The Judicial Temperament


In Defense of Women: Memoirs of an Unrepentant Advocate

By Nancy Gertner

Beacon Press, Boston, 20110, 256 pp., $23.95, hardcover


Reviewed By Renée Loth


If you look closely at the portrait of federal judge Nancy Gertner on the cover of her engaging new memoir, you can see that her manicure is chipped.  This tiny detail captures something of Gertner’s breakneck career as a pioneering civil rights and criminal defense attorney: the cursory nod to convention, the teetering work-life balance, the scrappy fight to wrest something approaching fairness from an imperfect legal system. Fighting tooth and claw for justice, a person can break a nail.

In Defense of Women is an American Dream parable, as Gertner, the working-class granddaughter of Jewish immigrants, rises to the pinnacle of law and society. It is a nostalgia trip through the turbulent 1970s (when was the last time you thought about the antinuke group the Clamshell Alliance?) and that era’s erosion of social boundaries. It is a crash course in the law, as the reader learns how civil litigation, artfully applied, can reshape society.

Equally important, the book is an exhortation to young law students, especially women, not to eschew careers in the public interest. “New lawyers need to see that you can do what you set out to do, make principled decisions, align your heart and your work, and reject money as the only measure of value,” Gertner writes in the introduction. With fewer successful models drawn from these choices than ever, In Defense of Women wouldn’t make a bad first-year textbook.

Gertner is a fixture in the worlds of law, politics, and feminism in Massachusetts, but she has a national profile as well. Probably her most famous case was among her first: at age 29, she defended Susan Saxe, a Brandeis student, antiwar radical, and lesbian who joined in a Brighton bank robbery in 1970, ostensibly to fund the antiwar movement. Walter Schroeder, a police officer responding to an alarm after all but one of the robbers had fled, was shot and killed. Three young men were arrested immediately, but Saxe and a classmate, Katherine Power, escaped and lived separately underground. When Susan was arrested in Pennsylvania five years later, her lover was stunned to learned of her secret past.

The Saxe case begins Gertner’s long line of legal “firsts.” Fearless, creative, and maybe a bit naïve in her approach to the law, Gertner often tried out novel motions and theories. In Commonwealth v. Saxe, Gertner won the right to directly question potential jurors known as voir dire (previously only judges were allowed to quiz the jurors). The case was the first challenge to the Massachusetts “felony murder” statute, under which all accessories to a crime could be charged with murder, even if, like Saxe, they weren’t present when the killing took place. And, in a rather more dubious breakthrough, the fugitive Saxe was among the first women on the FBI’s Ten Most Wanted list.

If Gertner had wanted to build a career by learning to play the boys’ game by their rules, Commonwealth v. Saxe would have been a really bad place to start. It was 1976, a time when newspapers still felt queasy about using the “Ms.” honorific that Gertner requested in coverage of the trial. Court officers sneered at her; sexist asides and speculation about her sexuality were common. And yet she assembled an all-female team of lawyers and investigators to work on the case. She filed unorthodox motions such as requesting that Saxe be co-counsel. It was a case where the process mattered nearly as much as the outcome.

Still, Gertner’s pragmatic side recognized the limits of symbolism in defending a militant like Saxe. She writes: “While I had to reflect her goals, her principles, I somehow had to win.”

Not to prolong the suspense: she didn’t, at least not if outright acquittal was the goal. After many legal twists, including a hung jury and a mistrial, Saxe pleaded guilty to robbery and manslaughter and received a relatively moderate sentence of twelve-to-fourteen years. She was released from Framingham women’s prison in 1982, after serving eight years. “I was not fighting for Susan’s right to do what she was accused of doing,” Gertner sums up. “I was fighting—with all my heart—for the obligation of the system to be fair, to follow the rules, no matter what the crime, no matter who the defendant.”


Yes, but Gertner also chooses to represent a certain type of defendant—those who reflect her beliefs and values. A graduate of Yale Law School who for years refused to carry a briefcase, Gertner was, in the legal scholar Lani Guinier’s phrase, someone with “insider privileges and outsider consciousness”—and she was going to take full advantage of those privileges. Over her twenty-year career, she defended victims of rape and domestic violence, poor women seeking state-funded abortions, college professors denied advancement, and lesbians fighting for child custody. Defending Saxe wasn’t just about abstract principle. “As for Susan, we have remained dear, dear friends. ‘You saved my life,’ she said. In the final analysis, nothing else mattered.”

The close personal relationship between Gertner and her celebrated client leads to the most introspective sections of the book. Gertner describes herself not just as Saxe’s advocate but her “proxy,” someone who so mirrored her client that even Saxe’s mother came to see her as part of the family, calling at all hours for long, intimate talks about her daughter’s choices.

Quoting the journalist and critic Janet Macolm, Gertner draws parallels between litigation and psychotherapy: a “law cure” empowers a person who is traumatized or deeply wronged to tell her story to the world and achieve catharsis, if not justice. In a fascinating malpractice case, for example, Gertner represents an emotionally fragile woman whose psychiatrist had manipulated her into a long and unhealthy sexual relationship. Repeatedly hospitalized for depression that was only exacerbated by her supposed helper, the victim clings to the hope of her day in court. “I am literally living for that moment,” she tells Gertner.

The parallels between law and therapy continue. Gertner’s client identifies so completely with her new savior that the relationship becomes muddied. When Gertner tries to prepare her client for a worst-case scenario, it sends the client into a tailspin, because she thinks Gertner doesn’t believe her story. “She confused my professional judgment and my personal support,” Gertner writes. But isn’t it also Gertner who confuses the two?

Gertner channels a client again when she takes on the defense of Lisa Grimshaw, who was accused of arranging the murder of her savagely abusive husband, Tom. It was the first time battered-women syndrome had been admitted as a defense in Massachusetts. Gertner tells the jury in agonizing detail about the years of torture Grimshaw suffered at the hands of not only Tom but also a succession of violent boyfriends and her own father. Gertner sits in a chair before the jury, folding herself into the fetal position. “For my closing, I will relive Lisa’s story of the hours before Tom’s death. I will transform myself into her.”

 
It’s important in reviewing memoir not to become so engrossed in the biography of the memoirist that the book’s qualities as literature are overlooked. In Defense of Women contains much lucid, charming writing on complex topics, a conversational tone, bracing honesty, and flashes of humor. The case re-enactments are riveting, like the best courtroom dramas.

Occasionally, though, Gertner rushes headlong past concepts that would have deepened the book had she taken a breath. She frames her journey around the advocate’s challenge of “feeling empathy, and yet learning detachment”—another parallel to the therapeutic relationship. We could have used much more about how that works: where lawyers draw the lines, and whether Gertner thinks she achieved that delicate balance, especially as a judge. Perhaps that material will be plumbed in a second book.

The memoir’s title is a bit of a misnomer, because over twenty years Gertner did, of course, defend men, including one young man accused of date rape, precisely the sort of crime Gertner had pushed the law to recognize earlier in her career. Taking the case earned Gertner the scorn of some feminists who saw a betrayal of her values—or theirs.

As the 1970s grow more distant, Gertner finds that the issues of sex discrimination and women’s rights grow more subtle and complex. “The criminal law should not swing from one gender stereotype—women always lie; no means yes—to another—women never lie, yes means no,” she writes. She begins to doubt the wisdom of using criminal law to push a social agenda, as she had done for years with civil law. Too much is at stake. “Rape was different, I agreed in my soul. But the criminal law is different too, the potential loss of liberty especially compelling. Rape is unique, but so is freedom.”

Does the fact that Gertner by this time is the mother of two boys influence her thinking? Admirably, she doesn’t discount the possibility. “When I looked at [the defendant] I suddenly saw my baby sons,” she says. Far from being inconsistent or hypocritical, Gertner’s defense of the young man was completely in character: she has always led with her heart.

A whiff of controversy surrounded the announcement last year that Gertner was writing a memoir, especially one that admits to a career as “an unrepentant advocate.” Her conservative critics leapt at the tendentious title. Isn’t a judge supposed to rule based on the facts and the law, and not “advocate” for anyone, female or otherwise?

Gertner takes care to confine her book to her days as an attorney, when she is supposed to argue fiercely for one side over the other. But she admits to a bit of an identity crisis. “It was as if conceiving of me in my new judicial role required wiping out the memory of the advocate, the activist, the trial lawyer—roles that had meant very much to me, representing people whom I cared so much about, cases that I had taken so much to heart.”

In February, Gertner announced that she will retire from the federal bench this September, when she turns 65. Perhaps she finds the judge’s chambers too confining. It’s hard to imagine that anyone like her could be confirmed as a federal judge in the sulfurous climate that grips Washington today. Paradoxically, perhaps, it is precisely in her honesty, her compassion, and her fierce dedication to equal rights that Gertner’s judicial temperament comes shining through.

 

Renée Loth is a columnist for the Boston Globe.

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