Wednesday, May 22, 2013

Bessie Margolin (1909-1996)

[My exam in American Legal History usually includes a biographical essay.  The 2012 exam, for example, had one on Marion Harron; the 2011 exam had one on Bernice Lotwin Bernstein, and the 2010 exam profiled Ida Klaus.  For this year's question, I drew heavily upon Marlene Trestman, “Fair Labor: The Remarkable Life and Legal Career of Bessie Margolin (1909-1996)," Journal of Supreme Court History 37 (2012): 42–74, as well as my own research.  See also Karen's essay, Portia's Deal, and her post on the Frankfurter quote below.]

Bessie Margolin (credit)
Bessie Margolin (1909-1996) was born in Brooklyn to Russian Jewish immigrants.  When she was two, the family moved to Memphis, where, when Bessie was four, her mother died in childbirth.  Her father felt incapable of carrying for his children, so Bessie and a brother were sent to live at the Jewish Children’s Home in New Orleans.  There she received an excellent education and was deemed “a very splendid girl, far above average in every way.”  At sixteen she left the Home and enrolled in a women’s affiliate of Tulane University.  After two years she enrolled in Tulane itself to complete her bachelor’s degree and a law degree.  She was the only woman in the Tulane Law School when she started.  She became Civil Law Editor of the Tulane Law Review.  In 1930, at the age of twenty one, she graduated second in her law school class of twenty three, “a fraction” behind the top student.

Margolin impressed Tulane’s dean with her “unusual professional ability,” her “unusually charming personality,” and her “unusually broad, balanced, and progressive social outlook.”  She also impressed the Yale law professor Ernest Lorenzen, who published an article in her volume of the law review and hired her as his research assistant.  She would spend the next three years in New Haven, the last on a prestigious fellowship as a doctoral candidate in law.  Her thesis, directed by William O. Douglas, was on the French law of corporate reorganizations.  Douglas called it meticulous and “of the highest caliber,” with “an air of realism about it.”

While at Yale, Margolin also wrote a comment on pending legislation on corporate reorganizations.  After the Yale Law Journal, edited that year by Abe Fortas, published it over her initials, partners of eminent law firms inquired after its author.  Their interest in a potential hire vanished when they learned that “B.M.” was a woman.  After receiving her legal doctorate in 1933, she took a temporary job at the Inter-American Commission of Women in Washington, where she researched the legal status of women in Latin America.  Then the creation of the Tennessee Valley Authority (TVA) presented her with a better alternative.  Lorenzen assured TVA’s personnel director that Margolin “is intent upon a legal career or professional career as a primary objective from which she will not be deflected by marriage.”

In the late summer of 1933, Margolin started as a research attorney in TVA’s Knoxville office at a salary of only $2,000.  About that time, a TVA lawyer described her telegraphically: “Tulane, Yale, TVA.  One of the Washington ‘prima donnas.’  Excellent on research.  A good kid.  Sadly underpaid and a bit sore on things.”  He predicted that she “will be all right” under the newly appointed general counsel James Lawrence Fly, and in fact Fly promoted her to Associate Attorney and raised her salary to $3,600.

The TVA’s legal division, one of Margolin’s coworkers recalled, was “an extraordinary able, brilliant group of relatively young lawyers, who had outstanding academic records and law school achievements.”  Fly considered his legal division TVA’s central policymaker.  He let it be known, a lawyer recalled, that “the legal division was going to be the key to the works.”

Fly set Margolin to work organizing evidence, researching legal issues, and writing substantial portions of the briefs in two challenges to TVA that went to the U.S. Supreme Court.  Although she can be seen sitting, hatless, behind TVA’s lead counsel John Lord O’Brian, in a photograph of one trial, she never argued in any branch of the cases.  Although Fly promoted her to Senior Attorney and raised her salary to $4600, she only tried a few condemnation cases “of lesser importance.”

In 1939 Margolin moved to the legal staff of the recently created Wage and Hour Division of the Labor Department, charged with implementing the Fair Labor Standards Act (FLSA).  She asked for $5600, even though she knew that the general counsel might “think this an awful lot ‘for a girl’”; she was pleased when she received $5000.  Save for six months in 1946, when she was in Germany helping organize trials of Nazis, she remained at Wage & Hour until retiring in 1972.   From the start, she appeared in court.  Her argument of motions in federal district court in New Orleans was extensively covered by the local press.  Margolin is “a brunette, with flashing black eyes and a stunning figure,” a newspaperman reported.  “When you see a face like Miss Margolin’s you almost immediately wonder what that ‘Miss’ is tacked on before for.”  At first, she declined to discuss her marital status.  “I’m interested in labor and I’m a New Dealer,” she said.  “Incidentally, I’m not a radical.”  When pressed, she finally responded that she “hadn’t had time for love.”
A few months with time cards and payroll records in damp New England warehouses convinced Margolin that trial work was a “deadly bore,” so she transferred to Wage & Hour’s appellate division.  She would ultimately argue 150 cases before the U.S. Circuit Courts (winning 114) and 28 before the U.S. Supreme Court (winning 23).  Frankfurter, who sparred with her in oral argument, described her as “a very good girl & a good advocate but not a lawyer of unsettling brilliance apart from the deft use of her feminine charms.”  She was promoted to Assistant Solicitor of the Department of Labor, but she never became Solicitor or a federal judge, posts she coveted.  Instead, she remained an imposing presence in the Department of Labor.  One Solicitor described his selection process as having three stages: “I had to be nominated by the President, confirmed by the Senate, and interviewed by Bessie.”

Regular visits to the Elizabeth Arden Salon, during which she sometimes edited briefs, kept her impeccably coiffed.  When she entered a courthouse, “she walked with absolute assurance that a door would be opened before she got to it.”  After the Equal Pay Amendment to the FLSA was passed in 1963, she became its greatest defender within the Department of Labor.

[As you can see, the essay does not mention Margolin's affair with Fly, a married father of two, which commenced at TVA and continued after he became chairman of the Federal Communications Commission in September 1939.  Because I had not discussed sexuality and the legal profession in class, I thought the issue too challenging for students to tackle for the first time in the exam room.  FCC Commissioner Clifford Durr described the affair as "one of these things that was known but wasn’t known."  The chairman of an ad hoc investigation of the FCC threatened to make it public until House Speaker Sam Rayburn (like Fly, a Texan) instructed him not to.]