tv Marlene Trestman Fair Labor Lawyer CSPAN August 15, 2021 9:19am-9:55am EDT
date in history posts. >> it's my honor and pleasure today to welcome you to this virtual lecture delivered by marlene [inaudible]. marlene's a lawyer. she's also the author of a book entitled "fair labor lawyer: the remarkable life of new deal attorney and supreme court advocate [inaudible]". she's currently working on her second book entitled "the
history of the [inaudible], 1855 through 1946." for the last decade of her 30-year career, as a maryland's attorney general's office, from which she retired in 2013, she served as a special assistant to the attorney general and was responsible for enforcing consumer protection laws governing the marketing of tobacco and alcohol and internet safety. [inaudible]. -- has twice received the attorney general's exceptional service award. a phi beta kappa graduate and a member of the board of trustees in a college in maryland. she earned her law degree from
george washington university and her mba from loyola university of maryland, where she has also taught law. she has received recognition and financing for research and grants for fellowships for the national endowment for the humanities, brandeis institute, and the american jewish archives. [inaudible] to be sure. she has been a recipient of our society [inaudible] literary award for an earlier article about you guessed it [inaudible]. today we continue that conversation. i'm delighted to welcome her to the society's virtual platform. i'm delighted to welcome our
audience for which i promise will be an interesting and informative afternoon. thanks. >> thank you for that wonderful introduction. while i try to share my screen, as i thought i might even though i practiced this, i'm going to take a minute to thank the historical society for making this book possible and indeed making it possible for me to write about bessie margolin. i received enormous assistance from the resident historian of the society and she was instrumental in allowing me to have this program go forward. so i'm hoping -- terrific. all right. again, thank you to the historical society. i know bessie would be very pleased for you all to be
learning and getting introduced to her today. through a life that spanned the 20th century, 1909 to 1996, bessie margolin made her mark on the biggest issues of her day. she defended the constitutionality of fdr's new deal. she drafted rules for the nazi war crimes trials, and for more than three decades, she championed the fair labor standards act which ultimately included the equal pay act which led her to become a founder of [inaudible]. she presented 24 arguments at the supreme court, one of only three women to do so in the entire 20th century, and she prevailed in cases associated with 21 of those arguments. by my count, and i've spent sometime doing this, to this day, margolin remains one of only seven women to argue at the supreme court 24 or more times.
she began her legal career in 199 -- in 1930, when only 2% of america's lawyers were women. she served in the federal government under six presidents, from fdr to nixon and nine labor secretaries, beginning with francis perkins. she received every award the labor department offered, and by 1963 was promoted to the department's top non-political legal position. she was a striking woman of cultivated southern charm who turned heads when she entered a courtroom. in short, before there was the notorious rbg, there was the audacious bessie margolin. after she retired in 1972, she seemed to fade from the public record. so it is not hard to understand why she deserves to be rescued from obscurity, but i would like to start by telling you how i came to the task. in the fall of 1974, i was a
freshman at a college in baltimore, far from my home in new orleans. my high school guidance counselor had written margolin, a distinguished alumna from the class of 1925, the letter of introduction shown here. through college, law school, and into my legal career, i got to know bessie margolin. she was the first female lawyer i ever met, and we were connected by common childhood experiences. bessie and i were both wards of the same southern jewish children's welfare agency which educated both of us at newman school a half century apart. bessie margolin personified excellence in the law and in public service at a time when women attorneys were discouraged -- discouraged if not outright prevented from pour -- pursuing opportunities available to men.
while protecting the rights of millions of american workers, she also advanced the careers of countless warriors and other employees many of whom sought out her prestigious and yes demanding [inaudible]. i will share her journey from the social justice to a powerful advocate. she was born in 1909 in brooklyn new york, first american born child of russian jewish immigrants. from there to escape new york's tough and crowded conditions, bessie's family made its way to memphis. about a year after giving birth to a third child, bessie's mother died leaving bessie's father alone to care for his three own children. a rabbi petitioned the orphan home to accept the children as so called half orphans.
the orphanage admitted her and her siblings. the home was on st. charles avenue near the stately mansions of new orleans most prosperous citizens. in the home bessie grew up with more than 150 orphans and half orphans from throughout the deep south. its trustees were not content to provide them with near subsistence. instead the home groomed bessie as an all american girl who reflected the values and culture of her prosperous benefactors. in addition to a reform jewish education, the home provided bessie with a robust secular education at the isadore newman school, the isadore newman manual training school where the cutting edge curriculum emphasized home economics and woodworking as well as rigorous academics. the home built this unique school to educate its wards
first, but was open regardless of religion to other children, albeit then only white children whose parents paid tuition. newman quickly became what it remains today, one of the south's finest college prep schools. bessie excelled in every subject. she graduated from newman in 1925 as a 16-year-old leader who was comfortable in a co-ed setting, competing, succeeding, and winning respect. besides leading the debate club and the girl's student council, bessie was valedictorian and won a coveted scholarship to a college which was then tulane's coordinate college for women. she spent two years there, ranking among the top ten in her class, but the audacious bessie wanted more. she decided to attend law school, something no other girl from the orphanage had done. as tulane law school's only
woman at the time, bessie felt isolated and self-conscious. when a professor lectured about a case involving an accident in a men's bathroom, no one in the class wanted to discuss the facts of the case. they were embarrassed to use the word toilet in mixed company. when one poor fellow finally blurted out washroom, they all sighed with relief. in june 1930, at age 21, bessie completed her liberal arts and law studies with honors in only five years. she graduated second in her law school class and was an editor of the law review. at the height of the depression, jobs were scarce, especially for a jewish woman lawyer. but tulane's law school's dean urged yale's law school's dean to hire bessie as a research assistant. in new haven, bessie impressed her boss as well as a wildly popular young yale professor, william o. douglas, the future
supreme court justice. having earned their respect, bessie became the first woman awarded yale's prestigious sterling fellowship for graduate studies. with her yale doctorate, she moved to washington, d.c. for a new opportunity. she applied for a job at the tennessee valley authority, which congress had just created to realize fdr's new deal vision of supplying electricity to the valley's impoverished residents. her yale boss wrote what apparently was needed to hear to hire a woman lawyer, that bessie was intent on a legal career, quote, as a primary objective from which she would not be deflected by consideration of marriage end quote. bessie thus began her government career with a pledge that she would be married to her job instead of a man. hearing tva's competition,
private utility companies hurled charges of socialism that quickly turned into lawsuits. to direct the legal defense of this new deal cornerstone, tva hired james lawrence fly, a harvard law graduate and experienced trial lawyer from the justice department. fly wisely made bessie a key member of his brilliant legal team and its only woman. she researched, prepared witnesses, and materially shaped the briefs in two landmark supreme court cases that upheld tva and its programs, ash wander and tennessee electric power company. in her other tva work, she negotiated contracts and got courtroom experience, all despite fierce resistance to a woman lawyer from local attorneys, judges, and even witnesses. how did bessie feel about her profession? in 1938, she shared her thoughts in her sorority's magazine. the law is still too greatly
restricted for women, with considerable prejudice against them, she wrote, and offered her sorority sisters this no-nonsense advice. a woman attorney must manage to be accepted and treated as another man and must be willing to take responsibility, criticism, and hard work in the same spirit as do the men attorneys. she must aim to become one of the men, without, however, becoming masculine or overly aggressive in her approach. it was 1938. bessie practiced what she preached throughout her career. in march 1939, bessie joined the labor department, where another new deal program awaited enforcement, the fair labor standards act of 1938 prohibited child labor and guaranteed minimum wages and overtime, as it does to this day. bessie was there as every aspect
of the new law was tested. during her first few months on the job, her work brought her back home. [inaudible] love bessie's local girl story. one photo captured her in a pose -- [inaudible]. why wasn't she married the press reported? one said her response in this way, i haven't had time for love. but i'm not immune. i'm just uncontaminated. bessie's remarks was witty, like a line from a hepburn movie reviewing bessie's passion. second she wasn't self-conscious about being single. and third it just wasn't true. to find out about bessie's
pension for passion that further derailed her chances for a federal judgeship, you are going to have to read the book. the drama of bessie's personal life never impeded her work. in her early years at the labor department, she paid her dues reviewing time sheets in damp warehouses and traveling back roads to interview vegetable pickers, packers, and log cutters. she began arguing and winning appeals and started working with the solicitor general's office on cases headed for the supreme court. bessie's high quality work earned her recognition. delighted with a supreme court brief she principally wrote, solicitor general promised she could argue the next fair labor standards act case to go to the court. so in march 1945, before sandra day and ruth bader reached high school, margolin became the 25th woman to argue at the supreme
court. after what must have been a lively argument, justice robert jackson marked the occasion with a thoughtful note. the first of several he wrote to bessie over the years. i hope you were satisfied with the way the court argued your first case. i'm sure there will be no dissent from the opinion that you should argue here often. bessie won that case, establishing the long-standing precedent until recently that exceptions to the fair labor standards act must be narrowly construed. before the year ended, bessie argued four more times at the supreme court and prevailed in three of those cases. these and the rest of her many cases that followed all advanced the acts humanitarian purposes by protecting wage earners to the full extent congress intended. but when bessie presented her fourth and fifth arguments at the supreme court, justice jackson was not on the bench.
he was in nuremberg, germany, after world war ii as the u.s. chief prosecutor for nazi war crimes. this new and exciting legal pursuit attracted bessie, who in may 1946, went to nuremberg to help organize what became the american military tribunal. for her six-month tour of duty, the army's commanding officer acknowledged bessie's role in drafting the rules that govern the war crimes trials of some 200 second tier nazis, the judges, the doctors, and the industrialists. in december 1946, bessie returned to the labor department, epitomizing the new postwar ideal of a glamorous career girl succeeding in a man's world of law. she was featured in the january 48 issue of glamour then known as the magazine quote for the girl with a job.
times have changed. but glamour did not interfere with grit. by the time she retired in 1972, bessie had directed the preparation and review of approximately 750 supreme court and other appellate briefs and petitions. most impressively margolin briefed and personally argued 174 cases in the supreme court and other courts combined, winning an astounding 8 out of every 10 cases she argued. now, she was no great orator. she often edited herself as she spoke making it difficult to read her transcript, but listening to her is another matter. she engaged the justices who respected her meticulous preparation and knowledge of the law, and she was able to employ humor, something not often done with success at the supreme
court. in this 1955 audio clip, you will hear bessie spar with justice frankfurter where bessie successfully argued that battery plant workers whose jobs involved contact with toxic chemicals had a right to wages for the time they spent changing their clothes and showering. although you may not be able to hear everything he's saying, you will hear justice frankfurter's annoyance with congress for imposing on the courts what he considered to be undue burdens of interpreting the act, an annoyance he frequently redirected at bessie. >> [inaudible]. it's no different than many questions of statutory interpretation and through the application of the legal -- [inaudible] of the statute.
>> [inaudible]. >> that should be a question for congress but not the courts. but after all congress has to get agreement on language and the court has to sign. and that's enough. [laughter] >> [inaudible]. >> i'm sure mr. justice frankfurter, i don't need to tell you that language is something that's easy to make clear. >> in this next 1960 clip, you will hear how comfortable she was with the justices, probing her positions and dissecting her arguments. she's plain having fun with the way justice charles whitaker
worded one of his questions. >> i would like to go on to show the other clear basis areas. >> do you stand in this case on your answer to the chief justice? >> what do you mean, do i stand -- i stand. i don't fall on either. [laughter] >> bessie won that case with justice whitaker not surprisingly providing the lone dissent. as for justice frankfurter despite the banter you heard from the prior clip, they enjoyed a cordial relationship outside the courtroom. she certainly got his attention as evidence by a private note to his male law clerk. he preferred to bessie's quote best use of her feminine charm and in another to her quote exploitation of her female talents. was bessie playing the woman
card? if i had been able to ask her, i think she would have said she was playing the only cards she was dealt. in the early 1960s, bessie decided to pursue a federal judgeship and not just any judgeship. bessie wanted a seat on only one of two federal courts in d.c., a particularly audacious goal given that there were then only two women federal judges in the entire country. with enthusiastic backers from congress, the supreme court, and the labor department, bessie's name was considered by lbj himself. it's not clear what, if any, role in the decision was played by her affair, the one you will have to read about in the book, but she's also faced other hurdles. one male white house staffer criticized bessie's fashion forward appearance as quote flamboyant and another opined quote her age, 58 would tend to preclude her from consideration,
end quote. by 1968, bessie had been passed over for seven federal judicial vacancies on those two courts alone, all filled by men, five older than she was. the silver lining from bessie not getting a judgeship is that she stayed at the labor department where she developed the national strategy and personally argued the first appeal under the equal pay act and somewhat ironically the age discrimination and employment act. by the time she retired in 1972, she had overseen the filing of 300 equal pay lawsuits in 40 states, ultimately recovering millions of dollars for thousands of employees and earning the title of the nation's number one fighter for equal pay for women. she traveled the country delivering more than a dozen speeches to labor lawyers and corporate counsel, almost always men and many hostile to her
cause. she urged them to comply with the equal pay act and the new sex discrimination prohibition in title seven and she wielded her authoritative voice as an experienced and successful veteran of courtroom battles. one such battles was perhaps margolin's most significant appellate victory which was not heard by the supreme court which one commentator likened to a second brown v board of education. the trial court had moved that male packers in the glass factory were entitled to 10% higher pay largely because they contested so called greater flexibility to perform additional duties, a distinction that was feared to be reversal proof despite its dubious merits because of the judge's extensive factual resuscitations informed by two judicial site visits, when even one is rare.
yet margolin convinced the appeals court to reverse the trial court decision and establish that jobs need only be substantially equal, not identical, to require equal pay. the company petitioned the supreme court to take the case as you may know which is called ser, at bessie's retirement dinner, former labor solicitor, today a senior federal judge for the d.c. circuit described what happened next. >> when i told you the third circuit after an argument [inaudible] with a decision that was sweeping in scope. i saw a footnote in the lines saying we will give you anything you want. please don't send her down again. [laughter] >> and counsel for the other
side. and bessie and i discussed it. now, you can see the light in bessie's eyes. she had a sweeping decision in the third circuit, but here was an opportunity to take an equal pay case to the supreme court. bessie suggested that maybe we should not [inaudible] because it was appropriate for a supreme court decision. i didn't think we would get a better decision than the third circuit. there are other speakers this evening who can address that point. [laughter] >> i sort of leaned back in my chair, i said bessie, i have never argued a case in the supreme court.
she said [inaudible]. [laughter] >> that was just one of the colorful stories the judge shared with margolin's more than 200 guests that evening, judges and government dignitaries. a supreme court chief justice then retired was guest speaker. here's an excerpt of chief justice warren's tribute to bessie margolin. >> -- representing the tennessee valley authority labor department and implementing the fair labor standards act. she didn't always have a bed of roses. i'm sure the hundreds of briefs that she wrote and the scores of cases she introduced, some in every 11 circuits and 27 in the supreme court, must have raised in some quarters to have made her look forward to the serenity
of retirement. the 27 cases alone that she argued in the supreme court were a big undertaking. the fair labor standards act was not always popular in all quarters. -- [inaudible] were developed around its bare bones were her great contribution to millions of american working people. many of these people do not know who bessie margolin is or what a great service she rendered to them, but if they did know, they would praise her tonight. in their name, i would like to thank her tonight because the bare bones of that act would have been fully inadequate without the implementation that she gave in the courtroom -- she forged in the courtroom. [applause]
>> i'm not going to try to top the chief justice's remarks. so i will add only a few concluding comments. fair labor lawyer, the title of margolin's biography refers literally to the new deal legislation that she shepherded through the courts. but it also refers to the fairness of margolin's own career, the obstacles she faced as a woman, a jewish woman, the opportunities that influential supporters afforded her, her use of her feminine charm, and her passionate personal life, the one you will need to read about in the book. for many the title also represents the challenge i have imposed on myself in doing justice in telling bessie's remarkable story. i hope i have succeeded. i think bessie would be particularly pleased to know that the supreme court historical society invited me to share her story. the court was a very special place for her. here she is pictured in 1991
with her niece charlotte margolin dressed up and on their way to the historical society's gala dinner that evening. as for the book, i think she would also be happy to know that her biography has received a fair share of positive published reviews. i'm sure none of them would please her as much as this unpublished and hand-written review which is also one of my favorites, and i will quote an excerpt. as daunting as the undertaking must have been, you have accomplished an important mission in bringing the working days of a remarkable woman vividly to light. although bessie's path and mine never crossed, i had heard much about her. thank you for enabling me and legions of other lawyers to appreciate what a front-runner she was. and it's signed ruth bader ginsburg. thank you for your attention.
francis perkins in congratulating bessie on her very first supreme court argument and victory said she was particularly pleased to learn how animated the court was and that it asked her so many questions because francis perkins understood that that demonstrated the court's unusual interest and bessie