years. I love the concentration of the town on one single object,
the government, and what the Washington Post said about it everyday and
how informed everybody is.
I came out here to teach when I was in my early 30’s and met Tom. Tom
said we first met when he came to interview me for a job at the public
defender because I was running the public defender. In fact, I told you
that there was a front page story in the Washington Post about how I was
running the public defender, that this young woman was hiring all these
absolutely top lawyers, very top of their class at Harvard and Yale. And
Tom was one of those. I vaguely remember it, but not really. The
interview didn’t last long because I was requiring that people make a three
year commitment. We did a lot of actual training before we gave anybody
a case, so they need to pay it back. He couldn’t because his wife, he was
married to a woman who was going to medical school at Stanford, so he
could only can stay a year. I don’t know how things would have been if
he had come that year, but anyway, he came out here to teach. When I
came here the next year to interview at Stanford, he interviewed me for a
– 23 –
job. I remember that interview very well because at that time he was in
his hippy phase. He was riding a motorcycle, wearing love beans and had
a beard. I was sitting in this interview in the old law school — we were in
the new building by the time you came, right? Or was it still on the Oval?
Judge Cordell: No, I was in the last class in the old law school.
Professor Babcock: I remember sitting in this room seeing Tom who was very cute, sandals
and the whole business. He took out a cigarette roller, and I thought he
was rolling dope. I thought my goodness, what kind of place is this? In
an interview he was rolling this joint, but it was actually a cigarette that he
was ·rolling, which was a California thing to do. He was married; and I
thought happily at the time. For the first six years·I was here we weren’t
together. Right before I went back to Washington to be an Assistant
General, we got together. He had split up with his wife and we got
together.
But then we were apart for two and half years while I was back in
Washington. When people tell me they are going to be apart from
somebody, I think at the beginning of a relationship is not so bad because
you write all these letters and say all these things that you wouldn’t say if
you were actually living through the events with the person day by day.
And when you do get together, you don’t fight because it would be a real
waste of time, so it’s a highly romantic way to get together. When I came
back from Washington, we got married, that was ’79, so it has been a long
– 24-
time especially for second marriages for both ofus. I retired three years
ago and Tom is going to retire this year. We are having a retirement party
in just a few weeks. I’m looking forward to this next stage where I’m
becoming a full-time writer and Tom is going to become a bird
photographer which is he very involved with. It’s been good; it’s been
really good to be here. The other thing that has happened to me is … I’m
not sure if I could live in the East now. I remember when I came out here
to interview, I came in October, the sky was so blue and Stanford looked
so beautiful. I actually thought Stanford was in San Francisco so that was
quite a shock to find that it was down here, but it was so incredibly
beautifu~ and I had the sense of why would anybody live anywhere else?
Now I remember a colleague said, once you become inured to the beauty,
you’ll find a series of intellectual deficiencies here. I just thought I’d
never become inured to the beauty and I never have ..
Judge Cordell: One last word about the Dinah …
Professor Babcock: Yes, one of the things I never expected because I never got around to
having children. I never actually decided not to, there wasn’t a moment
that I decided, but I never did. But I did have a step-daughter, a Stanford
Law graduate named Rebecca Grey. She has produced this marvelous
child Dinah. She doesn’t have any of my genes, but I just feel so close to
her and love her so much.
Judge Cordell: She calls you what?
– 25 –
Professor Babcock: Granny B. This child is a very modem child. She has six interested and
involved grandparents and numerous aunts and uncles. I’m holding my
own because I’ve been whispering to her since she was a tiny child; this is
Grandly B, your favorite. [laughter].
Judge Cordell: Well Barbara, I think this really is it.
Professor Babcock: Ok, yes. Thank you.
Judge Cordell: My pleasure, always my pleasure.
-26-