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Winning Ways

Professor Barbara Babcock defends the rights of the accused, supports women in the legal profession and is one of the best darn storytellers around.

Photo: Glenn Matsumura

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By Diane Rogers

‘We'll call her Geraldine, because that was her name,” the professor says, and every laptop keyboard suddenly goes silent. Barbara Babcock is beginning a story, and no one in the Law School classroom wants to miss a word.

Geraldine had already been incarcerated for 15 years for possession of heroin, Babcock continues. The few years the poor black woman had spent free, she’d been imprisoned by her addiction. Now she was facing her third charge of possession. If convicted, she would spend the next 20 years in prison, with no possibility of parole until she was 62.

“The federal statutes were draconian—so draconian that they were later repealed,” the Judge John Crown Professor of Law tells her students, taking a slug from her Diet Coke and planting a fist on her left hip. “Geraldine’s only hope was to get a jury that would show her mercy.”

The case came up in the late 1960s, while Babcock was director of the Public Defender Service for the District of Columbia, living a dream she’d had since she was 7. Grabbing at evidentiary straws, Babcock sent Geraldine to a local psychiatric hospital, hoping doctors there would find a mental disorder. The doctors returned a diagnosis of “inadequate personality,” and Babcock went to trial with an insanity defense.

She also took into the courtroom an unwavering trust in the legal system. “I believe this deeply, that part of the magic and mystique of the jury system is that juries perform well, and that the interaction of any 12 people will do,” Babcock explains. On the strength of that belief, she opted to accept the first 12 prospective jurors whose names were called, without questioning any of them. The startled prosecutor agreed to the same dozen.

And then the gravity of the situation sank in. “I finally took a look at the jury, and it was the worst-looking one I’d ever seen,” Babcock tells the class, to laughter. Most problematic was Juror No. 6, an imposing, thin-lipped woman who rolled her eyes every time Babcock spoke about her client’s background and drug addiction. For three days, Babcock paced the courthouse halls while the jury deliberated. Finally, the verdict: not guilty. Defender and defendant wept and embraced, and they were soon joined by Juror No. 6, who also was in tears. “It took me three days,” the woman blurted out. “When we started, it was 11-to-one for conviction.”

In Babcock’s classroom, first-year law students who have been hanging on every dramatic turn gasp. “Everyone who deals with juries has a favorite story, and that’s mine,” Babcock tells them. “All the time I thought Juror No. 6 was being so distracting, she was really shaking her head at the terrible things that had happened to Geraldine. And to think that I might have struck that woman [from the jury]!”

The first female professor to be hired at Stanford Law School and a former assistant attorney general in the U.S. Department of Justice, Babcock has followed two parallel paths throughout her career: defending the accused and their constitutional rights, and advancing women in the legal profession. One of the nation’s leading authorities on civil and criminal procedure, she also wrote the first legal textbook on sex discrimination. In 30 years at the Law School, she’s become known as a gifted teacher, dedicated mentor and, above all, raconteur par excellence.

“There’s a Babcock art form that’s got a long, slow windup—it’s very much the Faulknerian storyteller thing—and it takes a while to see where it’s going, but it doesn’t matter because the journey is the thing,” says colleague and neighbor Bob Weisberg, JD ’79. “I suspect the Southern narrative form was very effective in closing arguments when she was a trial lawyer.”

“I find myself telling her stories to my students, and by the end of the course, they long to have had Barbara for their teacher,” says Toni Massaro, dean of the University of Arizona law school and co-author with Babcock of a civil procedure textbook. “She’s much funnier.”

A Phi Beta Kappa graduate of the University of Pennsylvania, Babcock attended Yale Law School, where she served on the Yale Law Journal and was inducted into the Order of the Coif. She emerged from New Haven’s Gothic archways with her Southern charm and folksy witticisms intact. “Some critics think mediation is like burning aromatherapy candles,” she will say. Or, “That is one big, buy-the-store motion.”

One of 12 women in Yale’s 1963 graduating class of 180, Babcock remembers male students frequently asking her what she was doing in law school. “Even teachers would say things like, ‘You realize there’s a burden on you because you’re taking a man’s place.’” Her first-year moot court competition was also a first for Yale, with two women facing off: Babcock vs. her roommate, Eleanor Holmes Norton, who would become a civil rights activist and congressional representative from Washington, D.C. “Such a generous person,” Norton says about Babcock in Joan Steinau Lester’s new biography, Fire in My Soul: Eleanor Holmes Norton (Atria Books, 2002). “Loving, but tough, and the fact is: she beat me!”

Babcock learned her respect for the profession on the knee of her country-lawyer father. “He was an alcoholic, which was traumatic for the family, but he was so wonderful when he was sober,” she says. “He was the one who made me see the lawyer as hero, as a person who could do things for people that they couldn’t do for themselves. I always thought a lawyer could fix things, and I started saying at a very young age that’s what I was going to be.”

Specifically, Babcock wanted to be a public defender. “I was brought up to be religious, although I’m not anymore,” she says. “But there was this idea that you have a duty to help the less fortunate, and I’d always felt like an underdog myself.” After graduating, Babcock spent two years clerking for Judge Henry Edgerton of the U.S. Court of Appeals for the District of Columbia Circuit, then was hired by defense attorney Edward Bennett Williams. “It was an extremely exciting and glamorous practice, carrying the briefcase of a courtroom master, and I flew on an airplane for the first time—first class—to represent all these big, wealthy mobsters,” she recalls. “I learned a lot about how you represent people in criminal cases when you have almost unlimited resources.”

But during the two years Babcock worked for Williams, she came to realize she might never be assigned her own clients. In 1966, she joined D.C.’s fledgling Legal Aid Agency, and two years later, when the agency gave birth to the district’s first public defender service, she was named its director. The 30-year-old oversaw a staff of 40 lawyers and also found time to represent clients, quickly making a name for herself as a trial lawyer. “She was technically very good at summarizing facts in a persuasive way, without making the jury feel like they were being conned,” says Tom Grey, ’63, her Law School colleague and, since 1979, her husband. “She looked at them and established rapport and made them think they should really care about her and about what she thought of them—that she was counting on them to do the right thing.”

In the spring of 1971, Babcock began commuting to Yale once a week to teach a course on women and the law, at the request of female law students. “Overnight the percentage of women at law schools had gone from three to 20,” she says. “Suddenly you had all these women in law school, and one of the first things they did was say, ‘Good God, there are no women judges, no women teachers, and we’re not even mentioned in the curriculum!’ Instead of, ‘We’re in these hallowed halls—how lucky can we be,’ it was an angry, ‘Why aren’t they ready for us? We’re as good as anybody and we’re paying the same tuition!’”

Soon Babcock was being recruited by Yale, Harvard and the University of Pennsylvania. “Law schools were just desperate,” she says. “It was a case of urgent affirmative action, of them saying, ‘We’ve gotta get some women in here.’” In 1972, Babcock accepted an offer from Stanford, becoming the first woman professor to be hired and subsequently tenured at the Law School. That same year, the School of Engineering hired a tenure-track woman and the Graduate School of Business hired its first two. “We were asked to be at a press conference in San Francisco, at which time the University would announce to the world that they had done this radical act of hiring women at three schools,” says Myra Strober, one of the GSB professors, who now works in the School of Education. “So I asked Barbara, ‘What do you think we should wear?’ And she said, ‘Myra, we are the dress code.’ I loved that, and we’ve been friends and colleagues and warhorses ever since.”

In 1977, Babcock took a leave from Stanford to return to Washington as assistant attorney general for the civil division of the Department of Justice in the Carter administration. Supervising 700 lawyers who handled more than 40,000 cases involving the United States annually “was like running the world’s largest law firm,” she says. “I wanted to make the government into a model litigator. I was always issuing orders and making findings. I had never worked so hard, and I just about killed myself.”

Babcock says she measures her accomplishments in her two years at Justice by the percentage of her orders—almost all—that were repealed by the Reagan administration. But Supreme Court Justice Ruth Bader Ginsburg has said that one aspect of Babcock’s work there had a lasting impact. “Barbara ran that giant law office with a secure hand and spent countless hours helping literally to change the complexion of the U.S. Judiciary,” Ginsburg wrote in 1997, to support Babcock’s nomination for the American Bar Association’s prestigious Margaret Brent Women Lawyers of Achievement Award. Noting that Babcock “constantly called to the attention of the judge-pickers talented women and minority group members well qualified for service on the bench,” Ginsburg suggested that she owed her own appointment to the D.C. Circuit to Babcock. “I do not believe I would have gained that good job without her constant endeavors to place and move up my name on the candidates list.”

During the five years when she was the only female faculty member at the Law School, Babcock says, her male colleagues were “really, really nice,” and she didn’t run into any overt hostility. “Sometimes students would say to me, ‘It’s just you and all these white men—how can you stand it?’ But that’s what I’d been doing for years, and I was inured to it. It wasn’t until things began to change and we got six or seven women teaching here that I got angry—20 years after the fact! No one could understand it, and they all thought I was going through menopause.”

Today, Babcock can look around her civil procedure classroom and see the next chapter: 30 of her 52 first-year students are women, reflecting a trend at law schools nationwide. That helps her remain idealistic about the law at a time when many in the profession are engaged in what she calls “agonized self-criticism about its purposes.” Law “has become a bottom-line business, in which lawyers charge by the hour and work all the time,” Babcock says. “It’s really inhuman, and there’s no time left for pro bono work. But women are changing that—for everybody—because they won’t live that way. Every single woman who’s out there insisting on six months of maternity leave and not getting off the partnership track is contributing to this movement. We will accommodate the lives of women, and that in itself will change the profession.”

In 1995, Babcock teamed up with Law School reference librarian Erika Wayne to create the online Women’s Legal History Biography Project. The website features student papers from Babcock’s course on women and the law that profile pioneering women lawyers and show how the women’s movement has shaped legal history. This spring, Babcock hopes to finish her own women’s legal history project: her book about Clara Shortridge Foltz.

Who? That was Babcock’s question in the early 1980s, when she got a call from the Santa Clara County public defender offices. The caller had seen Babcock’s name cited as an ally of history professor Estelle Freedman in Freedman’s widely publicized fight for tenure at Stanford, and wanted to know if Babcock could get Freedman to write something about the woman who had founded the public defender’s movement. “I said, ‘The woman?!’ Then I said, ‘Forget Estelle, I’ll find out.’ And that’s how I got started on Clara.”

Since then, Babcock has been tracking Foltz’s faint but trailblazing footprints. The first woman to be admitted to the California Bar, in 1878, Foltz presented the idea of the public defender’s office at the 1893 World’s Fair. She was the first female deputy district attorney in Los Angeles County and later ran for governor, at the age of 81. Last summer, Los Angeles officials renamed the county’s main criminal court complex the Clara Shortridge Foltz Criminal Justice Center; and at the rededication ceremony, U.S. Supreme Court Justice Sandra Day O’Connor, ’50, JD ’52, credited Babcock’s work for “contribut[ing] much of the knowledge we have of Foltz today.”

When she isn't researching or teaching, Babcock devours modern novels, plays tennis and racquetball, putters in the garden of her campus home and accompanies Grey on bird-watching outings (“Tom’s the serious birder, and I’m more of a bird voyeur”). And then there are all those hours she spends helping colleagues and students.

“So much of what Barbara has done at the Law School isn’t the public stuff, but the private counseling and mentoring,” says Deborah Rhode, the Law School’s second long-term female faculty member, who likes to joke that she was hired to provide a friend for Babcock. “It’s hard for me to imagine having survived intact without Barbara’s support and wisdom.”

Katherine McCarron, JD ’02, who took two foundational law courses from Babcock and also worked as a research assistant on the Foltz project, remembers a never-ending line of students outside Babcock’s door whenever it was open. “She’s a law professor, she ran the civil division of Justice, she was the first public defender in Washington—she has achieved all those things; but more than that, she believes in her students. She gives you the gift of believing in yourself.”

On the final day of her civil procedure course last semester, Babcock spent a good 30 minutes talking with her first-year students about the relationship she hoped would continue. “I know a lot more about you than you think I know, and I want to continue to be your mentor and teacher,” she said. “I do believe that to be a really good lawyer you need to be a really good person. And being a lawyer also means standing for ideas and due process and order, for staying calm and seeing the other side. Be idealistic about your life’s work and it will sustain you.”

There were sniffles all around, and then the students got up for a standing ovation. “Well,” Babcock said, at an atypical loss for words. “That’s a first. I’ll really take care of you.”

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