The Exemplary Ms. Margolin

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The Exemplary Ms. Margolin

Published in The Daily Record November 12, 2018

I know it can scarcely be believed now, children, but there once was a time when the federal government actively intervened to protect workers by assuring they were adequately paid. A time when our leaders cooperated in international prosecutions of war criminals, rather than shaking their hands at summit meetings. Even – contain your incredulity! – a time when the federal government aggressively protected the right of women to equal pay and equal opportunity rather than merely paying it lip service.

Possible in the Government

Involved in all of these federal initiatives was Bessie Margolin, the subject of Fair Labor Lawyer, by Baltimore lawyer and author Marlene Trestman. I have written before in this space about lawyers’ ways of living good lives. I have highlighted Hugh L. Clarke, the easy-going Tennessee lawyer who did well while doing good, and was memorialized in Sleepy John Estes’ Lawyer Clark Blues, and I have mentioned Gilbert Roe, Wall Street lawyer who improbably also put his services at the disposal of leading radical spirits of the early twentieth century, and pioneered then-innovative First Amendment thinking. Both of these gentlemen lived their admirable lives in the private sector. Margolin’s professional life, by contrast, was spent almost entirely in the service of the federal government. Now (as one who spent much of his own career litigating against government lawyers but liked most of them), I can attest that such lawyers as a breed usually find creditable ways to spend their careers, but they can do especially great things at times when the government is doing important good work. Margolin was a case in point.

As Trestman recounts, it was Margolin’s good fortune to come of professional age at the very moment the New Deal began and also at the very moment it started to be possible for women endowed with a combination of great talent and extraordinary luck to become prominent official advocates of important legislation, of which the New Deal gave birth to an abundance. And Margolin made herself a candidate for extraordinary luck by virtue of great talent, which put her in the running for roles the legal culture of the time would normally have treated as male preserves. Raised in a New Orleans orphanage, she beat enormous odds to make it to an inferior position on the staff of Yale Law School, where she became a protegee of, among others, future Supreme Court Justice William O. Douglas, earning a doctorate in law (on top of her Tulane law degree) in the process. Then it was off to Washington, 89 days after Franklin Roosevelt took office.

TVA, FLSA, Nuremberg, Equal Pay

She soon found a way into government, at the newly-formed Tennessee Valley Authority. The TVA’s authority to intervene in a marketplace to benefit consumers (by generating power and instituting flood control) was challenged on constitutional grounds by entrenched financial interests. Margolin worked with a high-powered legal team that beat back this and other challenges. Not all New Deal programs survived; Margolin was on the ground floor of one of the successes.

From there she went to the Labor Department, her home for almost all of her career. Another New Deal program was about to be tested there: the Fair Labor Standards Act of 1938, the source of the federal minimum wage, overtime protections, and prohibitions against child labor. Differently from many federal programs, Congress passed this one without giving the administering agency, the Department’s Wage and Hour Division, the authority to promulgate interpretive regulations, meaning that the law, pockmarked with general terms and exceptions to coverage, was destined to be fleshed out in the courts. Whoever was in charge of the Department’s end of that process was foreordained to become, if she was not already, an experienced litigator and appellate advocate. And that person turned out to be Margolin. She would try cases all over the country, supervise a team of lawyers who answered to her nationwide, and argue in every Circuit and before the Supreme Court (27 cases there, with a win-loss record of 24-3). Largely thanks to Margolin, the FLSA remains a key protection for our nation’s workers.

After World War II, Margolin was seconded for a few months to the Nuremberg Tribunals. She drafted the rules for American military tribunals that would govern trials of 185 defendants over two years. It was momentous work, a piece of a civilization-defining event imposing international norms even on those who had acted under sanction of the national laws.

In later years back at the Labor Department, Margolin found herself in the midst of a different civilization-defining fight: enforcing the new Equal Pay Act of 1963. This time, in addition to supervising a hundred cases, she became a leading spokesperson for the Act, making it clear that equal pay and equal opportunity were serious Labor Department priorities.

Not Having It All

Perhaps her passion on this subject (she became one of the founders of the National Organization for Women) was informed by the discrimination she had herself contended with throughout her career, most notably in her determined pursuit of a judgeship, a goal that eluded her. It is likely that her dalliances, most notably with a married boss, known to the FBI and reported in her background investigations, were held against her in a way that a man’s similar behavior would not have been. Whatever the explanation, Presidents Kennedy and Johnson passed on numerous opportunities to elevate her to the bench.

I knew one of her female colleagues mentioned and pictured in Trestman’s book: Beatrice Rosenberg, a lawyer at Justice and the EEOC, one of the few attorneys, male or female, who argued more frequently than Margolin in the Supreme Court. Rosenberg was a close friend of a dear friend of mine, an administrative law judge at a time when there were few female ALJs. The three women had much in common: they were all Jewish, preeminent in legal fields where, when they started out, few women were allowed to compete, and single. That cohort is largely forgotten now. They had close-to-unsung roles in shaping the way the government intervened on behalf of citizens. To capitalize on their limited opportunities to do this, it seems likely they sacrificed the sort of domestic lives they might have preferred.

Tellingly, Margolin was engaged twice: the first, to a fellow law student, was broken off at the threshold of her legal career, and the second, which did not result in a marriage, after her retirement. One suspects these choices were tacit acknowledgements of the difficulties a woman would have had maintaining both a career and a marriage at that time.

Worth It

That said, by Trestman’s account, Margolin had a rich personal life. She dressed sharply, she gambled, she had affairs, she richly enjoyed her time abroad, and she reveled in being a favorite aunt. Coupled with her stellar career, it was a life many lawyers would aspire to.

Details may differ, but there will always be some kind of sacrifice involved in any effort to wield our profession for the common good. If, like Bessie Margolin, one is persistent and lucky, that sacrifice may well pay off.

Copyright (c) Jack L. B. Gohn

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