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| Photo by Stephen Funk |
Tracy Thomas is the author of the new book The First Woman Judge: The Life and Legacy of Florence Allen. Her other books include Elizabeth Cady Stanton and the Feminist Foundations of Family Law. Thomas is the director of the Center for Constitutional Law at the University of Akron School of Law.
Q: Why
did you decide to write a biography of Judge Florence Allen (1884-1966)?
A: I
literally walked past a photo of Judge Allen in the classroom where I was
teaching as a new law professor. One day, my dean pulled me aside and pointed
to the photo and said, “You know Florence Allen, right?” I did not.
She
was a local heroine, emerging from Northeast Ohio to become the first woman
judge in the nation many times over—the first woman trial judge in 1920, then
state supreme court judge in Ohio, then federal circuit judge, then shortlisted
to the U.S. Supreme Court.
Yet
only her name was known even among legal historians. It seemed that a deep dive
into her legacy of groundbreaking appointments and 40 years on the bench was
needed. I found that there were many stories here of women breaking barriers in
law, as Allen was among the first 1 percent of women law students, 1 percent of
woman lawyers, one of the first woman prosecutors, as well as a first judge
many times over.
Q: How
did you research her life, and what did you learn that especially surprised
you?
A: This
book required heavy research into the thousands of archival documents Allen
donated to Cleveland’s Western Reserve Historical Society and the Library of
Congress. She clearly intended to be remembered.
Her
handwritten diary alone, with illegible cursive and German proofreading marks
(learned during years abroad in Berlin) made translation a slow, yet illuminating
process. I also had to collect, review, and interpret her more than 800 written
decisions on the bench to find patterns and then place them in the context of the
developing law in the early 1900s.
What
surprised me was Judge Allen’s moderation, her commitment to the rule of law,
and careful, balanced opinions. She was an avid women’s rights advocate,
serving as a national and Ohio leader for suffrage, litigating cases of
constitutional gender equality, and representing women in equal employment
cases.
Yet,
her decisions did not advocate for women, and indeed in several of the key
cases of women’s rights that came before her, she deferred to her male
colleagues or remained anonymous behind “per curiam” authorship to let the
decision speak for itself.
Q: How
close did Judge Allen come to being appointed to the U.S. Supreme Court?
A: Very,
very close. Allen was considered 12 times by three presidents for a Supreme
Court nomination. Presidents of both parties were interested in courting the
women’s vote, newly authorized in 1920 by the Nineteenth Amendment, and women
demanded one of their own on the highest bench.
She
came closest to appointment in 1938 when President Franklin Roosevelt advanced
her name and invited her to dinner at the White House, and the press endorsed
her as an excellent top choice.
She
lost the nomination at the last minute, perhaps because there was a conflict
over a pending case she was presiding over that tested the extent of the
president’s powers under the New Deal, and any appointment would look like a
blatant bribe. The position went to the unassuming Stanley Reid.
Allen
came really close to an appointment again with Roosevelt’s fourth nomination,
among the final three being considered by the administration. The press
proclaimed the time for a woman was now, and the FBI completed its background
check.
However,
supporters of another frontrunner, William O. Douglas, played dirty, and fed
false rumors to a nationally syndicated column claiming Allen was a bad judge
with a high reversal rate. That was completely false, as she had been
overturned only a few times in 15 years, yet the damage was done. As Allen herself
said, “they meant to kill me off forever.”
A
final nomination seemed guaranteed in 1949 when President Truman agreed to
appoint Allen. But he first had to ask his friend and poker buddy Chief Justice
Fred Vinson if the Justices would accept Allen. They replied firmly, “no.” The
men would not welcome a woman into their conference chambers where they kicked
off their shoes, feet on the table, and rolled up their shirt sleeves in boisterous
argumentation.
Truman
tried again, proposing a one-year appointment to gain points with women voters
but minimize the allegedly disruptive impact. Again, the Justices said no.
Q: What
do you think she would make of today’s Supreme Court?
A: Allen
would be thrilled to see that there are four women on the Court of nine
justices. She always extended the ladder down to support other women judges of
both parties, and she would consider the bipartisan increase in women judges a
triumph.
However,
she would be dismayed at the retraction of equality in the Court’s opinions.
And outraged by the disavowal of the rule of law and the visible partisanship
of the judges, which she spoke about as highly unethical and corrupt.
Q: What
are you working on now?
A: I
am working on a new book of legal history about the Women’s Law Fund, a public
interest law firm in the 1970s litigating cases of women’s rights to develop
the new laws of gender equality under the Constitution and statutes like Title
VII and Title IX.
The
law had not yet recognized women’s equality and this start-up organization and
its inspiring leaders helped create that law and open up opportunities for women
in employment and education. It tells the fascinating stories of many regular
women going about their daily lives, and then stepping up to challenge sex
discrimination where they found it.
The
new book picks up where the Judge Allen book left often. Allen died in 1966,
just before the civil rights movement and the advent of the women’s liberation
movement that ushered in the full equality of women that Allen had envisioned.
Q: Anything
else we should know?
A: Judge
Allen’s life and legacy provides an example of how one person can make a
difference to the system of justice and that taking action and simply doing the
work can make a tremendous impact in the long run.
--Interview with Deborah Kalb
