Trail­blaz­ing judge rose to lead U.S. Court of Ap­peals for D.C. Cir­cuit

The Washington Post Sunday - - FRONT PAGE - PA­TRI­CIA WALD 1928-2019 BY ADAM BERN­STEIN

Shortly be­fore she grad­u­ated from Yale Law School in 1951, Pa­tri­cia Wald se­cured a job in­ter­view with a white-shoe firm in Man­hat­tan. The hir­ing part­ner was im­pressed with her cre­den­tials — she was one of two women on the law re­view — but lamented her tim­ing.

“It’s re­ally a shame,” she re­called the man say­ing. “If only you could have been here last week.” A woman had been hired then, she was told, and it would be a long time be­fore the firm con­sid­ered bringing an­other on board.

Grad­u­ally, work­ing nights and week­ends while rais­ing five chil­dren, she built a ca­reer in Wash­ing­ton as an author­ity on bail re­form and fam­ily law. Work­ing for a pro bono le­gal ser­vices group and an early pub­lic-in­ter­est law firm, she won cases that broad­ened pro­tec­tions for so­ci­ety’s most vul­ner­a­ble, in­clud­ing in­di­gent women and chil­dren with special needs.

She be­came an as­sis­tant at­tor­ney gen­eral un­der Pres­i­dent Jimmy Carter, who in 1979 ap­pointed her to the U.S. Court of Ap­peals for the Dis­trict of Co­lum­bia Cir­cuit — of­ten de­scribed as the coun­try’s most im­por­tant bench af­ter the U.S. Supreme Court. She was the first woman to serve on the D.C. Cir­cuit and was its chief judge

from 1986 to 1991. Later, she was a mem­ber of the United Na­tions tri­bunal on war crimes and geno­cide in the for­mer Yu­goslavia.

Judge Wald, whom Barack Obama called “one of the most re­spected ap­pel­late judges of her gen­er­a­tion” when he awarded her the Pres­i­den­tial Medal of Free­dom in 2013, died Jan. 12 at her home in Wash­ing­ton. She was 90.

The cause was pan­cre­atic can­cer, said a son, Dou­glas Wald.

More than 800 opin­ions

On the D.C. Cir­cuit, Judge Wald served on three-mem­ber pan­els that de­cided some of the most com­pli­cated le­gal dis­putes on the fed­eral docket. She wrote more than 800 opin­ions dur­ing her ten­ure — many on tech­ni­cal mat­ters in­volv­ing sepa­ra­tion of pow­ers, ad­min­is­tra­tive law and the en­vi­ron­ment — and she counted her­self among the more lib­eral ju­rists, view­ing the law as a tool to achieve so­cial progress.

In 1986, Judge Wald dis­sented in a 2-to-1 rul­ing that up­held a D.C. or­di­nance that made it il­le­gal, within 500 feet of a for­eign em­bassy, for protesters to dis­play signs hos­tile to the em­bassy’s gov­ern­ment or to dis­obey a po­lice or­der for three or more peo­ple to dis­perse.

At the time, demon­stra­tors reg­u­larly gath­ered out­side the South African Em­bassy to shame the apartheid regime and out­side the Nicaraguan and Soviet em­bassies to call at­ten­tion to hu­man rights vi­o­la­tions. (The case was brought by con­ser­va­tive ac­tivists protest­ing Nicaragua’s rad­i­cal left-wing San­din­ista regime and the treat­ment of Soviet dis­si­dent An­drei Sakharov.)

Writ­ing for the ma­jor­ity, Judge Robert H. Bork cited the obli­ga­tion of the United States to up­hold the “dig­nity” of for­eign gov­ern­ments. Judge Wald re­sponded that the rul­ing “gouges out an enor­mously im­por­tant cat­e­gory of po­lit­i­cal speech from First Amend­ment pro­tec­tion.”

Two years later, the Supreme Court re­versed the D.C. Cir­cuit’s rul­ing on the dis­play of hos­tile signs out­side an em­bassy. The high court also en­dorsed a se­verely re­stricted view of the author­ity to dis­perse gath­er­ings of three or more peo­ple, declar­ing that it could be used only when po­lice be­lieve that there is a threat to the “se­cu­rity or peace” of an em­bassy.

Judge Wald played a small role in a long-running, high-profile case in­volv­ing the Jus­tice De­part­ment’s ef­fort to break up the soft­ware gi­ant Mi­crosoft on the grounds of anti-com­pet­i­tive prac­tices.

She dis­sented in 1998, when the court ruled that the com­pany had not vi­o­lated a con­sent de­cree re­gard­ing Mi­crosoft’s bundling of its In­ter­net browser with its Win­dows 95 op­er­at­ing sys­tem. She con­curred with the gov­ern­ment’s argu- ment that bundling gave the soft­ware com­pany’s browser an un­fair ad­van­tage and could be fi­nan­cially harm­ful to com­peti­tors. (Mi­crosoft and the Jus­tice De­part­ment reached a set­tle­ment in 2002.)

In an in­ter­view for this obit­u­ary, Judge Wald said some of her most sig­nif­i­cant work failed to at­tract as much in­ter­est as the em­bassy and Mi­crosoft cases.

In 1997, she de­liv­ered a unan­i­mous opin­ion in a case grow­ing out of a cor­rup­tion probe in­volv­ing Mike Espy, who served as agri­cul­ture sec­re­tary un­der Pres­i­dent Bill Clin­ton and was ac­cused of ac­cept­ing il­le­gal gifts. In her opin­ion, one of the most cited ex­ec­u­tive-priv­i­lege cases since the Water­gate era, Judge Wald broad­ened the scope of ex­ec­u­tive priv­i­lege to in­clude the pres­i­dent’s se­nior ad­vis­ers while not­ing that it was “not absolute” and could not be claimed in all cir­cum­stances.

In a speech at Yale in 1988, she likened judges on the ap­peals court to “monks or con­ju­gal part­ners locked into a com­pul­sory and of­ten un­easy col­le­gial­ity . . . . I con­stantly watch my col­leagues in an ef­fort to dis­cern what it takes to be a good ap­pel­late judge: alert­ness, sen­si­tiv­ity to the needs of the sys­tem and one’s col­leagues, raw en­ergy, un­selfish­ness, a healthy sense of his­tory, some hu­mil­ity, a lively in­ter­est in the world out­side the courthouse and what makes tick.”

“If the law is to survive and flour­ish,” she con­cluded, “it must change and develop through ex­pe­ri­ence, ap­pli­ca­tion to new sit­u­a­tions, test­ing in new cir­cum­stances, in­fu­sion of new knowl­edge. To­day, it seems, we shy from that phi­los­o­phy for fear it may draw the stigma of ‘le­gal ac­tivism.’ But la­bels are de­ceiv­ing and too of­ten in­tim­i­dat­ing. The truth is that life does change and the law must adapt to that in­evitabil­ity.”

Sum­mer jobs at the fac­tory

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Pa­tri­cia Ann McGowan was born in the fac­tory town of Tor­ring­ton, Conn., on Sept. 16, 1928. She was 2 when her fa­ther, whom she called an al­co­holic, aban­doned the fam­ily. Her mother raised her with the help of rel­a­tives. They all worked at Tor­ring­ton Co., which pro­duced sewing and sur­gi­cal nee­dles and, dur­ing World War II, ball bear­ings.

She re­mem­bered work­ing sum­mers, as a teenager, at the fac­tory, “up to my arms in ball-bear­ing grease.” The drudgery and her en­coun­ters with union ac­tivists sparked her in­ter­est in la­bor law.

Vale­dic­to­rian of her high school class, she re­ceived a schol­ar­ship to Con­necti­cut Col­lege for Women and grad­u­ated first in her class in 1948 with a bach­e­lor’s de­gree in gov­ern­ment. A Pepsi-Cola fel­low­ship en­abled her to af­ford law school. She was one of about 10 women in a class of about 180.

In 1952, she mar­ried a Yale class­mate, Robert L. Wald. Af­ter a stint clerk­ing for a fed­eral judge and work­ing as an as­so­ciate in a Wash­ing­ton law firm, she shifted her at­ten­tion to her fam­ily for the next decade.

She did le­gal re­search projects on the side, col­lab­o­rat­ing with Daniel J. Freed, a Yale class­mate and Jus­tice De­part­ment lawyer, on “Bail in the United States — 1964,” a book cred­ited with spurring the Bail Re­form Act of 1966. That land­mark leg­is­la­tion up­ended the bail sys­tem, which had left poor de­fen­dants lit­tle choice but to lan­guish in jail be­fore trial, by al­low­ing de­fen­dants to be re­leased with­out bond in cer­tain non cap­i­tal cases .( The act was later wa­tered down by pre­ven­tive de­ten­tion laws .)

Judge Wald wrote an­other book, “Law and Poverty, 1965,” and three years later joined the staff of Neigh­bor­hood Le­gal Ser­vices, a le­gal-aid group in the Dis­trict. One of her early cases chal­lenged the rul­ings of a do­mes­tic-re­la­tions judge who re­fused to waive divorce fees for in­di­gent women. The judge rea­soned that tax­pay­ers had not forced peo­ple to marry and should not be ex­pected to pay the costs of their sepa­ra­tion.

Judge Wald led a team that suc­cess­fully ar­gued in 1970 be­fore the D.C. Cir­cuit fed­eral ap­peals court that the fi­nan­cial bar­rier was ef­fec­tively an un­con­sti­tu­tional de­nial of ac­cess to the courts.

Judge Wald’s sub­se­quent work for the Cen­ter for Law and So­cial Pol­icy, a pub­lic-in­ter­est law firm, led to one of the first court de­ci­sions re­quir­ing that school dis­tricts pro­vide an ad­e­quate education to the men­tally and phys­i­cally dis­abled.

In 1977, Carter named her as­sis­tant at­tor­ney gen­eral for leg­isla­tive af­fairs. Her ju­di­cial nom­i­na­tion two years later — at a time, she said, when women were be­ing put on the bench na­tion­ally in sub­stan­tial num­bers — ran into con­ser­va­tive op­po­si­tion on the Se­nate Ju­di­ciary Com­mit­tee.

Sen. Gor­don J. Humphrey (R-N.H.), cit­ing an ar­ti­cle she had writ­ten on the le­gal rights of chil­dren to seek with­out parental ap­proval med­i­cal and psy­chi­atric at­ten­tion in ex­treme cases, ac­cused her of be­ing “anti-fam­ily.” Ap­pear­ing be­fore the Se­nate Ju­di­ciary Com­mit­tee, Bob Jones III, a fun­da­men­tal­ist preacher and pres­i­dent of Bob Jones Univer­sity in South Carolina, called her an “in­stru­ment of the devil.”

Judge Wald liked to re­call that a re­porter ap­proached her son Thomas, then in high school, for his re­ac­tion to his mother be­ing called a min­ion of Lu­cifer. “Well, she burns the lamb chops,” Thomas replied, “but oth­er­wise she’s okay.”

Her hus­band, who be­came a prom­i­nent Wash­ing­ton an­titrust lawyer in pri­vate prac­tice, died in 2010. Sur­vivors in­clude their chil­dren, Sarah Wald of Bel­mont, Mass., Dou­glas Wald of Bethesda, Md., Jo­hanna Wald of Ded­ham, Mass., Fred­er­ica Wald of New York and Thomas Wald of Den­ver; 10 grand­chil­dren; and one great-grand­son.

Judge Wald was a for­mer vice pres­i­dent of the Amer­i­can Law In­sti­tute, an or­ga­ni­za­tion of le­gal pro­fes­sion­als. Af­ter the col­lapse of the Soviet Union, she par­tic­i­pated in Amer­i­can Bar As­so­ci­a­tion ef­forts to as­sist struc­tural changes to the le­gal sys­tems of for­mer com­mu­nist na­tions in Eastern Europe.

In 1999, U.N. Sec­re­tary Gen­eral Kofi An­nan named her one of 14 judges, from as many coun­tries, to serve on the war crimes tri­bunal for the for­mer Yu­goslavia at The Hague.

She sat for two years on the now-de­funct crim­i­nal court and was on the panel of judges that in 2001 con­victed for­mer Bos­nian Serb gen­eral Radislav Krstic, the first per­son found guilty of geno­cide by the tri­bunal. The tri­bunal sen­tenced Krstic to 46 years in prison for his role in the slaugh­ter of thou­sands of Mus­lim men and boys near Sre­brenica in 1995. An ap­peals court later re­duced the sen­tence to 35 years.

Judge Wald brought what the New York Times called a re­fresh­ing lack of pomp to the tri­bunal, of­ten running down doc­u­ments her­self, in­stead of dis­patch­ing clerks to fetch them, leav­ing her of­fice door open for vis­i­tors and tak­ing her meals in a can­teen where judges were sel­dom spot­ted.

She sat on many blue-rib­bon pan­els and com­mis­sions. But she said she took par­tic­u­lar pride in her role in an ap­pel­late de­ci­sion in­volv­ing a Naval Acad­emy honor stu­dent, Joseph St­ef­fan, who had been ex­pelled be­cause he was openly gay.

Judge Wald was part of the three-judge panel that unan­i­mously ruled in 1993 that the armed forces could not make sex­ual ori­en­ta­tion the sole cri­te­rion for ex­pul­sion. The Jus­tice De­part­ment then asked for a re­hear­ing by the full D.C. Cir­cuit court, which in a 7-to-3 rul­ing — with Judge Wald dis­sent­ing — re­jected St­ef­fan’s read­mis­sion.

“You al­ways have a sad feel­ing when you write a dis­sent be­cause it means you lost,” Judge Wald said in an in­ter­view with a D.C. Bar pub­li­ca­tion. “But you write them be­cause you have faith that maybe they will play out at some time in the fu­ture, and be­cause of the in­tegrity you owe to your­self. There are times when you need to stand up and say, ‘I can’t be as­so­ci­ated with this point of view.’ That was cer­tainly the way I felt in the gay mid­ship­man case.”

STEPHEN VOSS FOR THE WASH­ING­TON POST

Pa­tri­cia Wald be­came the D.C. Cir­cuit’s chief judge in 1986.

EVAN VUCCI/AS­SO­CI­ATED PRESS

Pres­i­dent Barack Obama said Pa­tri­cia Wald was “one of the most re­spected ap­pel­late judges of her gen­er­a­tion” when he gave her the Pres­i­den­tial Medal of Free­dom in 2013. Af­ter serv­ing on the D.C. Cir­cuit, Wald was part of the U.N. tri­bunal on Yu­gosla­vian war crimes.

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