Former Vermont Secretary Of State Reflects On Her Work With Justice Ruth Bader Ginsburg
Long before she became Vermont's secretary of state or the head of the Agency of Natural Resources, Deb Markowitz was a law student at Georgetown Law in Washington, D.C. That's where she studied the work of a woman who was then a judge on the U.S. Court of Appeals, but who had already successfully argued five of the six cases she brought before the Supreme Court. That woman was Ruth Bader Ginsburg.
Jane Lindholm spoke with Markowitz about her time spent studying and getting to know Justice Ruth Bader Ginsburg, and reflected on her judicial legacy after her death on Sept. 18, at the age of 87.
Our guest is:
- Deb Markowitz, former Vermont Secretary of State and Agency of Natural Resources Secretary who, with Ginsburg's help, wrote In Pursuit of Equality: One Woman's Work to Change the Law, an overview of Ginsburg's strategy as a litigator to outlaw sex discrimination, published in the Rutgers Women’s Rights Law Reporter journal in 1989
Broadcast live Monday, Sept. 21, 2020 at noon. Rebroadcast at 7 p.m.
The following has been edited and condensed for clarity. You can find more conversations from this episode here, along with the full audio.
Jane Lindholm: This must be sad for you, especially as you think about the time you've spent with this woman, and how you knew her and knew her legal strategy and legal approach so well. Could you tell us briefly what it was about her career, even in the 1980s when she was then, as I said a judge, that made you want to study and learn from her?
Deb Markowitz: I was taking a class on women's legal history and we all had to do a paper with original research. So I spoke to my professor, Wendy Williams, who actually used my oral history to help her write the first biography of Justice Ginsburg after she was on the Supreme Court. But I suggested to Wendy that maybe I should do an oral history of then-Judge Ginsburg, to tell the story of how the law was changed from a time when women routinely were patronized and excluded and fired for just being pregnant, and blocked from jury duty or blocked from even having their own bank accounts, to the 1980s, which I thought was pretty modern, when there was this equality under the law.
I remember Wendy saying, "But that's not history, that just happened." And then she realized that it had been almost 20 years since those cases and indeed, it was history.
I was very lucky in that both Wendy and another professor, Sue Ross, both of whom had worked with Justice Ginsburg at the ACLU and the Women's Rights Law Project - they came and joined me for a conversation with then-Judge Ginsburg that then teed off a number of weeks, sitting with Judge Ginsburg, going through her files, hearing her stories, and then writing a paper from that.
Jane Lindholm: What was it like? You spent weeks with her in her chambers recording her. Was it hard to pull things out of her or was she a good speaker?
Deb Markowitz: She was, at the time, extremely socially awkward. And what was so interesting is she was a much more casual writer, because we had a correspondence as I was writing my paper. She was reviewing it and putting in side notes.
In person, she was very socially awkward. She was very formal. And then in her notes to me, she would sign them ‘Love Ruth’, which I know I've got it in some file somewhere - I'm trying to find some of those letters.
But she was a serious person. Of course, I was seeing her in her chambers when she was at work, but she loosened up when she told the stories. She had very fond memories of those years, even as she told about her experience going through law school and being one of the few women in the '50s up at Harvard and then the heartbreak of not getting a job. Despite graduating number one in her class, the only jobs she was offered were legal secretary jobs. And so she ended up clerking for a judge and that really set her off in a great direction.
Jane Lindholm: Well, Deb, while you're speaking of that, let's play a little bit of the tape of what she told you about that time and what it was like to not get a job out of law school. Here she is:
Jane Lindholm: Pretty incredible to hear her voice there. I'm curious: How did that resonate with you? You know, you were a law student 30 years ago now, but it was nearly 30 years from when she had graduated law school when she was speaking to you. It's remarkable to think about those two time periods and what has changed and what hasn't for women in their professional lives.
Deb Markowitz: Yeah, so there's a piece of the conversation that follows where I talked about how that was so far in the past. I went to Georgetown Law and I went there in part because the class was 50% female and 30% people of color because they were very active about having diversity, even in the 1980s. Across the profession, there was a rising number of women, but it was still a male profession. I went in and I said something really naive about how that was all done and in the past, and she [Justice Ginsburg] laughed and Wendy and Sue said, "You're naive. There's still discrimination out there." I would have given you that clip, except it was a little embarrassing.
Jane Lindholm: And did you discover that for yourself after she had said it or did you find that you were able to move through your professional career without that in some way?
Deb Markowitz: Well, I think we're still struggling with that today. I mean, certainly there are some significant changes. The law has changed. And what Justice Ginsburg rightfully is known for is making it legally impermissible to have a distinction in law based on gender, that just because you're a woman, you don't have the same rights or benefits of a man.
So that has clearly changed. The fact, though, is that we still have a long way to go. And we see that when you look at the numbers of women in the legal profession who are partners or managing partners. We see that in government, when we look at how many women have served as governor or president or are in the Senate. And so we have come a long way and have a lot to thank Justice Ginsburg for. But we're not there yet.
Jane Lindholm: Well, let's talk a little bit about why Justice Ginsburg decided to focus on sex discrimination and how she did it. And we'll start with another piece of tape that you have kindly shared with us, where you asked her what drew her to a focus on sex discrimination. And she kind of jokingly say "pure vanity," but then she shared her actual motivation.
So here's a little bit of what she said:
Jane Lindholm: Interesting to hear her there speaking about her motivations for pursuing sex discrimination cases with the ACLU, which she became very well known for. I mean, that was a prominent strategy. And she argued, I think, six cases before the U.S. Supreme Court and won five of them, which was pretty remarkable.
Deb Markowitz: It was really remarkable. In our conversation, it was really all about her strategy.
When she started, states and the federal government could pass any law that distinguished between men and women if they even had just a rational basis. They had to have some way to rationalize it, but there was no question about it. And what Justice Ginsburg did is she said, "Look, the 14th Amendment of the Constitution guarantees equal protection of the law."
And already, for classifications that impacted fundamental rights like liberty or speech, or impacted a protected class like race or national origin or religion, the court had begun to apply a strict scrutiny, saying that legislatures could only treat Black people and white people differently, or Christians and Jews differently if they pass this strict scrutiny, which is to further a compelling governmental interest. And the law has to be very narrowly tailored to achieve that interest. So they presume it to be not acceptable unless the government can meet this very challenging test.
So her goal was to bring sex discrimination into it. There was a court case where the court said it was presumptively impermissible to distinguish on the basis of congenital and un-alterable biological traits of birth over which the individual has no control, and over which the individual should not be penalized. And Justice Ginsburg felt that clearly, that was gender.
So her goal was to bring easy cases, cases that just on their face seemed like they didn't make sense; it was unfair. And slowly lead the court down the garden path until they said, "Yes, strict scrutiny can apply to to gender discrimination, to treating women differently on the basis of law."
Now, note that she didn't actually get all the way. And in part, what my paper does, and this interview with her showed, was that the problem was: she didn't control what cases came to the court.
All around the country, the ACLU was representing people and trying to pick out the cases with the compelling facts that she knew - because she knew the justices; she'd studied them - would make sense to the justices. But, of course, lawyers represent clients and sometimes cases come that are unplanned because of lawyers just trying to help their clients win. And because of some of those cases, they didn't get all the way.
So right now, today, there's an intermediate level of scrutiny that applies to distinctions based on sex. And that is that the law has to further an important governmental interest and it must do so by means that are substantially related to that interest. And so this level of test is used really in equal protection cases that relate to gender classifications, and then also they've applied it in some first amendment cases as well.
Jane Lindholm: This deep understanding of Justice Ginsburg's strategy as a litigator is part of why you were called on, as I understand it, and interviewed by the Clinton administration, when Ruth Bader Ginsburg was being vetted to be Clinton's choice for the Supreme Court.
Deb Markowitz: That is right. So I was the only person who had actually studied her work. And in fact, it was my 15 minutes of fame. I was also called on by The Washington Post and The New York Times because she was under the radar. And I think that's in part why my professors were so thrilled to help me with this and to help me connect with Justice Ginsburg, because they really thought people should know about her work.
Now, an interesting part of our conversation is: during the interview, I asked her what her one regret was. And her one regret was that she would never serve on the U.S. Supreme Court.
And that was because she was already in her 50s and Ronald Reagan had won a second term. And she felt like she was too old, that she had aged out because presidents want to appoint young people to the court. They want to appoint people in their 40s so that they could have 40 years on the court and make a real, long, lasting difference.
And I only learned later it was really her husband, Marty, who launched an all out offensive to lobby to get her appointed. Then Clinton ended up appointing her to the court.
I think that was kind of ironic and also lovely. She ended up not having that disappointment. And it was so wonderful seeing how she became a cultural icon. Really well deserved. She's an extraordinary person.
We've closed our comments. Read about ways to get in touch here.