Boston, MA. Beacon Press. 264 pages. $26.95 (hardcover).
Posted: February 16, 2012 at 9:02 p.m.
Review by: Amy Chmielewski
Harvard Law School
Class of 2013
In August of 2010, several months before In Defense of Women was released, a Boston Globe writer questioned the book’s propriety. Calling its title “very unjudicial,” he wondered: can a clear line be drawn between past and present? When a judge reflects upon her career as a civil-rights and criminal-defense attorney, does she undermine her obligation to refrain from commenting on matters that may come before her?
But reading Judge Gertner’s memoirs may prompt readers to ask another question in response: what is lost when judges’ voices are confined to the courtroom—when the legal profession abides by the fiction that judges, once appointed, can and should easily efface their past experiences, their personalities, preferences, and politics? Surely we are more honest when we acknowledge that judges come to the bench not as blank slates, but as palimpsests. Surely the profession is made richer by accounts like Judge Gertner’s that force us to face the complexities of human nature that law and legal ethics sometimes instruct us to ignore.
- The Advocate and the Jurist
Nearly all of the 260-odd pages of In Defense of Women focus on the author’s experiences as an advocate, especially during the early years of her career. But, in a sense, Judge Gertner is as much a part of the narrative as Advocate Gertner. The book’s preface begins with an anecdote: in the late 1990s, both the author and Sonia Sotomayor—then sitting on the Second Circuit—were invited to give advice to a group of aspiring judges at Yale Law School. Justice Sotomayor counseled the students to be outstanding performers in school and in the profession, but moreover, she warned them to tread carefully, to have “clear principles” but avoid becoming associated with “controversial causes.” Then Judge Gertner outlined her own path to the bench, the highlights of her professional and personal life: begin by defending a “lesbian, feminist, radical anti-Vietnam War activist accused of killing a police officer” in a hugely high-profile case, then “take every abortion case in the Commonwealth of Massachusetts,” and just in case you haven’t made your political bent clear enough, marry the legal director of the ACLU’s Massachusetts chapter.
As her memoir illustrates, Judge Gertner applied for a seat on the federal bench not in spite of her controversial background, but because of it. In a meeting with Senator Edward Kennedy that may have won her the Senator’s support, she asked him point-blank to recommend a civil-rights lawyer to the judiciary. Doing so would not only signal the Senator’s support for civil rights, it would “validate the career path” for aspiring civil-rights lawyers. A risky strategy, of course, but it worked.
In Defense of Women ends with a brief account of the author’s confirmation process. Unsurprisingly, it was bumpy and uncertain—though not for the reasons a reader might expect. While Judge Gertner refrains from commenting directly on the politics of the confirmation process in the abstract, this section of the book invites readers to consider the state of judicial nominations today. It is difficult to imagine Gertner’s nomination surviving the current Senate, where the confirmation of so-called “activist” judges are routinely stalled or blocked altogether. As a result, 90 of 858 judgeships on the appellate and district courts were vacant as of January 2011. Many would-be appointees accused of “activism” have had careers that look downright tame compared to Gertner’s (take, for example, Caitlin Halligan, whose appointment to the D.C. Circuit has been stymied in part because as Solicitor General for the state of New York she signed her name to briefs arguing that gun manufacturers should not be shielded from tort liability).
What does it mean when an “unrepentant advocate,” or even a dedicated public servant, is unable to ascend to the federal bench, despite being eminently qualified for the job? Gertner’s career illustrates what we are in danger of losing. Perhaps her career sends a hopeful message as well—an assurance that, indeed, it is possible for our representatives to abandon political deadlock and help build a judiciary that better reflects the breadth and richness of the legal profession.
- Lessons for Young Lawyers and Law Students
While In Defense of Women is the kind of book capable of attracting a wide audience, it often seems to speak in particular to new or aspiring lawyers and law students. When the first chapter opens, the narrator is young, just a few years out of school. She lives in a Cambridge one-bedroom, drives a beat-up car, and has only recently come to accept the fact that sometimes her job requires her to put on a dreaded suit. Her idealism has managed to survive three years of law school, and then leads her to make the sorts of keen but risky choices that would come to define her career. Nancy Gertner is barely thirty years old, and has almost no trial experience, when she takes the lead to defend Susan Saxe, accused of the felony-murder of a Boston police officer killed during a bank robbery conceived as an anti-Vietnam protest. The trial results in a hung jury—in many senses an unlikely victory—although Saxe pleads guilty rather than face the chance of conviction following a second trial.
Enthralled by this early coup, the reader is pulled into a coming-of-age story. We discover how much the young Gertner still has to learn. Readers follow the author as she learns to command a courtroom, to reconcile her interests with those of her clients, and to reap the benefits of her “outsider” status (the author reflects, “I was in a position to make choices that others would not.”). Readers also witness Gertner’s journey through young- and middle-adulthood. Gertner falls in love with and then marries a colleague; she raises two children; she outgrows the firm that launched her career. Young lawyers who fear moments of transition in their careers, or who doubt that they can raise a family while engaging in meaningful work, should find the memoir reassuring.
Just as I query whether Nancy Gertner could be confirmed to the federal bench in our current political environment, I also wonder whether a newly minted lawyer today would be able to forge a career path similar to Gertner’s. A voice—perhaps a cynical voice—within me says ‘no,’ pointing to the differences between the legal landscape today and that of the 1970s, before large firms became huge firms, and when the high costs of litigation were not yet astronomical. It’s also hard to ignore the confluence of happy fortuities that allowed Nancy Gertner to become the lawyer she is. For example, were it not for Susan Saxes’s idiosyncrasies, which led her to seek out a young woman lawyer instead of a seasoned man with dozens of acquittals under his belt, Gertner would not have had such a spectacular opportunity so early in her career. But of course, once Gertner had the Saxe case, it was clearly a combination of wit, talent and extreme dedication, much more than luck, that propelled her to success.
As In Defense of Women reminds us, judges are lawyers. Speaking as both lawyer and judge, Nancy Gertner counsels young and aspiring members of the legal profession to take control of their careers, rather than surrender control to colleagues, superiors, or clients; to take intelligent risks; and to understand lawyering as an ethical endeavor.
She also prompts us to consider what we want and expect from our federal judiciary. As the author explains, she never intended to end up on the bench; in fact, in the early years of her career, she longed to be a law professor. With academia in mind, Gertner was free to support controversial causes and argue for novel interpretations of the law. Today’s future judges, it seems, cannot do the same. They are surely wiser to follow Justice Sotomayor’s advice and lie low. And sadly, in so doing, they may find that they cannot be the kinds of lawyers they want to be.
 Jonathan Saltzman, Judge’s book raises some eyebrows; Gertner memoirs focus on her decades as advocate for women, Boston Globe, Aug. 19, 2010, at B1.
 Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate ix (2011).
 Id. at x.
 Id. at xiii.
 See id. at 243–45.
 Carl Tobias, Where are all the federal judges? Why 90 empty seats threaten American justice, The Christian Science Monitor, Jan. 5, 2011, http://www.csmonitor.com/Commentary/Opinion/2011/0105/Where-are-all-the-federal-judges-Why-90-empty-seats-threaten-American-justice. See also Carol J. Williams, Federal logjam leaving judges’ seats empty in federal courts, L.A. Times, Aug. 30, 2010, http://articles.latimes.com/2010/aug/30/nation/la-na-judicial-logjam-20100831.
 See Charlie Savage & Raymond Hernandez, Filibuster by Senate Republicans Blocks Confirmation of Judicial Nominee, N.Y. Times, Dec. 6, 2011, http://www.nytimes.com/2011/12/07/us/senate-gop-blocks-confirmation-of-caitlin-halligan-as-judge.html; Brief of the New York State Attorney General as Amicus Curiae Supporting the City of New York’s Cross-Appeal and Reversal of the Portion of the District Court's Decision Addressing the Constitutionality of the CAA, City of New York v. Beretta, 524 F.3d 384 (2008) (Nos. 05-6942-cv, 05-6964-cv, 05-6711-cv, 05-6673-cv), 2006 WL 5582282. See also People ex rel. Spitzer v. Sturm, Ruger & Co., 309 A.D. 2d 91 (N.Y. App. Div. 2003).
 Gertner, supra note 4, at 1, 35.
 Id. at 47–49.
 Id. at 59.
 Id. at 16–18.
 Id. at 7.
 Id. at ix.