Shirley and Seth Hufstedler loved to climb mountains. The week before the U.S. Department of Education opened its doors in 1980, a profile of them reported that their "favorite hobby is mountain climbing" and noted they had made five trips to the Nepalese Himalayas. (1) When interviewed decades later, Shirley Hufstedler fondly recalled how she and Seth "walked up and down mountains all over the world." (2)
Those were not the only mountains Shirley Hufstedler climbed. To ascend to the highest ranks of the legal profession she had to overcome enormous obstacles then facing women who pursued a legal career. Although the dream of making a woman's first ascent to the Supreme Court ultimately eluded her, she blazed a trail for those who followed.
As a law student I was such a huge fan of Judge Hufstedler that I did something enormously foolish. I only applied to her for a clerkship. Only later did I realize how risky this was because she had only two clerks and no policy of favoring Stanford Law graduates.
I was drawn to Judge Hufstedler precisely because she was a trailblazer. She became an American success story by doggedly challenging the sexist stereotypes that had blocked women from legal careers. Despite graduating near the top of her class at Stanford Law School in 1949, no law firm would hire her for a legal job because she was a woman. Two years later, when future Justices Sandra Day O'Connor and William Rehnquist graduated from Stanford, Rehnquist had no problem finding a job, but no one would hire O'Connor because she was a woman.
Judge Hufstedler opened her own one-woman law practice. Her big break came when a former professor invited her to help defend the state of California in the Arizona v. California (3) water rights dispute being heard by the Supreme Court. Her brief-writing work on the case quickly earned widespread admiration, though she was not at counsel table when the case was argued before the Supreme Court.
California Governor Pat Brown took notice of Shirley Hufstedler's extraordinary legal talent and appointed her to the Los Angeles County Superior Court in 1961. She then was the only woman out of 120 judges on that court. She quickly established herself as a valuable member of the court, pioneering a procedure for issuing tentative decisions that helped reduce the court's enormous backlog of cases. When asked whether she felt like she had to do anything special to fit into a male-dominated world, Judge Hufstedler replied: "No, I just did my job. And I think doing my job and doing it capably was adequate to be able to help everybody else make a judgment that they didn't have a fox in the hen house." (4)
In 1966 Governor Brown elevated her to become an Associate Judge on the California Court of Appeal. Two years later, President Lyndon Johnson appointed her to the U.S. Court of Appeals for the Ninth Circuit. Judge Hufstedler was only the second woman ever to serve as a judge on a U.S. Court of Appeals and the only woman serving at the time. Today, 60 of the 167 active judges on the Courts of Appeals are women. (5)
On my first day as a law clerk, Judge Hufstedler told me that her job was "to do justice." This did not mean ignoring or rewriting the law, she explained, but rather having a fierce...