Goodman, Ellen P.

English

Penn Law: Legal Scholarship Repository

TENDERJUSTICE: JUDGE NORMA LEVY SHAPIRO'SHARD-HEADED HUMANITYELLEN P. GOODMAN'One hot August morning, fifteen minutes into my clerkship forJudge Shapiro, I saw the whole woman and her integrated approachto humanism, law, womanhood, community, and professionalexcellence.In those first breathless minutes, the Judge, a gracious hostess anddomestic doyenne, asked for my opinion about the new furniture shehad selected for the clerks' office, and whether I thought it met herprecisely articulated aesthetic and functional goals. She then led mewith obvious pride through the chambers' small library. I wasinstructed to consult a treatise first when confronted with unfamiliarareas of the law, despite what the law scho6Y writing instructors mighthave told me. Digests and computer databases were all very useful,but not until the mind had grasped the whole. That instructionevinced the Judge's belief that unschooled electronic searches toooften lead to haphazard legal research, but, more profoundly, itrevealed her deep respect for the authority of learning.Next on the agenda that morning was a short visit in the Judge'soffice, where splashes of color and comfort bespoke a woman at homewith her work. The shelves and sills were crowded with awards forcommunity service and legal achievement, with pictures of childrenand grandchildren, and emblems of a lifelong commitment to Jewishcauses, the advancement of women, and social justice. I could nothave been in there for more than twelve minutes. But by the time Ileft, the Judge knew the statistics that were vital to her: my romanticstatus and hopes, my birthday, and what I like to eat. And in thoseseven minutes, I absorbed lessons, both philological and psychological,I would never forget. I learned that the word "indicate" should beused with data (always plural) and not with people and that "that" isalmost always better than "which," but it is better still to reconstructthe sentence to avoid the that/which grammatical quandaryI Associate Professor of Law, Rutgers University School of Law-Camden. FormerPartner, Covington & Burling, Washington D.C. and law clerk to Judge NormaShapiro, 1992-1993.26 UNIVERSITY OF PENNSYLVANIA LA W REVIEWaltogether. It wasn'tjust that the Judge valued good writing. She feltthat good and accurate writing was a sign of good and accuratethinking. Just as importantly, the Judge told me that a woman neednot abandon either tenderness or common sense in the pursuit ofrigorous analysis. Beauty was truth, and truth need not wear boxers.The next year provided-as has each of the subsequent years-achance to practice and build upon Judge Shapiro's lessons.I. HUMANITYFederal criminal trials and sentencing are heartbreakingexperiences. At least they were for me. The power of the state, withits polished wood and muscular federal marshals, is arrayed againstthe defendant who, now in the dock, is divested of all authority andmenace. He seems small next to his lawyer, in whose direction theyoung children in the courtroom's back rows, kicking absently at thefloor, look to save their helpless parent.In the respite from a barrage of drug cases, the Judge presidedover the trial of a man in his seventies who was convicted of a criminalClean Water Act violation. Before his retirement, he had run ageneric drug manufacturing company and had ordered an employeeto pour toxic substances down a storm drain. Judge Shapiro is prettytough on crime. Just as she would not hear from drug defendants thatthey thought their crimes were victimless, she was not going to bemoved by the claims of this septuagenarian that he did not realizemidnight dumping was so bad. The law was what it was and it reignsin theJudge's courtroom.What I saw over and over in Judge Shapiro, however, is thatjudgment and empathy need not keep their distance. The Judge wasclearly moved by this defendant who was facing the last years of his lifein prison. When he was asked to read a document on the stand, itbecame clear that he could hardly see. While justice might be blind,the Judge did not think this defendant should be. She offered to gethim a magnifying glass. During a break, she engaged him about thecare he was getting for his eyes and made some suggestions aboutpractitioners and possible treatments. I am not quite sure why thisimage of the Judge counseling this elderly defendant was so enduringfor me. I think it has something to do with the mixture of mercy andfairness in this tough, loving woman. Herjustice and her mercy comefrom the same place. The hardjustice and the tender mercy are both,in a way, demonstrations of compassion. Women lawyers inparticular, I believe, are tempted to hide or even eliminate their[Vol. 152: 25NORMA LEVY SHAPIROsoftness. Judge Shapiro taught me that you did not need to. Softnesswas not weakness. Softness was as much a discipline to be practiced asstrength.II. THE LAWJudge Shapiro taught me about the limits and possibilities of thelaw without ever declaring her views on the subject. She did itthrough her questions. They were questions to the state government,which was defending a civil rights claim for taking a girl from hergrandmother's custody. How could itjustify moving this girl throughso many foster homes when her grandmother desperately wanted her?They were questions for representatives of the city governmentconcerning the conditions of prisoners in its custody. How was it thatthey had no idea how many prisoners they were housing? How couldthis happen, particularly to juveniles? Often they were questions toprivate litigants in settlement conferences designed to pierce thepuffery of lawyers who, by inaccurately assessing the merits of theirclaims, had failed to put their clients first.One particular line of inquiry stands out. The Judge, her clerks,and a parade of lawyers and principals from the Department ofHousing and Urban Development and a local housing rights groupwere on a tour of the dilapidated housing projects of Chester,Pennsylvania. The case had involved a claim of constructivedemolition against HUD and the Judge, as she so often did, wanted toget her hands dirty-really dirty-with the facts. I think JudgeShapiro's view is that justice cannot roll like a mighty river unlessdecisionmakers are drenched in the mundane and the technical,where the truth hides.We picked our way through broken glass, crumbling concrete,and doors half off their hinges. To the HUD principals in the group,the Judge turned and asked, in so many words, "Why can't you fix thatwall so that it's not falling down? That's inexcusable." And to one ofthe resident association representatives, the Judge asked, again in somany words, "Why can't you pick up the needles and condoms in theplayground? Are you going to just wait for HUD to do it?" I don'tremember exactly how that case turned out a year or two after myclerkship. But I know what those questions meant. They meant that,notwithstanding the law's great power to right wrongs and createincentives for higher levels of performance, the law is limited in itsability to further our aspirations. Personal responsibility andhonorable conduct on the part of the powerless and powerful alike2003128 UNIVERSITY OF PENNSYL VANIA LAW REVIEWare necessary. Certainly many of us believe that. Judge Shapiro hasthe courage to say so and to say it to your face.III. WOMANHOODOne source of authority the Judge could call upon in asking awoman why she hadn't cleaned up is that the Judge had. She hadcleaned up playgrounds and poop, coffee grinds and broken hearts.She never made much of the fact that she was her court's first femalejudge (and the first female in the 3rd Circuit) or that she was the firstfemale partner at Dechert Price & Rhodes (now Dechert LLP), but wewomen knew it. We also knew that she had been a school boardpresident, that she doted on her three sons and what are now her sixgrandchildren, and that she made sure the birthdays of all her fellowjudges were celebrated with cake and songs at lunchtime. We knewshe cared about her clothes and her hair, and she cared about ourclothes and our hair. We knew that she believed, and she taught us tounderstand, that presentation of all kinds has meaning.So far as I know, Judge Shapiro does not agonize over the work-family balance either for herself or for us, her clerks. She seems to begrateful for and content with the choices she has made and thevarying emphasis she has given to child-rearing, community service,and the law at different times of her life. I left my clerkship withconfidence and, frankly, probably even a sense of entitlement. I didnot know what the future held for me in terms of children or career,but I certainly did not believe them to be incompatible or even insignificant tension. They are, of course, in tension. I suspect otherclerks learned the same thing. Values in tension, however, are not thesame thing as values at war. Tension is difficult. Judge Shapiro thriveson difficulty and so, I think, have many of her female clerks who arelaw firm partners, general counsel, and senior lawyers in governmentand non-profits, as well as law professors.IV. COMMUNITYIf the Judge has preferences for her clerks in their choice ofcareer, there is only one that I could discern. It was to stay inPhiladelphia if we could. The Judge is fiercely loyal to the city and toits institutions, especially to her alma mater, the University ofPennsylvania. Although Philadelphia, with its unfulfilled potentialand big dreams, is a city that inspires loyalty in many, I think theJudgewould have loved and served any community to which she was[Vol. 152: 25NORMA IEVY SHAPIROconnected. And she probably would have stayed connected to anycommunity she was born into. For her, as a Philadelphian and a Jew,the city and the Jews command a dedication that is unshakable. It's adedication of time and effort, notjust affinity. So the Judge makes thetrek to the synagogue of her youth because it is a place her family haslong supported. She gives time she does not have to serve oncommittees and boards of various Jewish organizations. From what Ihave heard and what I have seen, these organizations are foreverchanged by her demands for integrity in financial management andpursuit of mission.I made my way back to Philadelphia, my hometown, fromWashington a decade after clerking for the Judge. For the Judge, themerits of the move were obvious. Whatever excitement andopportunities a place like Washington has to offer cannot compare tothe value of contributing to the place that has contributed to you.Loyalty to family, community, and place are, for the Judge, moreimportant than most considerations and as important as any.V. PROFESSIONAL EXCELLENCEUp there with loyalty is the execution of high standards.A substantive federal trial court order is one of the most beautifullegal documents I know. The logic has to be simple and flawless.Whereas, a, b, c, and d are the factual predicates; and whereas, m, n,o, and p is the law; therefore, w, x, y, and z is the result. The languagehas to be simple. And the Therefore clause has to be right. JudgeShapiro writes orders of particular grace and she demands that herclerks give her good drafts.First, the analysis has to be impeccable. Judge Shapiro can look ata document, apparently only skimming it, and then raise her headand say "You have left out a step in the analysis here on page 13."Sure enough, that part of the memo that never came together quiteright had an analytical flaw in it. You had thought it was a writingproblem, but it was the analysis. It was almost always the analysis. Ifthe analysis is rock solid, the paper writes itself.Requirement number two: no legal gobbledygook. I never wroteor edited a legal brief, memo, or letter without this admonition inmind. Although most of the civil litigants in federal court were well-represented, the Judge wanted the orders to be understandable to theprincipals and, really, to the public. Law should not be esoteric. Thewritten products of the federal government should not be obscure.Judge Shapiro can be impatient and irritable, and it is usually when2003]30 UNIVERSITY OF PENNSYLVANIA iA W PVIEW [. 1she is confronted with obscurity and obfuscation. "I don't know whatyou're saying," she might bark at a lawyer or at a clerk. It is a call tocourage. Come out from behind the veil of misleading ormeaningless locutions and say it. Think it, then say it.Finally, be correct. Some lower court judges wear reversals as abadge of honor. Not so, Judge Shapiro. She is very rarely reversedand she does not like it when she is. I daresay the Judge would ratherbe reversed than be wrong, but I think she believes there is a highcorrelation between being right and being upheld. Like all clerks, Ididn't want to write the draft that became the opinion that was tossedback on appeal. The Judge's nose for analytical error gave me comfortthat it would be hard to convince her of erroneous reasoning. But shewanted more from her clerks. She wanted common sense. So, whenthe books were closed, the numbers had been run, the computerturned off, and the last period marked, she would ask: "Do you thinkthis result makes sense?" There it was ... the bottom line. It is aquestion so often overlooked in advocacy; one I was to find inpractice. The adversarial posture of conversations in the lawencourages lawyers to advance their positions in negotiations and inarguments with force and confidence. Law clerks, having convincedthemselves, can do the same thing. With Judge Shapiro's queryresonating in my mind, I was to learn that good lawyers step away fromthe force of their own logic to check it against common sense. Andthe best lawyers can convince their clients, or judges, to change theirpositions in deference to the sensible.VI. THE WHOLE PERSONIn my years since clerking for Judge Shapiro, I have turned to heroften for advice about where and what to practice, about being afemale partner in a big firm, and about motherhood and seasons inthe law. I am always mindful that I am asking advice from someonewho has done it all: family, friendship, several careers, communityservice, and leadership in the profession. She will advise me, I fear, totake on more than I can. Yet she never has. For someone who is sosuccessful, Judge Shapiro has a nuanced and even spiritual view ofachievement. I think she believes that achievement is the realizationof potential. At its best, it is the unified expression of the wholeperson.That is certainly the kind of achievement she has modeled for herclerks, particularly, I think, for the women. Sometimes at the end ofthe day, one of us would help bring her many bags down in theVol. 52: 25NORMA LEVY SHAPIROelevator to her car. The bags themselves, so dense and heavy,reflected the elements of judge Shapiro's life all looped together.There were the feminine quilted bags stuffed with briefs andschedules and monographs. There were the canvas bags given to theJudge from this bar association or that conference-she is active in somany. These too had papers or maybe a present she was going todrop off and a newspaper article she had cut out for her husband.Often, the Judge would not be going straight home, but to a JewishPublication Society Board meeting or to a synagogue function, to seeone of her sons, or to visit a childhood friend who was home ill in theold neighborhood. Wherever she was going, she would invariably becarrying a gift with a personalized inscription to recognize themilestones or alleviate the pains of another.We clerks could see that the Judge's days were full with all theaspects of her personality and that she drew on them throughout theday. She did not cordon off the nurturer from the hard-headedlawyer, shaking out her domestic self when she arrived home in theevening. The intellectual jurist, the warm-hearted grandma, and thedemanding perfectionist were all there in the belly laugh, in the sharpquestion, and in the bear hug.20031* * * * * *

Tender Justice: Judge Norma Levy Shapiro\u27s Hard-Headed Humanity

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Tender Justice: Judge Norma Levy Shapiro\u27s Hard-Headed Humanity

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