Patricia McGowan Wald – Legal Services/Public Interest Lawyer
The Honorable Patricia McGowan Wald died on January 12, 2019. Formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, she had been widely lauded in life, receiving (among many other honors) the Presidential Medal of Freedom. Much of her career was summarized in long obituaries in The New York Times and The Washington Post.1
In addition to her tenure on the D.C. Circuit, Judge Wald had been the U.S. representative to the International Criminal Tribunal for the Former Yugoslavia. She also worked at the U.S. Department of Justice in various capacities, including as Assistant Attorney General for Legislative Affairs. And before her judicial service, she was a lawyer at the D.C. Neighborhood Legal Services Project (NLSP). It was in that capacity that I knew her, and I write to record some of her contributions at NLSP and thereafter at the Mental Health Law Project (MHLP), which later became the Judge David L. Bazelon Center for Mental Health Law.2
DC’s Neighborhood Legal Services Project had been created in 1964, with funding from the Ford Foundation for fourteen lawyers in three offices.3 Later that year, the federal Office of Economic Opportunity (OEO) committed to augment that funding to support thirty lawyers in ten offices.4 In 1966, NLSP hired David Marlin to be Deputy Director for Law Reform and to create a Law Reform Unit for NLSP.5
Marlin, who had been an attorney in the Civil Rights Division of the U.S. Department of Justice, staffed the Law Reform Unit with four full-time lawyers – Laurens Silver, who already worked for NLSP; Peter Smith; Maribeth Halloran; and me.6 Maribeth and I joined the Unit on February 20, 1967; the others were already there. He then added two part-time lawyers, Margaret Farrell and Pat Wald, who divided a full-time position.7
Pat worked for NLSP from 1968 to 1970. When she came to NLSP, she already was a distinguished lawyer: after graduating from Yale Law School, where she was an editor of the Yale Law Journal, she had clerked for Judge Jerome Frank of the U.S. Court of Appeals for the Second Circuit. She then was an associate at the firm then known as Arnold, Fortas, and Porter, having been recommended to the firm by Judge Frank with one sentence: “She is the best law clerk that I ever had.”8 She was a member of the National Conference on Bail and Criminal Justice, co-author of the book BAIL IN THE UNITED STATES (1964), a consultant to the National Conference on Law and Poverty, a member of the President’s Commission on Crime in the District of Columbia, a consultant for the President’s Commission on Law Enforcement and Administration of Criminal Justice, and an attorney in the Office of Criminal Justice at the U.S. Department of Justice. She worked with the Commission on the Causes and Prevention of Violence and with the National Advisory Commission on Civil Disorders (the Kerner Commission).9
Most pertinent to her work at NLSP was her consultancy with the National Conference on Law and Poverty. As part of that, she helped to plan and execute the National Conference on Law and Poverty held in June 1965 under the sponsorship of Attorney General Nicholas deB. Katzenbach and the Director of the Office of Economic Opportunity, Sargent Shriver. She wrote the report Law and Poverty 1965, which was the working paper for that conference. Also, for the Commission on the Causes and Prevention of Violence she “wrote a chapter on the plight of poor people in the civil legal system.”10
Pat’s joining the staff brought honor to NLSP: her high status in the DC legal community reflected well on the organization and all of us who worked there.11 Despite her stature, she was modest, unassuming, and collegial. Initially, she wrote several reports, “one on truancy” and another “on witness fees in civil cases.”12 Before the Supreme Court addressed the issue in Boddie v. Connecticut, she argued and won a landmark case in the D.C. Circuit establishing the right of indigent women to get divorces without prepaying attorneys’ fees and costs.13 My recollection is that in connection with that case, recognizing that the District of Columbia needed a new in forma pauperis statute, Pat sat down at her typewriter to draft one. That’s my memory – that she didn’t do what most of us would have done (days of research); rather, she sat down at her typewriter to draft the new law. She also argued and won a three-judge district court case invalidating durational residency requirements for mentally ill women seeking treatment at St. Elizabeth’s hospital.14 Pat (and Margaret Farrell and I) also worked with Gene Fleming in briefing the case for the residents in Javins v. First National Realty Corp., a landmark case that established an implied-by-law warranty of habitability in residential leases in the District of Columbia.15 Despite what she described as her “almost total lack of courtroom experience,” Pat successfully defended a very significant juvenile case with John Marshall Roney, Esq., a lawyer in an NLSP neighborhood office.16 Pat also testified before Congress “dozens of times” on legal services issues.17
After Pat left NLSP, she was one of the founders and then litigation director of the Mental Health Law Project.18 She was counsel in Mills v. D.C. Board of Education, 348 F.Supp. 866 (D.D.C. 1972), which was the forerunner of the Education for All Handicapped Children Act. She and Ben Heineman litigated a case that tried to get people out of St. Elizabeth’s hospital and into community mental health facilities and another case under the Youth Corrections Act.19 She also was an active amicus in Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974), which reformed the treatment of juvenile offenders in Texas and is a national landmark case in the juvenile justice field.20
The Mental Health Law Project . . . added considerable respectability to what the plaintiffs’ attorneys were trying to do regarding improving conditions of confinement. [Judge William Wayne] Justice allowed them to participate as litigating amici . . . . The two attorneys from the mental health organization were experienced, and it showed.21
Judge Justice’s biographer captures much about Pat, quoting her as saying:
. . . we genuinely had set out to be . . . amicus in the sense of not taking sides. But you couldn’t be a caring human being and not end up being on the side of the plaintiffs in that case.22
When Pat’s portrait was presented at the U.S. Court of Appeals for the D.C. Circuit, Justices O’Connor and Breyer were among the speakers. Especially pertinent for this legal services site is this comment by Justice Breyer who identified as one of five characteristics of Judge Wald that of being “a genuine wealth minimizer.” Explaining, he said: “She has taken jobs, each one pays less than the last. And she started out at legal services and from there on it was a steady decline in the nature of the compensation.”23 I think Pat would have taken that as I believe Justice Breyer meant it: as a badge of honor. She had said, in a 1987 interview with now-Professor Jeffrey S. Lubbers: “the only thing I emphasize to young lawyers is that the pleasure and satisfactions you get from working in the law are very often not confined to the paycheck.”24 In a tribute to Judge Wald, Linda Greenhouse quoted a statement made by Judge Wald in 2008. It is a fitting conclusion to this review of Judge Wald’s years as a legal services lawyer and, indeed, her entire life. Greenhouse wrote:
Invoking the memory of Robert Kennedy, Judge Wald wrote, “I recall a time in the not-too-distant past when many of my generation passionately believed in an alliance of government and the people for positive social change.” She went on: “Too often in the 40 years since, our political leaders have divided and polarized us. . . . . My grandchildren and their peers need not be seared by our failures and our mixed memories. I want them to be stirred by the same idealism that once stirred my generation.”25
Pat Wald’s idealism shone through her entire life. She helped, persuaded, encouraged, inspired, and led efforts to make the world much more just. We all were privileged to know her.
- Adam Bernstein, Patricia Wald, pathbreaking federal judge who became chief of D.C. Circuit, dies at 90, The Washington Post, Jan. 12, 2019, available at https://www.washingtonpost.com/local/obituaries/patricia-wald-pathbreaking-federal-judge-who-became-chief-of-dc-circuit-dies-at-90/2019/01/12/6ab03904-1688-11e9-803c-4ef28312c8b9_story.html?utm_term=.318a5d688626 ; Neil A. Lewis, Patricia Wald, Who Broke Barrier on Appeals Court, is Dead at 90, The N.Y. Times, Jan. 12, 2019, B6, available at https://www.nytimes.com/2019/01/12/obituaries/patricia-wald-dead.html . Much other information about Judge Wald is available on the internet; this brief essay will not include citations to such readily accessible material.
- The Neighborhood Legal Services Project later became the Neighborhood Legal Services Program. This essay refers to both as NLSP. The Mental Health Law Project (MHLP) began as a project of the Center on Law and Social Policy and then became an independent organization. See note 18, infra.
- Earl Johnson, Jr., Justice and Reform: The Formative Years of the OEO [Office of Equal Opportunity] Legal Services Program 29 (Russell Sage Foundation 1974); cf. Earl Johnson Jr., To Establish Justice for All: The Past and Future of Civil Legal Aid in the United States (Volume 1 of 3) at 52 (Praeger 2014) (stating that the commitment from the Ford Foundation was for three four-attorney offices plus a director). (In the latter book there is no comma before “Jr.” in the author’s name.)
- Johnson, To Establish Justice for All, supra note 3, at 54; cf. Brian Gilmore, Love You Madly: The Life and Times of the Neighborhood Legal Services Program of the District of Columbia, 10 D.C.L.Rev. 69, 87 (2007) (stating that the OEO funding came in 1965).
- Gilmore, Love You Madly, supra note 4, at 87 (stating also that this “was the first such law reform unit in the country”); see also Johnson, To Establish Justice for All, supra note 3, at 111 et seq. (discussing OEO’s promotion of “law reform” as an objective beginning with the Harvard Conference on Law and Poverty in March 1967).
- See Patricia M. Wald, Ten Admonitions for Legal Services Advocates Contemplating Federal Litigation, 27 Clearinghouse Rev. 11 (May 1993). I am grateful to Michael M. Daniel, Esq., for this reference.
- Transcript of Interview with Patricia Wald (June 19, 2006), available at https://abawtp.law.stanford.edu/exhibits/show/particia-wald at 24 (“Wald Oral History”). This interview is part of the oral history of Judge Wald produced by the American Bar Association Women Trailblazers in the Law Project. The interviewer was the Honorable Judith Winston.
- Wald Oral History, supra note 7, at 2.
- Id. at 21.
- Id. at 22.
- When Pat Wald joined NLSP, she “was 40 years old, with much experience and a national reputation . . . .” Introduction to Wald, Ten Admonitions, supra note 6, at 11.
- Wald Oral History, supra note 7, at 24.
- Wald, Ten Admonitions, supra note 6, at 12; see also Wald Oral History, supra note 7, at 24; Boddie v. Connecticut, 401 U.S. 371 (1971).
- Wald Oral History, supra note 7, at 26. Maribeth Halloran recalls Pat’s arguing a challenge to the D.C. juvenile adjudication system and “her persistence in overcoming the hostile environment then sometimes presented by judges who were not used to being called upon to consider the rights of the underserved.” Email from Maribeth Halloran, Esq., Jan. 18, 2019.
- Javins v. First National Realty Corp., 428 F.2d 1071 (D.C. Cir. 1970), cert. denied, 400 U.S. 925 (1970); see Richard H. Chused, Saunders (a.k.a. Javins) v. First National Realty Corporation, XI Geo. J.on Pov.L.& Pol’y 192, 228 (2004). (An abridged version of this article is in PROPERTY STORIES 121-68 (Gerald Korngold & Andrew P. Morriss eds., Foundation Press 2004).
- For the comment on her courtroom experience, see Wald, Ten Admonitions, supra note 6, at 11; see also Wald Oral History, supra note 7, at 21-22 (stating that “during the riots” (presumably after Dr. King’s assassination in April 1968), she had “represented several defendants” in the D.C. courts, although she “really had no courtroom experience”) and 36-38 (discussing the juvenile case).
- Wald Oral History, supra note 7, at 41, 44.
- Comments of Professor Robert Dinerstein, Director of the Disability Rights Law Clinic at American University, Washington College of Law, quoted in Jeffrey Lubbers, Patricia Wald’s Great Legacy, 36 Yale J. on Reg.: Notice & Comment (Jan. 15, 2019), https://yalejreg.com/nc/patricia-walds-great-legacy-by-jeffrey-lubbers/ ; see also Introduction to Wald, Ten Admonitions, supra note 6, at 11 and Wald Oral History, supra note 7, at 31, 38 (stating that her years at the Mental Health Law Project were “roughly 1972 to 1977,” as Director of Litigation “[f]rom 1975 to 1977”).
- Wald Oral History, supra note 7, at 34-35. I believe that the deinstitutionalization case was Dixon v. Weinberger.
- The descriptions of these lawsuits are taken from Introduction to Wald, Ten Admonitions, supra note 6, at 11; see also Wald Oral History, supra note 7, at 32-33 and Peter D. Roos, The Potential Impact of Rodriguez on Other School Reform Litigation, 38 Law & Contemp. Probs. 566, 572 (1974) (describing Mills as a “leading case” in a series of lawsuits seeking access to education for children with disabilities).
- Frank R. Kemerer, William Wayne Justice: A Judicial Biography 151-2 (U. Texas Press 1991).
- Id. at 152.
- The comments from the portrait ceremony are on the Website of the D.C. Circuit Historical Society, but I take this quote from Aaron Nielson, A “Pioneer” with “a Subtle Wisdom” – and a “Genuine Wealth Minimizer” to Boot: The Legacy of Chief Judge Patricia Wald, (Jan. 12, 2019), http://yalejreg.com/nc/a-pioneer-with-a-subtle-wisdom-and-a-genuine-wealth-minimizer-to-boot-the-legacy-of-chief-judge-patricia-wald/ This echoes a comment often made about another legal services leader, Clint Bamberger, whose career path – from partner in a Baltimore law firm to staff attorney at a legal services program to law professor – often was described as downwardly mobile. See, e.g., Johnson, To Establish Justice for All, supra note 3, at 78 et seq. and passim.
- Jeffrey S. Lubbers, Administrative Law as Seen from the D.C. Circuit: An Interview with Chief Judge Patricia M. Wald, 34 Federal Bar News & Journal 15, 20 (1987).
- Linda Greenhouse, The Kind of Judge We Need, The New York Times, Jan. 17, 2019, available at https://www.nytimes.com/2019/01/17/opinion/patricia-wald.html
Florence Wagman Roisman
William F. Harvey Professor of Law and Chancellor’s Professor
Indiana University Robert H. McKinney School of Law
I am grateful to TaNay Porshonda Morris for research assistance.
- December 31, 2023
January 28, 2022