Monday, April 3, 2017

Woman Lawyer: The Trials of Clara Foltz by Barbara Babcock

Source of book: I own this.

This book was my official selection for Women’s History Month (March). Here are my past selections:

A Vindication of the Rights of Women by Mary Wollstonecraft (2015)
The Handmaid’s Tale by Margaret Atwood (2016)

Woman Lawyer tells the story of Clara Shortridge Foltz, the first female lawyer in California. She wasn’t the first female lawyer in the United States, but she was one of the first, a true pioneer. Furthermore, she was instrumental in eventually bringing women’s suffrage to California - and eventually the entire nation. But perhaps her greatest accomplishment was founding the movement to establish Public Defenders.

Barbara Babcock is herself a lawyer as well as a writer. She came and spoke to our local bar association several years back, when the book came out. Unfortunately, I had a schedule conflict and was unable to attend - I really wish I had. Babcock admits outright that she cannot be an unbiased biographer. As a female lawyer and a feminist, she naturally sympathizes with Foltz. That said, she scrupulously tells the bad with the good, Clara’s faults and failures along with her virtues and triumphs. As Babcock puts it, she aimed to “mix the hag with the hagiography.” What results is a compellingly human portrayal of Foltz. She comes alive on the page because she has depth. She is a heroine but not a superhero. 

One interesting bit in this regard is that Foltz lacked a certain amount of business sense. On the other hand, she was a genius at crafting her image. She got fantastic press coverage in large part because she sold herself really well. 

Clara Foltz had an interesting start to her life. Her father was originally a lawyer himself, but then turned to preaching. Her brothers would go on to a mild degree of renown themselves, as newspaper editors, congressmen, lawyers, and writers. However, her father recognized that Clara showed potential from a young age. “Ah, if only you had been a boy, then I would have trained you for the law.” Clara was not amused at this. Her mother didn’t think it was funny either. “One of these days she will take it into her head to study law, and if she does, nobody on earth can stop her.”

Clara was academically inclined, and mastered subjects easily. However, her education was interrupted at age 15, when she eloped with Jeremiah Foltz, a soldier a decade her senior. She would bear five children, and move first to Oregon, then to California with him.

Jeremiah wasn’t a particularly good husband by any standard. He was continually in debt, was away from home for weeks at a time, and eventually deserted her for a woman in Oregon.

And thus, Clara was left to fend for herself in her mid-20s, with five kids, and only the help of her parents, who didn’t have much themselves.

Clara Foltz then decided to study law, and become a lawyer. And, as her mother predicted, nobody could stop her. Back then, law schools were unusual - and for people already admitted to practice. She found a lawyer who would apprentice her (although he was far from prestigious), and challenged the rule forbidding women to practice law. It took some tries, including eventually lobbying for passage of a law. Then, for several decades, the law in California (and quite a few other states) allowed women to practice law...but not vote or serve on juries.

This is obviously making a long story very short indeed. The book tells the tale in thrilling detail, including all the dirty politics and open misogyny that Foltz had to overcome.

But the admission to the bar was only the first part of the story. Even with the right to practice, Foltz struggled to make a living. The more lucrative areas of practice were dominated by men, who had no intention of sharing. She ended up doing a lot of indigent defense, and smaller cases that didn’t pay that well.

Thus, she turned to public speaking to supplement her income - and this was quite successful. Apparently, she was a brilliant speaker, and in demand by both political parties for her skills. (She switched a couple of times, depending mostly on who was more sympathetic to Women’s Rights at the time.)

This book of necessity also tells of many other feminist icons who collaborated with Foltz or who were active at the same time. Elizabeth Cady Stanton (one of whose great-something grand-nieces is a friend of mine) figures in the story as a major luminary in the movement for suffrage, and her lifetime overlapped Foltz’s for several decades. The one who gets the most words in this book, though, is Laura Gordon, who was California’s second lawyer, and was a close friend and collaborator with Foltz. The two of them worked together on many projects throughout their lives, and without their mutual support, neither would have been admitted to the practice of law. One of the fascinating stories in the book is the case where they went up against each other.

Like Foltz, Gordon was also divorced - the grounds were her husband’s adultery, which was interesting because California was one of the few states that allowed the wife to get a divorce on those grounds. Most other places - and throughout most of history - a woman had no recourse if her husband slept around. Both Foltz and Gordon, however, claimed to have been widowed. It was considered to be a sign of the woman’s poor character to be divorced, and both knew that under the sloppy ethical standards of the day, opposing counsel would be sure to drag their divorces into their closing arguments. (Seriously, the most shocking thing about this book is the obvious flagrant misconduct lawyers - particularly prosecutors - got away with in the late 1800s. Good grief!)

Later, however, Foltz defended the right to a divorce. As she put it,

“When love is slain, the civil contract is but the husk and shell of marriage. Long before a divorce is sought love has ceased. All that is sacred is dead, and a civil court in a judgment of divorce only gives legal sanction to a decree that nature has already entered in their hearts.”

I have said something to the same effect (although not as poetically) when asked how I can practice family law, and end marriages.

One of the cases that Foltz tried was one involving such a marriage. Actually, the facts are shocking and horrifying. It started when the husband sued his wife to reverse the gift of some real estate he had made to her. He had become paranoid that she was (allegedly) seeing another man. In the course of the trial, it came out that he treated her like a slave. In 23 years, she had been pregnant an incredible 21 times. Only three children survived. Eight had been miscarriages, and there was strong evidence that they were caused by his insisting she overwork herself - and his refusal to get her prenatal care. He apparently didn’t even bother to attend the funerals of his infants.

The most horrifying bit, though, was that the court refused to grant her a divorce! I’m not kidding. Abuse and neglect were not enough to get a woman a divorce. Since she couldn’t prove he cheated on her - and he couldn’t prove she had either - no divorce. She was stuck with a man who treated her like a slave, and was slowly killing her with overwork and pregnancy. I am so glad I live in the 21st Century.

Foltz never did remarry. Perhaps her vision of marriage as egalitarian was a bit of a turnoff. And, there is no doubt that she would never have consented to give up her career for a man. In her speeches, she would quote a Tennyson poem to the effect that man and woman must become more alike in order to form a perfect union.

“[If] husband and wife would blend in the harmony of a complete union they must pursue some common theme. In marriage, as in mathematics, only parallel lines keep close together.”

Foltz therefore encouraged women to study - particularly law, of course - so that they would be the intellectual equals of men, and therefore form better relationships. I could not agree more. Marrying my intellectual equal (or better…) has been the best decision I could make. I am grateful that I have a partner, not a subordinate.

Gordon and Foltz, though, did not merely struggle against gender roles in marriage. They faced shockingly obvious misogyny. There are far, far too many infuriating quotes - many from legislative sessions and closing arguments in cases - these are public record - than I have room to quote. Let me just mention the one when Foltz was still seeking admission to the bar. A man compared women to dogs and horses, which can be trained to perform certain acts, but who could obviously not do them of their own talent. Gah!

Even at the turn of the century, when the Suffragist movement was gaining steam, opponents of feminism claimed - as they do now - that feminist men were “weak and effeminate” while suffragist women were “aggressive and unsexed.” Here we are, in 2017, and we are still having this same freaking argument. Here, in 2017, I still hear people saying that feminist women are all ugly and are feminist because they couldn’t catch a man. (Hey, I have, like, several million women I could list as proof to the contrary - including my wife - but, hey, never let the facts get in the way of prejudice, right?

It is not surprising, then, that Belva Lockwood, who would run for president on a third party ticket in 1884 and 1888 - 35 years before women would get the national vote - had the following to say about women’s rights:

“We shall never have equal rights until we take them, nor respect until we command it.”

The Civil Rights Movement decades later would echo the same sentiment.

Alas, the road would be long and hard. As Boss Buckley is quoted in this book as saying about why his party lost an election, “I don’t know, but I think they didn’t get enough votes.” Of course, kind of hard when half the population can’t vote - the very same people whose rights are at stake…

Speaking of delightful political quotes, how about this one by Robert Ingersoll, which seems fitting for our recent election as well:

“Each side would have been glad to defeat the other if it could do so without electing its own candidate.”

Moving on to the next section, this book spends a good bit of time on the legal accomplishments of Foltz. While she never got rich, she was well respected as a trial lawyer, competent and persuasive. Between her cases and her advocacy, she actually ended up accomplishing a great deal of good in the world - she just didn’t manage to profit from it much. Here are some examples.

We now assume the existence of an orderly system of parole. But it was not always so. Sentences for minor crimes could be decades, and the only way to get out early was a pardon, and these were given out erratically, and often to the politically connected, denying the poor and obscure equal justice.

While Foltz’s bill she presented to the legislature failed, it formed the basis of a bill that passed a couple of years later. So here in California, she can be considered one of the founders of the parole system.

Foltz and Gordon did win on the issue of allowing women to be executors of estates - a major victory in an era when a male executor could bleed an estate to the detriment of the widow.

Although she lost the court case, her advocacy in a case where an elderly person was evicted from a home for the aged resulted in major changes to the law. In fact, when I, early in my career, defended several residents of nursing homes from eviction, I was following in her footsteps - and benefiting from her legacy.

Foltz also wrote several influential law review articles. The idea of the Public Defender was the topic of a few, but she also wrote on some other interesting topics. One was entitled “Should Women Be Executed.” In this article, she took issue with some other feminist thinkers who claimed that since women couldn’t serve on juries, they shouldn’t be executed. Mind you, Foltz opposed the death penalty entirely. However, she didn’t think that women should be treated any differently. As she put it:

“The law should acknowledge no difference between the sexes as to moral perceptions, reason, passions, volition, or self control.”

This is in line with Mary Wollstonecraft’s argument that women had equal moral volition, and thus should be educated and treated equally. I agree. Perhaps one of the most frustrating experiences in my childhood was seeing females get away with atrocious behavior and yet get off with lighter punishment than a male would in the same circumstances. With equal power comes equal responsibility - and most feminists these days would agree with that.

Foltz also noted that this idea that women should get off easily (particularly in a famous case at the time) because of the discovery of adultery was actually rooted in a belief of male ownership of female bodies. In the old days, so to speak, a man was essentially entitled to kill his wife’s lover - and her too - if he caught them in adultery. Foltz objected to the idea that either sex should have the right of vigilante justice of this kind.

The book has an interesting summary and discussion of the high profile murder cases of the time that Foltz obliquely references in her article. It is interesting to see some of the dated arguments that were made. One is straight out of Rape Culture. The prosecutor made the claim in his argument that no woman could be forced into sexual intimacy she didn’t desire. (Oh wait, we still have people like that around…)

The other article which really fascinated me was one on the role of the legislature. Then as now, there was a tension between those who pushed for legislative solutions, and those who sought court relief. More or less the same way we now debate whether progress should come through court decisions or through statutory law. While reducing this to a liberal versus conservative issue is oversimplification, there is a degree to which the sides have switched in the last 100 years. The conservatives at one point wanted the law to progress through Common Law style decisions, while progressives (in the Theodore Roosevelt mold) preferred legislation. Foltz herself made a few interesting observations and suggestions in her article. First, she noted that the courts tend to take a stronger role when the legislature fails to do the right thing. Hey, in our own day, Congress has abysmal ratings. I wonder why? Might possibly have something to do with the fact that they only rarely are able to work together to write legislation that actually helps people. (It’s another discussion, but there seems to be a fundamental disagreement between the parties right now as to goals, not just means. Not how to make life better for the poor, etc., but whether we should at all.)

Foltz also had an interesting - and influential - suggestion. Since legislators often lack expertise, they need help. She suggested that legislators needed to work with experts regarding their legislation - people who actually knew the fields - scientific and so on - so that silly mistakes could be avoided. (She cited a coyote control measure which backfired - because it sounded good only to those who had no knowledge of the science involved in coyote reproduction.) To a large degree, Foltz’s vision did come to pass for a time. Much of the progress of the 20th Century owed a lot to the assistance of experts in designing legislation. And to the fact that the parties worked together enough to come up with solutions, not just ways of stopping the other. Of course, now, there is a backlash against the “elites,” and - at least in certain circles - “alternative facts” and militant ignorance is celebrated as superior to science and knowledge.

As a final note, I want to return to what is probably Foltz’s keystone accomplishment: the Public Defender.

When she started practice, it was acknowledged - to a point - that the indigent needed counsel. But rather than pay attorneys, judges would order one to represent - free of charge. It was rarely the prominent, connected ones that got the call. Rather, it was the bottom feeders - and women like Foltz, who then had to either make a poor defense (and on short notice) or devote weeks at a time to free labor. (Foltz fell into the latter category.)

Foltz’s vision was that instead, the defense would be paid and equipped the same way as the prosecution. Both sides should be equal, and a defendant - presumed innocent - should not fail to get justice simply because of his poverty.

“For every public prosecutor there should be a public defender chosen in the same way and paid out of the same fund.”

There isn’t space in this post to get into the whole vision - it is impressive and well thought out - and has only partially been realized. (Defendants still end up having to pay if they can afford it, which Foltz thought was unfair.) But it is amazing just how much did come to pass. We tend to take the right to counsel for granted, but Foltz played a key role in making that right more than an illusion, something only the wealthy could truly enjoy.

There is so much more in this book. It isn’t short, but neither is the story. Foltz lived during interesting times. Exciting, fascinating, frustrating, and never boring. We modern Americans tend to forget just how much has changed for the better in the last 200 years, but we should never forget that they didn’t just happen. People made them happen. People like Susan B. Anthony, Elizabeth Cady Stanton, and Laura Gordon. And, we should never forget, Clara Foltz. She never made her fortune, but she did, in many ways, make the fortune of millions of women who came after her, from the many outstanding lawyers and judges I work with in my practice, to my wife, who can put her leadership skills to good use at her workplace, to my daughters, who are growing up in a world where a man who would claim that females are just trained animals would rightly be laughed out of town - even in conservative circles.

I highly recommend this book - particularly for those with an interest in law, politics, or history - but really for everyone. Barbara Babcock tells a great story, the writing is compelling, and the details and research are outstanding. 


The Criminal Courts Building - aka the Clara Shortridge Foltz Courthouse. 
If it looks familiar, it should, as this is where the O.J. Simpson trial was held. 
Foltz herself tended to side with the defense, and she probably would have enjoyed the trial antics.

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