(Mildred Lillie is second from rights and Sylvia Bacon is third from left)
A leading torts casebook, Franklin, Rabin, etc., Tort Law & Alternatives, begins with a California appellate decision, Hammontree v. Jenner, 20 Cal.App.3d 528 (Ct. App. 1971). The case focuses on whether a driver who has a history of controlled epilepsy and suffers a sudden-onset epileptic seizure is subject to liability without fault or only negligence liability.[1] Professors, and no doubt students, pay little attention to the name of the judge who authored the opinion, which appears as “Lillie, J.” But in thinking about whether the identity of the judicial authors of the decisions included in the Franklin & Rabin casebook might help me give students an understanding of the diversity on the bench,[2] I decided to look into the identity of “Lillie, J.” The judge’s full name was Mildred L. Lillie. Judge Lillie’s gender is noteworthy by itself, given the limited opportunities for women in the legal profession at the time. But there’s a story beyond that. It turns out Judge Lillie could have been an Associate Justice of the U.S. Supreme Court instead of either Lewis Powell or William Rehnquist.
Lillie graduated from Boalt Hall in 1938. Her pre-judicial career included positions as a deputy city attorney in Alameda California, and an Assistant U.S. Attorney, as well as some time in private practice. Lillie was first appointed to the bench in 1947 by California’s Republican Governor, and soon to be Chief Justice of the United States, Earl Warren. In 1958, Governor Goodwin Kinght elevated her to the Second District Court of Appeal. Lille wrote the opinion in Hammontree v. Jenner in 1971 — the opinion was issued on October 14 to be exact.
Meanwhile President Richard Nixon, himself having been a California politician before becoming President, was attempting to fill two vacancies on the U.S. Supreme Court left by the retirements of Justices John Marshall Harlan II and Hugo Black. His first two nominations Clement Haynesworth and G. Harold Carswell had failed, largely because of opposition from the Democratic majority in the U.S. Senate. The President was getting pressure to appoint a woman to the Court (particularly from his wife), though privately he was reluctant to select a woman. See here and here.
Nevertheless, two women were among the six lawyers rumored to be on Nixon’s shortlist for the vacancies, Mildred Lillie and Sylvia Bacon, whose work in the U.S. Department of Justice had earned her a reputation for being tough on crime.
Nixon’s Attorney General, John Mitchell, believed Lillie a particularly good choice for one of the vacancies. She was a Democrat, and thus might be more palatable to Senate Democrats, but also conservative. Mitchell noted that California’s Democratic Governor, Pat Brown, had already rejected Lille for a seat on the California Supreme Court as too conservative. (In 1962, Nixon had lost his bid to unseat Governor Brown, one of the low points in Nixon’s career.[3])
However, Harvard Law School Professor Laurence Tribe harshly criticized Lillie’s qualifications. (In a 2009 interview recalling that time, he described Lillie as “both right wing and stupid”). Even worse for Lillie, the American Bar Association Standing Committee on the Federal Judiciary found Lillie was unqualified for the U.S. Supreme Court by an 11-1 vote. After the ABA Committee vote, Nixon had the following exchange with Attorney General John Mitchell.
RN: The woman thing, that’s got to get out [to the press] some way. I mean, naturally the [ABA] vote will get out, won’t it? Everything else has leaked out of there. Now believe me, we’re going to leak this out if they don’t.
JM: You can rest assured we’ll get it out one way or the other. And Walsh knows it’s coming. He’s been well programmed –
RN: And the eleven to one [vote]?
JM: Yes.
RN: And I think the eleven to one is brilliant, because it’s a stacked jury. All men. Huh?
JM: Absolutely.
RN: And [the committee said] she’s the best qualified woman but she’s not qualified for the Supreme Court. Jesus, that’s great.
On October 21, 1971, a week after the decision in Hammontree, Nixon nominated Lewis Powell and William Rehnquist for the Supreme Court vacancies. Both were confirmed. Lillie continued serving on the California appellate court until her death in 2002.
A book published by the NYU Press earlier this year, Hannah Brenner Jonhson & Renee Knake Jefferson, Shortlist: Women in the Shadows of the Supreme Court, discusses Judge Lillie, Sylvia Brown, and several other potential female Supreme Court nominees before the nomination of Sandra Day O’Connor.
Jefferson & Johnson: It was in the midst of our Supreme Court media study that we stumbled upon that article. We were shocked to learn that Nixon had shortlisted Sylvia Bacon, a judge from Washington, D.C., and Mildred Lillie, a judge from California, as he was faced with two vacancies on the court. We had never heard of these women and were unaware that any women had been considered for the court before O’Connor. We were shocked at the way Lillie was described by the author as having “maintained a bathing beauty figure.” It was absurd that an individual considered as a nominee for the nation’s highest court would be critiqued based on her appearance in a swimsuit. We also were struck by the author’s reference to her childless status.
Although we understood that this commentary was consistent with the pervasive sexism of that era (and the findings of our media study), we were more curious about the notion that other women had been shortlisted before O’Connor. And so began our journey through presidential papers, news accounts and private archives. We learned that indeed, nine women had been shortlisted but never selected for the Supreme Court, dating back as far as the 1930s.
— By Professor Bernard Bell, Rutgers Law School
[1] The case has civil rights implications in terms of the opportunities for the disabled to participate fully in society. I discuss using the case to have such a conversation in Bernard W. Bell, The Wide World of Torts: Reviewing Franklin & Rabin’s Tort Law and Alternatives, 20 Seattle U. L. Rev. 1, 20-22 (2001). https://digitalcommons.law.seattleu.edu/sulr/vol25/iss1/1/
[2] The judges most often featured in traditional torts casebooks, such as Holmes, Cardozo, Hand, Traynor, and Posner, tend to be white men, and students could easily assume that all the judges authoring opinions have a similar background. I have decided to look into the identity of authors of the opinions in my casebook to falsify that assumption. For some time I have known that Justice Alan Page of the Minnesota Supreme Court, and author of one of the decisions in Franklin & Rabin, is African-American and a former professional football player.
[3] In his press conference following his defeat, Nixon asserted: “as I leave you I want you to know—just think how much you’re going to be missing. You won’t have Nixon to kick around anymore, because gentlemen, this is my last press conference, . . .” (Emphasis added.)