Third Session
October 23, 2018
Ms. Upadhyava: Okay it’s October 23rd, 2018, and this is the next session of the oral history of
Julia Penny Clark held at the offices of Bredhoff & Kaiser. I am the
interviewer, Moxi Upadhyaya, and Miss Clark is here. So we’re going to pick
up right where we left off, which is that you had made the decision instead of
going to Baylor to, which your mom made you tour, to go to UT Austin, and I
think that at the beginning of your college career you had considered studying
journalism but quickly pivoted away from that. Could you speak to a little bit
what it was like kind of this first, you know, first year or two at UT Austin
and how you ultimately landed on what you wanted to major in and focus
your studies on?
Ms. Clark: I don’t have a very clear memory of making the decision on the major. I took
some courses in the journalism school, certainly my first semester, maybe the
first two semesters and they just felt rather not academic, they felt more tradecraft.
And I was more interested in the academic side so I, what I don’t
remember at all was making the decision that it would be English instead, but
that’s where I moved my focus. I started taking more courses in the English
department. I also ended up with a double major in Spanish. I liked the
language and they gave me an opportunity to study Spanish literature as well as
just the mechanics of the language, and that was something I really enjoyed.
So I did the double major, English-Spanish, I worked through my second, third,
and…so I finished mid-year of my fourth year. So I was on a, I guess a
somewhat accelerated schedule. I stayed and took courses every summer. And
that made the difference in my being able to graduate a little bit early.
Ms. Upadhyava: And so this would have been December of ’68?
Ms. Clark: It was January of ’69. In those days, the exams weren’t until after Christmas.
They made that…
Ms. Upadhyava: For better or for worse.
Ms. Clark: …reform much later, yes. So, I, it was January ’69 when I graduated, and just
purely by happenstance, I ran across an advertisement, about that time, for a
bilingual secretary at the local Legal Aid office. So it was Travis County, the
county where Austin is located. And the advertisement said we need a secretary
who speaks Spanish to be both a translator and a secretary. And I had been
thinking I would go onto graduate school in English, after I finished my
undergraduate, but I was sort of tired of always having something to study
when I wasn’t working or in class. And I thought it would be nice to just take a
little time off and do a job that paid me a little more than I was making as a
typist for the doctors. So I went and applied and interviewed for that job. The
Director of the Legal Aid office who, I have a fairly clear recollection of his
face, interviewed me personally and said “You know, you’re terribly overqualified
for this job, and I know you won’t stay very long, but I really think
you’ll be good for us while you’re here so I’m willing to take a chance on you.”
And so he hired me and I was the secretary for three lawyers in their downtown
office, which was right in the county courthouse. And I stayed there for long
enough to decide I wanted to go to law school.
Ms. Upadhyava: Was this the first real interaction you’d had with the law, or total practice of
Ms. Clark: Yes. I had never, no one in my family had any background in the law, I had
never encountered anyone else except, you know maybe now and then I would
meet somebody who was a law student, but that was really my total exposure to
the law. So I started, you know, day one I’m typing away and they had a huge
docket of divorce cases and child custody cases and other domestic matters.
They had forms, pleadings forms that they would use like a form complaint and
a form judgement and the like. And I re-wrote them all because they just didn’t
seem like English and everybody was fine with that. So they started using my
forms, you know it had the substance in it, it was just re-worded so that it read
like English instead of legalese. And I did translations in the office, I had one
occasion when I was able to translate in the courtroom for a client who spoke
only Spanish. Typically, the courtroom translation was done by a full-time
investigator they had in the office who was a native Spanish speaker, and also
he spoke extremely good English, so he was the go-to person, but for some
reason or other he was unavailable that one day. So I got to be the courtroom
translator. Which went very smoothly until the lawyer for the husband who
was resisting divorce asked the client, our client, “And isn’t it true that you
were extremely nervous after the hysterectomy you had following the birth of
the twins?” And I go, oops, what’s the…
Ms. Upadhyava: What’s the word?
Ms. Clark: And I did the best I could and she understood me and she responded and
everything was fine. But that was a memorable moment.
Ms. Upadhyava: Medical terms weren’t covered in your Spanish major
Ms. Clark: No.
Ms. Upadhyava: So you worked for three lawyers and you said was it mostly civil cases, all
civil cases?
Ms. Clark: All civil. They did no criminal work. They had a few non-domestic relations
cases but not very many, it was just mostly divorces and child custody
matters and child support.
Ms. Upadhyava: How long were you at the Legal Aid office?
Ms. Clark: I started law school in September of 1970, so I was there about a year and a
Ms. Upadhyava: Okay. And one question I had about your studies at UT, why did you decide,
was there a particular reason that you were accelerating your studies such that
you finished about five months, six months, well I guess about five months
early? Or did you just want to be done with school and start working?
Ms. Clark: No, I think it was just that I was there during the summers. I had the job and
I didn’t want to give it up, the job typing for the doctors. So I was going to
be in Austin for the summers anyway and they had some good courses that
they offered in the summer. Some of the good professors would be there and
the classes tended to be a little bit smaller, and so I just enrolled in those
classes and got some more credits. It never sort of occurred to me, this will
necessarily mean you’ll graduate early or whether that was a good thing or a
bad thing, it was just natural to work through the summers and take classes as
Ms. Upadhyava: When you, is it safe to say that during your time at Legal Aid that’s when
you decided that you wanted to go to law school?
Ms. Clark: Oh, absolutely. Yeah.
Ms. Upadhyava: So what was it about the experience, if the two are correlated, what was it
about the experience that made you head in that direction instead of go to
graduate school?
Ms. Clark: I think it was that what the lawyers were doing seemed much more practically
useful than what I imagined I would be doing as an English graduate student
and ultimately an English professor, supposedly that would be the career path
that I would suppose I would have been following. And I’ve always had a bent
toward the practical. I like things that are useful. My major hesitation once I
started thinking about “I could do this and it’s more fun that what I’m doing
now” was that the women lawyers in Travis County at that time, there weren’t
many, there might have been three, were all doing divorce work. And while I
thought the law looked interesting, I could see enough of the divorce practice
that I knew I didn’t want to do that. It was highly repetitive. The whole idea of
form pleadings, for example. And so I gave a lot of thought to that, you know I
could go to law school, three years, I come out at the end and there’s nothing
there for me except being a divorce lawyer. And I ultimately decided I was
willing to take that chance and figure that maybe when I came out at the other
end I could forge my own path and do what interested me rather than just
divorce law.
Ms. Upadhyava: Did you speak to anyone at Legal Aid or elsewhere about the decision or was
there any particular person who was particularly influential on you at that time
to, when you made the decision?
Ms. Clark: I might have talked to one or two of the lawyers. They were young men,
they were a year, two years, out of law school. And it’s possible that I talked
to them about it, but I don’t specifically remember.
Ms. Upadhyava: So when did you start to take your, did you take the LSATs and start preparing
for that at some point?
Ms. Clark: I don’t remember when I took them, it was probably the summer before I
started law school, maybe the spring.
Ms. Upadhyava: And so how did you decide where to go to law school?
Ms. Clark: It was just kind of natural. I was living in Austin and I was there, it was in-state
tuition, it was a good law school. I knew it had a good reputation. And I was
fairly confident that I’d be accepted so I didn’t apply anywhere else, I just
applied to the UT law school. And the, it’s kind of interesting, my assumption
was I’ll do what I did in undergraduate school and I’ll work part-time while I’m
in school. And I went into the financial aid office after I got my letter of
acceptance saying it, and applied, saying you know, “I’d like to apply for any
financial aid that’s available to me” and they gave me the surprising news that
they really don’t like their students, their law students, to work especially not in
the first year. And I’m thinking, “You know, I don’t have a lot of savings,” I
had some, but secretary for the Legal Aid Society wasn’t being paid a whole lot
of money in those days.
Ms. Upadhyava: Or these days I guess.
Ms. Clark: And not, probably not even these days. And so I said, “well, I’ll apply for any
legal aid, I mean any financial aid you can give me” and they said “well we
have some one-year aid, we don’t have any, some one-year scholarships, we
don’t have any full three-year scholarships but we’ll consider you for whatever
you’re eligible for.” And then a few weeks later I got a letter saying I’d been
awarded a three-year scholarship.
Ms. Upadhyava: What? Amazing!
Ms. Clark: So I went back to the legal aid office on the day I was starting school to sign
up for this scholarship and get the first year’s check, and I met the woman who
was in charge of the financial aid office and she said “We had a donor, a
widow of a lawyer who lived in Beeville Texas” B-E-E-V-I-L-L-E just like it
sounds, “and she came to us and said she wanted to provide a three-year
scholarship for a student, and for a deserving student who was very good and
would need it”, and so we chose you. But when we told her, she said “Oh no
you can’t give it to a woman because she’ll never practice law! My money
would be wasted. She’s just coming to law school to meet a husband!” And
the scholarship office, to their credit, stood their ground and said, “This is the
student we’ve chosen, and we’re going to give her the scholarship.”
Whereupon the widow said, “Okay, then I’m gonna give you another identical
scholarship, but you have to promise me it’s gonna go to a man.” So they did,
they agreed, they awarded it to a man. And I’ve been married to him almost
38 years, yeah.
Ms. Upadhyava: Oh my gosh!
Ms. Clark: Yes!
Ms. Upadhyava: Okay, well that opens, okay that opens a huge line of questioning.
Ms. Clark: No it was, it was, I mean it was…
Ms. Upadhyava: Oh my gosh!
Ms. Clark: …such a coincidence, we met in law school of course, and so that was sort of
the initial link that brought us together, and…
Ms. Upadhyava: So did you, what was the name of the scholarship?
Ms. Clark: It didn’t have a name.
Ms. Upadhyava: Okay. What was the name of the lawyer and the widow?
Ms. Clark: I can’t remember, I wish I could. And I can’t even remember the name of the
wonderful woman in the scholarship office. She died that year, mid-year,
suddenly. She had wanted to take us down to Beeville to meet the donor in
person, and it never happened.
Ms. Upadhyava: So did you meet your husband as the, you know you were introduced
as the two recipients of this scholarship, or was it more of a, you met
in class, or?
Ms. Clark: Well, we each knew that the other existed. She told me his name, and I
promptly forgot it. So I went around just sort of wondering “Who is this man
who has this other scholarship?” He has a better memory for names than I do,
and he said, in modern terms you would say he stalked me for most of the first
semester. He was just sort of trying to figure out, which classes was I in and
what was I doing and so forth. And at some point in the spring semester, I was
in the law school canteen, I forget what they called it, but it was just a little
lunch spot. And I was sitting there between classes, maybe having a cup of
coffee, and this man sat down next to me and said, “I have to, I have you to
thank for the fact that I have a scholarship. I think I owe you a dinner at least.”
And we started talking and got to know each other, and before long we were
dating, and…
Ms. Upadhyava: That’s wonderful. And his name is?
Ms. Clark: William Bryson. Bill, for short.
Ms. Upadhyava: That’s, what a great story.
Ms. Clark: But, you know, we would have met even apart from the scholarship. Even
though it’s a big law school with fifteen hundred students, we were both on law
review and so that’s a much smaller group of people. We would certainly have
met in law review if nowhere else, but it’s still, it’s that she was so worried that
I was going to law school just to meet a husband and, which wasn’t the case,
but in fact it was her scholarship that brought us together!
Ms. Upadhyava: I wonder did she ever know that story?
Ms. Clark: No.
Ms. Upadhyava: What a great…
Ms. Clark: No.
Ms. Upadhyava: What a great outcome.
Ms. Clark: Because we never had a chance to go down and visit her and tell her.
Ms. Upadhyava: Well, you know in a way your, in a way the circumstances did, you know,
pave, allow someone else to go to school. So, that’s wonderful.
Ms. Clark: It was good. It was, but that was, that year was really kind of the, excuse me I
swallowed badly, the beginning of the women just kind of rushing, flooding
into law school. When I started in the fall of 1970, the class that had just
graduated, so May 1970 graduates, several hundred strong, because each
entering class had five hundred students in it, had one woman graduate. She
became a good friend of mine. My class was about 10 percent women.
Ms. Upadhyava: Oh wow.
Ms. Clark: And the following year there were so many women in the law school they had
to convert one of the men’s bathrooms into a women’s bathroom. So it really
just began at that point and was moving at a very rapid pace, expanding in
Ms. Upadhyava: I had no idea that the growth was that intense and that quick. Do you know
what it could be attributable to? At that time?
Ms. Clark: Well, the Vietnam War was underway, a lot of young men were overseas.
Although not so many when you think about it as a percentage of the total
population, it was not at all like World War II, where all the men were away,
and the women had to work in the factories. But, I think it was the
combination of just the, we’d gotten through the ‘60s, there was all of the talk
about women’s liberation and women being able to control their own destinies
and have careers, and I think it just began to settle in at that point. It seemed
like it was possible for us to do something other than be a teacher or a nurse or
a homemaker, or a secretary, and those jobs seemed very interesting.
Ms. Upadhyava: Your class must have been about 150 women then? If I’m doing the math
Ms. Clark: Well, 10 percent, probably about 50.
Ms. Upadhyava: Oh 50. Okay.
Ms. Clark: Somewhere in that range. I mean I definitely knew all the women in the
class. There were not so many that I wouldn’t recognize them all and have
a name to put to their faces.
Ms. Upadhyava: And did you ever rub it in Bill’s face that you got the scholarship
before he did?
Ms. Clark: No, no, no, I was just…everything I was grateful for it all the way it
worked out.
Ms. Upadhyava: You started dating you said around spring semester of your first year?
Ms. Clark: Summer.
Ms. Upadhyava: Summertime, okay. And what were the, what was the first year or two like,
anything that you recall being notable?
Ms. Clark: Well, here’s the funny thing I guess. I did, I loved law school from the very
first day. I liked the subject matter, I liked the way we were learning. I just
really got into it, and, but my first semester grades were the worst grades I’d
ever gotten anywhere. I’ve never gotten more than one B in a semester in my
life and that was on some really, really challenging class. I couldn’t
understand why I’d done poorly. So I went to visit one, maybe two,
professors to say I really want to really understand why my exams weren’t
better. And what I learned, which nobody had clued me into, was that the
exam writing process was totally different. So in English literature, if
somebody put a question to you, you choose what you think is the very best
answer and write a high-quality essay around it. So that’s what I did in law
school. Here’s a hypothetical question. I would choose what I thought was
the very best answer and write an essay around it. Instead of issue- spotting,
where you’re rewarded for saying, “Oh well there’s six or seven different
ways that you could look at this and explain each of them.” So whoever it
was that I talked to and I don’t have a very clear memory of the conversation
explained to me that this was the way law school exams were graded and I,
okay I can do that, so I proceeded from then on. I was at the top of my class,
and it was a very different way of going about writing, but I was successful at
it once I knew what to expect.
Ms. Upadhyava: When did you, what would you have done in the summers between your
first and second year and your second and third year in law school, if you
Ms. Clark: Let’s see. The first year, one of the lawyers I had known at Legal Aid had
gone into private practice and I worked for him and his partner as a
combination law clerk/secretary. So I did legal research for them, and I
typed for them, and that was a full-time job that summer, right there in
Austin. The second year I did what almost everybody on law review did,
which was to go to work for a big Houston law firm. And that was, the one I
worked for was Vinson & Elkins. It had more names in it at the time but it’s
the same firm. And I worked there for probably half the summer maybe a
little longer and did Law Review the rest of the summer.
Ms. Upadhyava: When did you, what was the Law Review process for how are people chosen for
Law Review? Based solely on grades?
Ms. Clark: That year I think it might have been solely on grades. The following year
and maybe both of the next two years, there was also a writing competition
that allowed people to compete for slots by doing research and writing.
Ms. Upadhyava: And you mentioned that Bill was on Law Review as well?
Ms. Clark: Yes. Yeah he was editor-in-chief and I was an editor of the student-submitted
pieces our senior year.
Ms. Upadhyava: How many people were in Law Review relative to the class itself, do you recall?
Ms. Clark: Probably a little under 10 percent. So probably, I’m thinking there might have
been 25 or 30 people who were actively working on the, maybe that’s, yeah, I
don’t think it was, it might have been. So maybe the editorial board had about
10 and then there had to be another 20 or 25 people who were on law review but
weren’t on the editorial board.
Ms. Upadhyava: I see. So…
Ms. Clark: But that would then represent two classes that would be both the second and the
third year of classes.
Ms. Upadhyava: Did you enjoy Law Review?
Ms. Clark: I did. Yeah, I always liked writing. And so you know, the first year on law
review, so my second year in law school, I wrote and blue-booked things,
like all first year Law Review people do. And in my, and then the third year
of law school I was on the editorial board and also wrote a longer piece
which was on a labor law subject, which grew out of a seminar that several of
us took on labor topics. And we ended up publishing three student-written
long pieces in one issue of the Law Review out of that seminar.
Ms. Upadhyava: And was your piece one of them?
Ms. Clark: Mine was one of the three, yeah. Bill’s was another one and then there was
another one, by two friends of ours who collaborated on a piece.
Ms. Upadhyava: What was Vinson & Elkins like?
Ms. Clark: I enjoyed it. They made a big point of introducing me to their woman
lawyers, but they didn’t have many.
Ms. Upadhyava: Yeah I was going to ask how many were there.
Ms. Clark: I think there were two at the time and the firm may have had about 150
Ms. Upadhyava: Okay.
Ms. Clark: And that’s how I met the woman who had graduated just before me. She was at
Vinson & Elkins at the time. But I had a really, I guess for most of the time I
was there, I was working on research for a particular piece of litigation and so I
was working with the same small team of lawyers and doing research on
connected topics for practically, if not entirely the whole time I was there, it
may have been the whole time. But I was working with a very talented lawyer
named Harry Reasoner who was a middle-range partner in those days, but was
one of their superstars and it was fun to work with him.
Ms. Upadhyava: Did you get a chance to sit in on any depositions or hearings?
Ms. Clark: I don’t believe so. I think I was just entirely in the office.
Ms. Upadhyava: And you liked the process of researching and being in that environment?
Ms. Clark: It was, yes. It was challenging and fun and interesting to do it on somebody’s
real case instead of more hypothetical, theoretical things.
Ms. Upadhyava: What did Bill do for that summer?
Ms. Clark: He worked in O’Melveny’s office in Los Angeles.
Ms. Upadhyava: So you were apart for part of the summer?
Ms. Clark: Yes.
Ms. Upadhyava: Okay. And at this point in your law school career, did you have a sense of
what you wanted to do after you graduated?
Ms. Clark: We were both focused on clerkships as most Law Review students were in those
days. So we were thinking about going for a federal appellate clerkship the
following year. Not thinking much about what would follow that, it’s just,
that’s the next step.
Ms. Upadhyava: Was that considered to be the step that one would take if they were at the
top of their class on Law Review, clerkships…
Ms. Clark: Sure.
Ms. Upadhyava: …even if they weren’t necessarily interested in litigation?
Ms. Clark: Yes. There were relatively few people who were at the top of the class who
didn’t apply for federal clerkships. I think of one woman, but she already had
small children, so it may be that it was her choice to go directly into practice at
that point.
Ms. Upadhyava: So was the process of, what was the process of applying for clerkships like
when did you do it and how?
Ms. Clark: It was in the summer. I came back from Houston and had a resume printed and
I was getting ready to put them into envelopes and send them out when I got a
call that came down to the Law Review office from Professor Bernie Ward
who was one of the two federal civil procedure gurus at our school. We had
Charlie, Charles Alan Wright and Bernard Ward. And I had taken my federal
courts class from Professor Ward. So I’m thinking, well that’s okay I’ll go up
and talk to him. Maybe he wants to have something published in the Law
Review. So I walked into his office and he said, “I have a clerkship for you if
you want it.” And he said, “I have a very good friend who’s a judge on the
Fourth Circuit, Braxton Craven, and I talked to him about you while I was at
the Fourth Circuit legal judicial conference last week and your clerkship is his
if you want it.” Mainly I had the same reaction you had, mind you, my jaw had
dropped. And I said, “Well let me give this some thought.” So I, at that
moment, a woman who had graduated the year before was clerking for him.
And so somehow or other I got her phone number and I talked to her and I said,
“Is this the clerkship I should want?” And she said, “Oh yes, of course.”
Which she probably would have said no matter what but that’s fine. And so
without ever sending out a single application, I got this clerkship and after I got
to North Carolina, where Judge Craven had his chambers in Asheville, which is
a beautiful place to spend a year. He said Bernie, as he called him, he was very
close friends with both Professor Ward and Professor Wright, and he said,
“Bernie has highly recommended you, he said you write like an angel.” And
somehow or other I had occasion to repeat that to Professor Ward who said, “I
never said that. I said you write as does an angel.” Now I don’t know how he
thought an angel would write, but that’s fine. Apparently I had written an
exam in his federal courts class that he was quite impressed with and so that’s
how I got the clerkship. So it wasn’t much of a process for me as it turned out.
Ms. Upadhyava: That’s really remarkable. You must have left an impression on Professor
Ward. Did you know that he was, did he know that you were interested in
Ms. Clark: He probably assumed it because that or perhaps I had gone up to him and
asked him if he would be willing to be a reference for me, I can’t remember
now for sure.
Ms. Upadhyava: At what point did you meet Judge Craxton?
Ms. Clark: Craven.
Ms. Upadhyava: Craven, sorry.
Ms. Clark: Braxton Craven.
Ms. Upadhyava: Craven.
Ms. Clark: I met him when I showed up for my first day on the job. Actually he wasn’t
even in the office on the first day. It was about a week because he was, he
always spent about a week at Wrightsville Beach in Wilmington, North
Carolina in the summertime and he was at the beach when I showed up, so it
was about a week before I ever met him.
Ms. Upadhyava: And did he have, so he’s on the Fourth Circuit, would he have had four clerks
at that time or two?
Ms. Clark: Only two.
Ms. Upadhyava: Okay. And did you and your co-clerk begin on the same day or did he
stagger his clerkships?
Ms. Clark: You know I think we started on the same day. It’s possible. The other clerk
was named Jim Dean Cooley. He might have started before I did, but he was
there when I started.
Ms. Upadhyava: Well, I definitely don’t want to skip over years three and your graduation, but
I guess kind of going back to wrapping up law school, what was Bill doing at
the time and were you sufficiently serious that you both were considering
what the future would look like for you?
Ms. Clark: Well we had had some just sort of idle conversation about wouldn’t it be nice if
we could find clerkships in the same city. But once I got this offer in North
Carolina, that just wasn’t going to be possible. Although I think Professor
Ward said, “I also know Clement Haynsworth and if Bill would be interested in
his clerkship, then I’d be happy to recommend him to Judge Haynsworth.” But
Bill had his application in at the time for Judge Friendly and had gotten an
interview and he was ultimately hired by Judge Friendly. So that was clearly
the right place for him to go, was to spend the year with Judge Friendly. So and
we wouldn’t have been in the same city anyway. Judge Haynsworth was over
the mountains in Greenville, South Carolina. But we would have been closer,
two hour drive instead of a flight.
Ms. Upadhyava: Yeah, right.
Ms. Clark: But definitely he made the right choice. Judge Haynsworth was a lovely
man but the experience clerking for Judge Friendly was, I think, a much
higher level of both challenge and a learning experience.
Ms. Upadhyava: So you’re, so when, if there’s anything you want, particularly remember about
your third year, but because I’m curious to know at that time was anything
taking shape as to what you wanted to do after your clerkship or still just kind
of gearing ahead towards the clerkship?
Ms. Clark: I was focused toward the clerkship and somehow had gotten into my head that
I should apply for a Supreme Court clerkship but I didn’t really, I don’t think I
had any real sense of what that process was like or how many law students all
around the country were applying. But I had, that seminar on labor law had
certainly made me more interested in labor law than many of the other things.
I was definitely focused on federal subjects. The UT law school offers a widerange
of classes in Texas-based subjects, oil and gas law for example, and
Texas civil procedure and I took none of those. I really focused on the federal
subject matter. And so it was just, it was a good year. It was very intense,
both being on the Law Review and keeping up my studies for my classes and
writing the major paper that ended up being published. But I will tell you one
other incident which has to do with the attitude toward women at the time.
The three big Houston firms did heavy recruiting of the Law Review people.
It was hardly a weekend that would go by that you couldn’t get at least one
free dinner off them. Anytime any of their people were in town they’d invite
the law review, particularly the editorial board out. Sometimes small dinners,
sometimes huge dinners. There was one really big dinner which I remember
in a hotel ballroom. And they had us sitting at tables with maybe eight people
per table with one of the partners at each table and this partner was presiding
over his recruiting dinner and he started going around the table and asking
each of the men what kind of law they thought they would practice. And you
know, each of them was answering and he got to me and he said, “So, do you
intend to practice law or are you just…” and he caught himself before he
finished the sentence and one of my classmates came to the rescue and said,
“Oh she’s putting all of us to shame. She’s at the top of the class.” And he
kind of corrected himself and proceeded to “so what kind of law do you think
you’re going to practice?” It was a very telling moment and one other thing
from one of those dinners, which was another mass dinner, maybe it was the
same one, in the ladies room, there was a young woman who was at that firm.
And she was just gushing about what a great place it was to work that she was
allowed to work on anything that the men worked on except she couldn’t work
late at night because the partners’ wives got jealous. And I thought you mean
to tell me if there’s a project that requires late-night work, you’re not allowed
to work on it? And you’re saying that you have all the same opportunities that
the men do? It was enough to persuade me that Houston wasn’t a place that I
wanted to practice law. It was just very definitely not along the lines that I
had envisioned for my career.
Ms. Upadhyava: And the fact that that didn’t occur to her…
Ms. Clark: …that it was maybe a negative.
Ms. Upadhyava: …that was something remarkable, right?
Ms. Clark: Yes.
Ms. Upadhyava: Right. Right. Ms. Clark: It was surprising.
Ms. Upadhyava: So do you, how was graduation? Did Bill meet your family?
Ms. Clark: We both skipped graduation.
Ms. Upadhyava: Are you kidding me? Okay.
Ms. Clark: It was sort of like, no, but we had met each other’s families before then so it
wasn’t like graduation was going to be the occasion for that. No, we skipped
graduation, and looking back on it, I should’ve done it for my parents. I wish I
Ms. Upadhyava: Any particular reason you skipped?
Ms. Clark: I think we were both just in the mode of we’re done with this and ready to
move on and somehow the ceremony seemed gratuitous. It didn’t mean
much to us but I’m sure it would’ve meant a lot to my parents. I’m sorry I
Ms. Upadhyava: Yeah. What did you do the summer before you started your clerkship?
Ms. Clark: I worked with an organization called CLEO which provided a kind of head
start for minority and low-income entering law students. It was in Houston
and it was an intensive summer program that was designed to give them an
introduction to what they needed to know for law school.
Ms. Upadhyava: I think it actually still exists.
Ms. Clark: I hope so.
Ms. Upadhyava: It sounds very, very familiar. I think it does actually, or it did when I entered
law school because I recall, is it, was it something like a week-long or few
weeks long program?
Ms. Clark: It was longer than that. I think about a month. It could have been longer but
because I know I was in Houston for several weeks at least and it was housed
at the University of Houston Law School. And I and one other, yeah one other
law student, a woman who was in the class behind ours was also working there
that summer and we taught legal research, legal writing, that sort of thing, sort
of like there were actual faculty members who were involved but the really
young ones basically and they had at least the two of us students recent
graduates who were like teaching assistants, and so we worked with the group.
Ms. Upadhyava: Now when you got out of law school, did you see what, was there a big change
in terms of how many women were going to law school? Kind of, I guess what
were your observations about what female attorneys were doing at that time as
opposed to when you went in which was you said there was a really small
number of women who were practicing divorce law in Austin?
Ms. Clark: Well certainly, there were a lot. I mean my class, the bulge hadn’t yet gotten
through the snake. When I was in Houston, I did see there several women who
were practicing at a very high level and I guess I took some encouragement
from that thinking okay it is going to be possible. I’m not going to be
necessarily relegated to just divorce work. But I hadn’t yet encountered a lot
of other women lawyers. You did sort of in that contained environment of the
law school. I don’t, other than the classmate that was with me in Houston, I
don’t remember any other women in the CLEO program that summer.
Ms. Upadhyava: I see. So when you left for, or I guess when you started your clerkship in
Asheville, what was, that was really the first time in several years you’d lived
outside of Texas, right?
Ms. Clark: Yes.
Ms. Upadhyava: And was your family still in Waco at the time?
Ms. Clark: They were.
Ms. Upadhyava: Okay. And if you could describe for me what the clerkship process was like
for you, what the judge was like, and how, if at all, North Carolina was
different from Texas in a sense of how many women were practicing law?
Ms. Clark: I don’t think I was exposed to any other women practicing law other than
the judge’s wife. And she was working in, I think, the US Attorney’s
office there.
Ms. Upadhyava: No other law clerks that were?
Ms. Clark: No, we were the only appellate chambers in Asheville. There was a district
court judge but he didn’t have any women clerks. And I don’t remember any
other women clerks in the Fourth Circuit group. We all gathered in Richmond
for a week out of every month for arguments and socialized with the other
clerks there and I don’t believe there were any other women in the group. I
think I was the only one. But in North Carolina was, it’s a, I mean, Asheville
is a city that has a lot of retirees even at the time it had a lot of retirees. It was
not nearly the cultural oasis that it is now. It’s quite a fine city now.
Ms. Upadhyava: I’ve heard really nice things about it.
Ms. Clark: But at the time, the downtown area was really kind of empty, a lot of vacant
storefronts and the like, now full of craft shops and coffee shops and it’s
really quite a good place and the judge was wonderful to work for. He was a
man with a big heart, big personality, very smart, good lawyer. He wanted
his opinions to be researched and written well, and he had a, I mean if you
think of Senator Sam Ervin I don’t know if you had enough, I mean he came
across a lot like Senator Sam.
Ms. Upadhyava: From Texas, right?
Ms. Clark: No he was North Carolina, too.
Ms. Upadhyava: Okay.
Ms. Clark: He was also from the mountains and in fact was sort of a mentor for Judge
Craven. So he was I mean, and that was before North Carolina turned quite so
politically conservative. It was more, Judge Craven was a very politically
liberal judge as were most…certainly about half of the judges on the Fourth
Circuit were then. The Circuit veered very conservative for a while and then
back to more liberal and now I think it’s sort of middle. But Judge Craven was
one of the more liberal judges on the circuit.
Ms. Upadhyava: What had he done in his career as an attorney?
Ms. Clark: He was a prosecutor, he was a state court judge, and he was a federal district
court judge.
Ms. Upadhyava: So, could you tell how, if at all, his, I guess mindset, about women attorneys
had been shaped by the fact that his wife was a prosecutor I guess?
Ms. Clark: He was, I mean, I just, I never thought of him as treating me any differently
from the male law clerk. We were all kind of a happy family in chambers, we
worked together, apart, we socialized together occasionally, not all the time,
but yeah I didn’t feel like there was any, that he treated me any differently
from his male law clerk. He, I went, I came to Washington to interview for
Supreme Court clerks, clerkships, almost immediately after he’d met me. So
maybe a week he’d known me, and Justice Powell called him for a reference,
and I guess I got this story from Judge Craven, he said Justice Powell asked
him was I the kind of woman who would get along with the women secretaries
in the office, and Judge Craven said, “Oh absolutely, she’s already fast friends
with my secretary and my junior secretary.” He had a senior and a junior
secretary. And he said that Justice Powell asked him, “Is she the sort of
woman who’s going to break down and cry if things get tough?” And Judge
Craven said, with absolutely no factual basis for this, “No, she’s not afraid of
anything, she’s absolutely tough.” Bless his heart, because Justice Powell
hadn’t had any women law clerks before that.
Ms. Upadhyava: Really? Okay.
Ms. Clark: And I was his first, so, he had a daughter who was a lawyer. So he knew
that women could be lawyers and I won’t say whether he had practiced
with any at Hunton & Williams, he might have, but at least, and he was
definitely inclined toward hiring his first woman clerk. But obviously he
wanted to make sure that I wasn’t going to be, either the kind of person
who was going to treat his long-time secretary like trash or something like
Ms. Upadhyava: That’s understandable.
Ms. Clark: Or that I wasn’t going to be somebody who would not bear up under the
necessary pressure of getting things done. So it was, I’d thought Judge
Craven deserved real blessings for having gone out on a limb for me
that way.
Ms. Upadhyava: How did your application get to Justice Powell? Were you generally applying to
all Supreme Court clerkships that were open at the time?
Ms. Clark: I think I applied…I did not apply to the Chief Justice, I did not apply to Justice
Rehnquist….and I may not have applied to Justice Douglas. But I think I
applied to everyone else. And the, I mean, Justice Rehnquist was sort of
regarded as the far-right on the Court. I knew enough about, I guess I’d heard
some rumors that the Chief Justice’s clerks didn’t get to mingle with other
clerks, which turned out to be true.
Ms. Upadhyava: Who was the Chief at the time?
Ms. Clark: Burger.
Ms. Upadhyava: Okay, right.
Ms. Clark: And there were always rumors about how badly Justice Douglas treated his
clerks so I think those were the ones I did not apply to. I interviewed with
Justice Powell and Justice White, but no one else. And Justice Powell offered
me a job almost immediately after the interview.
Ms. Upadhyava: What was the interview like?
Ms. Clark: He asked me what my SAT scores were. And fortunately I still remembered
them, I don’t now, and he asked me some questions about the kinds of things I
had done in law school and what my interests were, and I don’t think he, I
mean Justice White kind of quizzed me on subject matters, I remember that, I
don’t remember specifically what they were, but I do remember coming away
with the thought that I’d just had an oral exam. Not the case with Justice
Powell. But he definitely wanted to sort of get a sense of what kind of person
I was. He also had his clerks interview me, which he did with us as well the
following year, had us interview his candidates for the next year’s clerkship.
But he also knew Professors Ward and Wright. And toward the end of the
year, his secretary showed me the file that had the correspondence from when
I was hired. And in it he had written to Ward and Wright and said, “I’ve
interviewed Penny and I’ve interviewed Bill, and I’m trying to decide which
of them I should offer a job to.”
Ms. Upadhyava: Your Bill?
Ms. Clark: My Bill, yes.
Ms. Upadhyava: Oh, wow.
Ms. Clark: And Professor Wright wrote back, “Hire them both.” And Justice Powell
said, “No, I don’t really think I want to have two clerks from the same school.
But I think it’s time I had a woman law clerk.” And so he picked me. Bill
was hired by Justice Marshall. So he clerked for Justice Marshall the same
year, so we were in the building together there working.
Ms. Upadhyava: Wow. What a remarkable process.
Ms. Clark: Yes. It really was. And I mean Justice Powell certainly didn’t have a strong
dependence on any small group of professors to send him clerks, nor did he
have any kind of a pipeline from Court of Appeals judges at the time. He
might have developed one in later years, but I was just fortunate. I was in the
right place at the right time and had professors that both of these judges
respected, and had managed to make a good enough impression on both of the
professors that it served me well.
Ms. Upadhyava: I’d say. How was, when you were clerking on the Fourth Circuit was it, did
you ever see, and I guess you’re watching all the oral arguments for the cases to
which you were assigned. At this point, are you thinking that there’s a
particular avenue that you’d like to pursue?
Ms. Clark: I think all appellate clerks fall in love with appellate law and think how much
fun it would be to be the one arguing there. And of course it’s a skill that just
comes quite naturally, both writing briefs and arguing. You can easily imagine
yourself doing both of those things. There were not at the time any mock trial
programs that I know of. There were moot courts, of course, but I don’t think
very many law students came out of law school with trial skills unless they had
worked in a clinical program of some sort. And there wasn’t even a lot of that.
Most law schools were really just academic. And so making the transition
from law school and even clerkship to trial work would be a good deal more
challenging. District court clerkship, you would learn something about how
good lawyers try a case, you hope.
Ms. Upadhyava: I hope. Well having done one myself, I’d say I definitely learned about what
not to do. That list grew very long in the 18 months I was clerking on the
district court. Were there many women arguing in the Fourth Circuit at the
Ms. Clark: I remember one in particular who was there several times for the Department
of Labor, Wage and Hour Division. And she was very good, she really knew
what she was doing. She knew both her subject matter and she knew how to
make a good oral argument. And every time she came back I was very
impressed with her performance. I don’t remember any others, she’s the only
one that stands out.
Ms. Upadhyava: How did you get along with your co-clerk?
Ms. Clark: We were good friends. We got along very well.
Ms. Upadhyava: Did you feel, given that you were the only female clerk, was there anything
really in that insular environment of the court system, and I guess I’m speaking
about the whole Fourth Circuit group of clerks, anything remarkable or
anything that you remember as being something of note, kind of being a female
clerk in that environment, or the only female clerk in that environment?
Ms. Clark: No, I don’t really. There’s nothing out of the ordinary that happened. I was
just doing my job like the others.
Ms. Upadhyava: When did you take the bar exam?
Ms. Clark: After my Supreme Court clerkship.
Ms. Upadhyava: Okay. I was wondering when you fit that in.
Ms. Clark: Yes, no, because, I worked the summer after I finished law school. And then I
didn’t take the bar exam then, and I worked on the Fourth Circuit right up until
I started here. So there was no time in between there and definitely not while I
was clerking.
Ms. Upadhyava: What was the Supreme Court clerkship like? Did you and Bill start at the same
Ms. Clark: No, he had the good fortune of getting to the Court before the Nixon tapes case
was decided. Maybe even before it was argued, and I came in after it was over.
So, I missed out on the Nixon tapes case. But we had plenty of interesting law
that year. It was very intense. There were four law clerks, Justice Powell was
one of a few Justices who took the option to expand to four that year. So he
had originally hired three clerks, they got the budget for a fourth and he added
the fourth clerk after the other three of us had started. And so we were kind of
crammed into chambers, there wasn’t a lot of space, but it’s a beautiful
building, it’s a wonderful place to work. The library, not only is it just
physically a beautiful facility, you could go up there and there’s like a balcony,
that has all the state law, that’s a little bit above the main floor of the library.
And there was at least one occasion that year that I was, I found it necessary to
look at the state law on something in every state. And I just made the rounds
of the balcony. There was another time when I was doing research and
drafting an opinion on a Fourth Amendment issue that went back to the history
of search and seizure law in England. And I asked the librarian for a copy of
“Coke,” or Blackwell – one of those that gets cited in all the really old, old
cases. And within a couple of hours, the library attendant trundled up to my
office with this book cart with a leather-bound book that was about two and a
half feet long and about 18 inches wide that had, as I was using it, in between
the pages I found a piece of a Philadelphia newspaper from the early 1800’s
that somebody had used as a bookmark. It was like I was using, I was sitting
there doing my historical research in the real thing. They had borrowed this
book from the Library of Congress, which was just next door. They had an
arrangement that if there was something that wasn’t in the Supreme Court’s
library they would borrow it from the Library of Congress. I felt like I needed
white gloves to handle that book. It was just amazing. And Justice Blackmun
had breakfast with his clerks almost every morning in the court cafeteria and
other clerks were welcome to sit down and join them, and that’s where I had
my breakfast most mornings is with Justice Blackmun and his clerks. The
cafeteria was open for lunch as well, so I was getting two meals a day right
there in the Court cafeteria. I lived on First Street, just across the street from
the Court. I had just very fortunately gotten a basement apartment in a row
house. It was so close that the guards could watch me walk home at night.
And it was always at night. But that was an apartment that was sort of handed
down from one Supreme Court clerk to another as the new year turned over.
And so I didn’t have to waste any time commuting, it was a two minute walk.
Ms. Upadhyava: What were the hours like?
Ms. Clark: Oh, as long as you can stand. It really, there was a lot of work to do, and there
were deadlines coming in because they’ve got to have oral argument and the
Justice has to be ready for oral argument. He wants to know what’s in this
case. He read the briefs himself, of course, but in terms of, is the law that the
parties have presented a thorough and accurate description of the state of the
law? Do these arguments make sense in the context of the Supreme Court’s
other cases or, if it’s a matter that the Supreme Court has never considered,
what about the Court of Appeals cases, how do they break out on this? And a
lot of think pieces. So early on, there were I think four cases before the Court
that term that involved women’s rights, so it was discrimination against
women. Ruth Bader Ginsburg argued two of them.
Ms. Upadhyava: And Title 7 would have been five years old, six years old? No. I’m sorry.
Six years.
Ms. Clark: About. It took effect I think in ’76.
Ms. Upadhyava: Oh, okay.
Ms. Clark: So it was…
Ms. Upadhyava: Why do I have…
Ms. Clark: No! It was ’66.
Ms. Upadhyava: ’65.
Ms. Clark: ’65-’66, I got it. I’m a whole decade off. Right so it was about eight years
old at that time.
Ms. Upadhyava: Okay.
Ms. Clark: Because this was the ’74-’75 term of the Court, but these were constitutional
cases. So one of them was Weinberger v. Weisenfeld, which involved a
widower whose wife had died in childbirth, and he was raising his son and
was denied the Social Security benefit that a man would have gotten if his, no,
that a woman would have gotten if her husband had died. And so that was one
of the cases that was briefed and argued. There were…
Ms. Upadhyava: That was Justice Ginsburg’s argument right?
Ms. Clark: Yes. argument before the Court?
Ms. Clark: No, she had been there before.
Ms. Upadhyava: Okay.
Ms. Clark: There were a couple that involved jury service, excluding women from juries.
And the other one was Schlesinger v. Ballard, which was giving women in the
military more time to qualify for promotion. And so Justice Powell was, his
view of this was, yes women should have, they should be free from
discrimination solely because they’re women. He was inclined to think that
there were certain things that men had a natural advantage over women on, like
Major League Baseball, sensible things like that. But he was not at all willing
to give up on the idea that women could have greater protection than men, and
that was something that, the drive at that point was from, to some extent, men
trying to get the advantage of the kinds of protections that the law had provided
for women. So for instance in that, before Title 7 and probably even after, you
would often find state laws that would say “women employees have to have
extra rest periods.” So, you know they’re treating us like delicate flowers, and
so of course we have to be permitted to sit down and take a rest somewhere in
the middle of our shift of work and those were called protective laws. And
while Justice Powell wanted not to limit women’s opportunities, he also didn’t
think that they should necessarily lose these special protections. And so he
asked me, probably in the summer before any of the cases started to be argued,
to give him a memo that would help him think of a way to work through these
cases that were coming up in the term that he would be comfortable with, both
not limiting women’s opportunities, but also not taking away their protections.
And that ended up being something that was very important to him in the
Weinberger v. Weisenfeld case. His vote wasn’t decisive as it turned out, there
was a large majority in favor of this young widower who needed the money
from Social Security to raise his son, but Justice Powell, he went from initially
thinking, “well of course women should get support payments when their
husbands die, because women are going to have a hard time making a living
and men will of course always work,” to realizing that this scheme of Social
Security was actually denying the woman equal benefits based on the work and
the contributions she had made into the system. And to realize that as a
woman who was working would have to buy life insurance to make up the
difference, that a man would otherwise have for the very same Social Security
contributions. And that ended up being his rationale for concurring with the
judgment of the Court. So, we were doing all of those things, we were reading
the hundreds of cert petitions that come through, and trying to advise on which
presents an issue that’s really worth the Court taking its time on, preparing for
oral arguments. And the Court’s caseload was much greater than it is now.
Ms. Upadhyava: Oh really?
Ms. Clark: The Court used to grant a lot more cases. So I think it was, they would hear
four arguments a day, three days in argument weeks. Now they hear two a day.
So the caseload has effectively been cut in half from what it was then. We were
working on helping him prepare for arguments, once the arguments started,
then we were helping him judge to vote with you on your opinion. And also
doing these kinds of long-term think pieces like, later in the term we’re going to
have a cluster of cases about this so help me think about those in advance and
the workload was very, very heavy and it was quite intense.
Ms. Upadhyava: So the think piece that you did on the women’s issues, did you approach that
like a legal analysis type of piece or more policy directed?
Ms. Clark: Well, both really. To say, here’s what this Court’s cases so far have done on
the subject, and I think there was one or maybe two prior cases that, now
Justice Ginsburg had done that had established sort of the beginnings of the
principles that the Court was applying in the field of women’s rights. And so it
was, you take these, and what is a sensible way to read those cases and apply it
to the variety of other issues that may be coming along? So it was partly
thinking in an imaginative way of what are the other issues that are out there,
besides these four case that the Court had for that term. And how can you
reach a result that you would be comfortable with based on this law, and all of
these possible ways of applying that law.
Ms. Upadhyava: Who were your other co-clerks?
Ms. Clark: One of them is Joel Klein, who later became the Chancellor of the New York
City school system and worked in the Clinton White House screening judges
and probably doing a number of other things. I think he was in the White
House Counsel’s Office for a large part of Clinton’s presidency. David Boyd
who has practiced here in the district….I’m trying to think what the name, you
would recognize the name of the firm if I could remember the name of the
senior partner of the firm but it’ll come to me. [Boies, Schiller] And the other
one was Ron Carr who was an incredibly brilliant lawyer from the University
of Chicago law school who really, really had the mind for the law and
economics model, and went on to practice antitrust law. But he died young, so
there’s only three of us left. It was a good group, really smart, capable
Ms. Upadhyava: Were you all working 7 days a week?
Ms. Clark: Seven days a week, probably…the other three were all married, the men were
married. I had the advantage that my romantic interest was right there in the
building with me working the same hours I was, so there was not much of a,
other than now and then the two of us would just decide we really need to get
away from here for an afternoon or something, go for a drive. One of my
husband’s interests is astronomy and I remember once we wanted to go out
and look at the stars. I guess we had reason to think it was going to be a clear
sky, and Justice Powell lent us a pair of binoculars. He said, “Stop by my
apartment, I’ll lend you the binoculars.” And it was a leather binocular case
that, these were his binoculars when he served in the Army in North Africa in
World War II, so it was “Lieutenant Colonel Lewis F. Powell” engraved on
this case.
Ms. Upadhyava: Being trusted with these!
Ms. Clark: Yes! Well, we did return them in good condition, we didn’t break them. So we
occasionally got away for an afternoon drive in the country or something like
that, so that we weren’t 24 hours a day. But it was very intense. I would go
over to the Court in the morning, most mornings 7:00 probably. And we would
leave the building briefly around 6:30-7:00 and get something for dinner.
Usually just right on Capitol Hill, there was a place called the Tune In
and…there was one other place that was open for dinner where you could just
get a hamburger or something. And then go back to the Court and work until
you just couldn’t stay awake any longer. So, and then I would just walk across
the street and fall into bed and just sleep as long as I could and wake up the next
morning and do it all over again.
Ms. Upadhyava: What was, for you, the most memorable case of that term, that you
worked on?
Ms. Clark: Probably the one that sticks in my mind most, it was a labor case. It
was Connell Construction Company. They’re from Texas so they
pronounced it Conn-ell, C-O-N-N- E-L-L Construction Company
against the NLRB and I think it was a pipe fitters union that had, they
refused to work on a job unless the general contractor made sure that
certain other jobs were being done by union labor, and the National
Labor Relations Board had said you can’t do that and the Supreme
Court affirmed that ruling. There was also an antitrust issue in that
one, and the opinion that I ended up drafting, sort-of, I thought of it at
the time, now I go back and read it and I think there’s nothing
particularly remarkable about this, but it was, at the time I thought of it
as sort-of carving out a different way of dealing with what we call the
labor antitrust exemption, which is a doctrine that says that a labor
union is not the combination or conspiracy in restraint of trade and
there are certain things that labor unions can do without being in
violation of the antitrust laws. To some extent, that exemption is
squarely required by the Norris-La Guardia Act, but not completely,
and it is largely, in addition to that, a creature of court-made law, and
this was dealing with the scope of the court-made side of that
exemption. So, I remember it because it was a labor case, because I
struggled mightily with trying to find a rationale for the Court’s
decision that would be sustainable and defensible. And after I came to
work in this law firm on the union side of labor law, I, someone
pronounced to me, a very, very smart lawyer who was then General
Counsel of the AFL- CIO, that is the most vicious opinion I have ever
Ms. Upadhyava: Did he know that you were, that you had worked on it?
Ms. Clark: Well, that was why he had made that remark. Yes.
Ms. Upadhyava: Oh, I see.
Ms. Clark: No, when he found out, he said that is the most vicious opinion I’ve ever read.
Ms. Upadhyava: At what point during your clerkship were you starting to give some thought
to what the future was going to look like after that year was over?
Ms. Clark: Too late, according to Joel Klein. I was being remarkably uninterested in what
was going to happen the following year.
Ms. Upadhyava: I take it, I’m sorry to interrupt, I take it you were clerking from August to
August or August to September?
Ms. Clark: That’s pretty much it. Yeah, pretty much August to August. And I was the
one clerk in chambers who had some labor law interest and background and
this was true in the Fourth Circuit as well, both of my clerkships, I was the
clerk who got all the labor cases because I was the one who was interested
and had the knowledge. So I was doing a fair amount of labor and laborrelated
work, and Joel who just kept fretting because I wasn’t thinking about
what I was going to be doing after the clerkship was over. The law firms and
the law schools were recruiting. Anytime they had a chance they would show
up and they were allowed to meet with clerks, they would be there and they
were all very eager to hire women at that point and I figured there’ll be a job
for me, you know, I’ll find something interesting and I was so focused on
getting the work done because there was so much of it. But Joel one day said
I’m worried about you because you don’t have any plans for next year. He
said, I have a friend in a union-side labor firm that’s a really good firm and I
think you ought to meet him. And I said okay, that’s fine, why don’t you
arrange for that. So, Joel took me to lunch with a lawyer who was then in this
firm and I liked what I heard and I said well, that’s very interesting. When I
finish clerking I’m going to go back to Texas and take the bar exam in
October, they had an October bar exam, may still, but they did it three times a
Ms. Upadhyava: Oh, yeah. That’s kind of odd timing.
Ms. Clark: …very odd timing, but it was perfect for me because it meant I could take
some time off after the clerkship, recuperate…
Ms. Upadhyava: You mean like a week?
Ms. Clark: I actually took longer than that…
Ms. Upadhyava: Oh you did? Okay.
Ms. Clark: …and then take the bar exam, I mean the bar prep course, and take the bar
exam and I said, I’m going to go back to Texas and take the bar exam, I’ll be
back in D.C. somewhere, you know, early November and I’ll get in touch
with you then. Bill had already, I guess he took the D.C. bar that summer and
I’m pretty sure he had already decided to work for, my memory for names is
getting worse and worse, the firm, do you know Jamie Gorelick, the firm, she
was in Miller & Cassidy.
Ms. Upadhyava: Okay, I was going to say Hale & Dorr, but that’s where she is now right?
Ms. Clark: Yeah. That’s where she is now. Right, Miller & Cassidy, he and Jamie started
on the same day at Miller Cassidy and so I think he had already decided he was
going to be here for Miller Cassidy, so my first, you know, sort of okay, so I’m
going to come back to Washington and I’ll look for a job in Washington and I
just assumed I’d find something that I liked and so, that’s what I did when I got
back from taking the bar exam. I applied to this firm and to several others and
did some interviews and decided this is where I wanted to be.
Ms. Upadhyava: So that would’ve been the late fall of 1975?
Ms. Clark: That’s right.
Ms. Upadhyava: Okay. And when did you start here?
Ms. Clark: December 15th, 1975.
Ms. Upadhyava: And you’ve continuously been an attorney at this firm ever since?
Ms. Clark: Yeah. It will be 43 years in December.
Ms. Upadhyava: I recall that we were, I was here for your, I was here the night of your 40th
Ms. Clark: Yes. That’s right.
Ms. Upadhyava: We spoke, one of the previous times, yeah. So, what was it about this
particular firm that attracted you, over the others?
Ms. Clark: I really, really liked the people. There were, I was lawyer number eight, so
there weren’t a lot of them, but the people that I met seemed like really smart
talented lawyers and people that I could learn from how to be a lawyer. So, I
had a little bit of hesitation about whether the subject matter might end up being
too narrow, that I might get tired of it, but it never even came close to being too
narrow. There are parts of this firm’s practice that I’ve never touched. So for
now, almost, 43 years, it really, if I could have been smart enough at the time to
design the perfect career for myself it would’ve been this one.
Ms. Upadhyava: That’s really remarkable.
Ms. Clark: It really is remarkable. I just fell into it by chance, that Joel had a friend who
was here and who didn’t stay all that long, I guess he left in the mid-eighties
and went to an even smaller firm where he’s practiced, I think he’s still in
practice, but it was just happenstance and a lot of good luck.
Ms. Upadhyava: When was the firm founded?
Ms. Clark: In the fifties by Arthur Goldberg before he was Secretary of Labor. He was
General Counsel to the CIO and also to the Steelworkers’ Union and he
created an office in D.C. to represent those two clients, essentially, and it grew
into this law firm and various changes in personnel over the years. He left,
President Kennedy appointed him to be Secretary of Labor and then put him
on the Supreme Court, so he left in the, obviously between ’61 and ’63.
Ms. Upadhyava: Right. Were there any women attorneys when you joined?
Ms. Clark: I was number one.
Ms. Upadhyava: Okay. Was the firm called Bredhoff & Kaiser at that point?
Ms. Clark: No, it had a long unwieldy name, Bredhoff, Cushman, Gottesman & Cohen,
but we had the good fortune in 1981 to merge with a firm that was headed by
Henry Kaiser who was a lion in the labor bar, and we became Bredhoff &
Kaiser and we’ve kept that name, so whatever changes there have been in the
partnership since then, it remains Bredhoff & Kaiser, hopefully will forever.
Ms. Upadhyava: Was it a foregone conclusion that you were going to come back to D.C., at
the end of your clerkship I mean?
Ms. Clark: This is where I wanted to be. I found the city much more congenial and I had
the impression that people here were practicing very interesting law. Justice
Powell’s advice to me was go back to some small city where you will be the
very best lawyer in town and make a name for yourself there, which is what he
had done in Richmond. I’m glad I disregarded his advice on that score. I think
it worked out perfectly for me. And if there had been any doubt in my mind, I
went back to Waco to visit my parents in the interim between finishing this
clerkship and when I took the bar review course and the bar in Austin. In
between there I stayed with them for probably a week and they said we really
would love to have an up-to-date photograph of you, could you go have a
picture taken and I said oh sure, I’ll do that. So I went to a picture studio that I
had used when I was in high school and then took the yearbook photos. I was
there posing for a photograph and the photographer says so what have you been
doing since you were here last, and I said, well I went to college, I went to law
school and I’ve been, you know, off as a law clerk at the Court of Appeals and
the United States Supreme Court. He said something like, you got to be really
careful not to be too smart because you’re going to want to find a husband, and
I thought that’s just the attitude I want to get away from. I didn’t respond in
any way at all other than just thinking to myself, Texas is not for me. Some of
our good friends stayed in Austin and had wonderful careers there, one working
for the Texas Attorney General’s Office for 25 years or longer. Some practiced
in Dallas. Some in Houston, but I think Washington was the right place for me.
Ms. Upadhyava: And when had Bill started with Miller & Cassidy and what practice was he
pursuing at that time?
Ms. Clark: He was doing general civil litigation and working with Nat Lewin, primarily,
and Jack Miller. He did some work for NASCAR, which was of course kind
of fun, and then he was in trial in Chicago for several weeks. They were
defending, there were some brothers who had been accused and convicted of
bribing Chicago officials. Oh the horror, right? And I think this was, Jack
Miller was defending one brother and the other one was being defended by a
really, really top-flight trial lawyer out of Nashville. And here my name
aphasia is going to hit me again, but it will come to me. So, Bill had some
really fine experience there. But his aim at all times was to go to the Solicitor
General’s Office and as soon as his two-year waiting period was up he started
at the S.G.’s office.
Ms. Upadhyava: Oh in the, with respect to…
Ms. Clark: Former Supreme Court…
Ms. Upadhyava: Supreme Court clerks. Okay. So at this point…
Ms. Clark: Jim Neal, that was the lawyer from Nashville. Jim Neal.
Ms. Upadhyava: …so, at this point in 1975, as you’ve done all this, you said you went back
home to visit your family, what did your family make of all that you had
achieved in this period of time?
Ms. Clark: They understood it enough to know that they were very proud.
Ms. Upadhyava: And were they supportive of you staying?
Ms. Clark: My dad always wanted me to come back to Waco and practice law. That was
what he always wanted, but I just, this is one of those charming things that
comes around. He had never had anything to do with labor unions in his entire
life. Being in the military, there aren’t any labor unions in the military,
certainly not representing enlisted personnel. But he, as a second career after
he retired from the military, he became a meat cutter and he was working in a
meat-cutting plant in Waco. And there were various things about the way they
were treated that would’ve made anybody think this isn’t really right. And one
time when I was home visiting, he says, “I think maybe we need a union.” And
I thought, wow. He really, they never formed a union, at least not while he was
there, but the mere fact that he was open to it was quite touching, I’d say.
Ms. Upadhyava: Wow. And when you started, and now as you’re practicing, what was going
on in your relationship with Bill? Were you both…
Ms. Clark: We were off and on for a while, we finally got married in 1981, in January.
And it was the right thing for both of us to do.
Ms. Upadhyava: That’s great. Did he stay in the Solicitor General’s Office?
Ms. Clark: He stayed there for quite some time. He was for a period the Chief of the
Appellate Section of the Criminal Division. Then he persuaded his good
buddy who was running the Organized Crime Section, that the Organized
Crime Section needed its own appellate lawyer. Because he’d gotten tired of
the administrative work of being a Section Chief. And so he was the Organized
Crime Section’s appellate lawyer during a period of time when they were
putting a lot of big organized crime figures into prison. And he argued a lot of
very, very high-profile cases in the Courts of Appeals all over the country.
And then the Deputy Solicitor General slot for Criminal opened up and he
became the Deputy Solicitor General on Criminal Matters. And stayed in that
position with a couple of brief stints as Acting Solicitor General when new
administrations would come in, until 1994…’93 maybe, late ’93 possibly.
Clinton’s Deputy Attorney General got into trouble. The name will come to
me, it’s not there on the tip of my tongue right now, but his Deputy Attorney
General got sent back to Arkansas in disgrace, [Web Hubbell]. Bill became
the Acting Deputy Attorney General for a brief period, working with Janet
Reno, who was the Attorney General. And our good friend Joel Klein found a
slot on the Court of Appeals for Bill because he was screening judges, and so
Bill was named to the Court of Appeals for the Federal Circuit, and he took
that position in ’94. And he’s still there.
Ms. Upadhyava: Does he like being a judge over being the one to argue cases?
Ms. Clark: Yes, he never liked arguing cases. He argued lots of cases in the Supreme
Court and he said he was always terrified. He would never let me come to his
arguments, because he said it would make him more nervous if I…
Ms. Upadhyava: So you’ve never seen him argue?
Ms. Clark: I’ve never seen him argue an appellate case, that’s true. There were two
occasions when he was doing Court of Appeals cases, that he and I had Court
of Appeals arguments, in the same Court of Appeals, on the same day. In both
of those occasions, I couldn’t see his argument because it was in a different
courtroom and it was before mine. So I missed the chance to see him argue,
Ms. Upadhyava: So, two questions I definitely want to fit in our session tonight is, at the time
now, in 1975 and your first several years practicing, can you describe what it
was like to be a female lawyer, woman lawyer in this town? Was it anything of
note? Was it still a pretty male-dominated profession? Or did you find D.C. to
be quite different from Austin in that regard, or Houston, in that regard?
Ms. Clark: Most, a very large majority of the lawyers were still men. There were
essentially no women judges, that came later. The women who were practicing
in D.C. were primarily in government jobs. There was a time sort of soon after
1975 when I got a letter. There was no email of course, so you couldn’t
communicate by email, that said, we think that it would be nice if we got the
women who are practicing labor law together, occasionally, just to share our
experiences and we’ll schedule a brunch and make it potluck, and everybody
bring something. And I thought “terrific, I’ll get to meet the older women and
find out what it’s been like practicing labor law in this city” and there were
three who were older than me. One of them I had…
Ms. Upadhyava: And you were what, 24, 25?
Ms. Clark: Yeah I was in my 20’s. Most of them were younger than me. There was one
that I had had some dealings with. She did work for the AFL-CIO, and I
knew her already, and there were two women who were working at the
Department of Labor at the time. And so no, there weren’t a lot of role
models for me, I had to kind of make my own way. I was fortunate that the
people I was working with here as far as I could tell never treated me any
different because I was a woman.
Ms. Upadhyava: That was my next question.
Ms. Clark: Yeah, no, they were very, very good. They lived their beliefs. This is as a
firm representing working people and representing a lot of Title 7 plaintiffs
over the years. They really, they acted the same way they argued, so it was a
very, very congenial relationship here. I never felt that I was treated in any
way differently. I mean, occasionally, there was a client who was not on
board, or an opposing lawyer who would treat me like some kind of little girl.
There was one, one that I did a whole week of deposition defense in Houston
that involved a case where a company had sued the union because there had
been strike violence on a picket line. And the lawyer representing the
company had been the national campaign chairman for George Wallace’s
presidential campaign only a few years before that. And he was one of those
who would just, you know, I don’t know that he ever actually said the words,
“You’re cute when you’re mad,” but that was kind of the message that I kept
getting. And he would…
Ms. Upadhyava: That just makes me cringe!
Ms. Clark: Oh I know! He would call me things like, you know, sweetie or cutie, I, you
know, I don’t know. I controlled myself every day through those long
depositions and then I would go back to the hotel, which my local counsel
had, bless his soul, had booked me. He said, “What kind of hotel do you
want?” And I said, “well something with a swimming pool would be great,”
so I could swim laps. He booked me into a hotel that had an Olympic size
swimming pool. And I would go back to that hotel and I’d swim for an hour
and just kind of wash it all away, it was the only thing that got me through
that week of just really, really distasteful behavior by a male lawyer. But
most of the time, it was really, I never felt that I was being treated any
differently from other lawyers, and you know, if anything there was kind of
a…I may have benefited from the fact that I would walk into a room and as
soon as I established that I knew what I was talking about, that would usually
it would be like, “Oh, she talks. She knows what…she’s, she’s smart!”
Ms. Upadhyava: She speaks!
Ms. Clark: She speaks! Right. And as one of our friends, a woman who was in the
Solicitor General’s Office with Bill, said, “It was like Boswell’s dog,” she says,
“We women lawyers.” This is Boswell from like the 18th century London.
And his remark was that, it was just that his dog could talk, and everybody
marveled at the fact that the dog could talk, even though the dog didn’t talk
very well, and it was hard to understand what the dog was saying. And Sarah
said, “We’re like Boswell’s dog. Nobody expects very much from us,” she
says, “but when we can do it right, they take notice.” And I think that’s exactly
the way it was. It was, you can go into a courtroom and start to speak and
you’re still a kind of novelty that not many judges had seen a lot of women
arguing cases. And you do it well, and it makes even more of an impression,
perhaps, than a man would have made arguing the same thing and doing just as
well. Still, there were places, there was a San Francisco courtroom I was in in
the mid 1980’s when I went in for a massive calendar call. So all the cases that
that district court judge had pending, somebody was there to tell him the status
of their case. Courtroom full of lawyers, I was the only woman in there.
Ms. Upadhyava: In the mid-80s?
Ms. Clark: In the mid-80s! Yeah. So this would have been about ’84, it might have been
’85, and I was shocked. I was sitting there looking around and thinking,
“Where are the women lawyers?” Now maybe there weren’t a lot of women
practicing trial law in San Francisco at the time, or maybe it was just a really
fluke coincidence that there weren’t any others there for that particular
calendar call, but it was very striking.
Ms. Upadhyava: How long, and I think we’re well past our time, so let me just ask, how long
before the next female, the second female attorney was hired at this firm?
Ms. Clark: You know I was just talking to one of my former partners about her today. I
think it was 1980, or early ’81.
Ms. Upadhyava: You were the only female attorney at the firm for about five
Ms. Clark: Yes.
Ms. Upadhyava: Five, six years, okay. Well, I really wanted to next tackle, and we can do this
if you’d like in our next session, your most, I guess the first appellate
argument you did and what that was like, because mine still gives me
nightmares, and your most memorable argument, to either the Courts of
Appeals or Supreme Court.
Ms. Clark: Okay.
Ms. Upadhyava: So, if that would be a good place to start on the next, I’m happy to keep going,
but I know we’ve been going for, you’ve been talking for about 2 hours and 15
minutes so…
Ms. Clark: Right, well, it seems like a good place to break, because it’s a slightly different
topic. So, definitely.