SAN FRANCISCO – Judges of the United States Court of Appeals for the Ninth Circuit were saddened to learn of the passing of their former colleague, the Honorable Shirley M. Hufstedler, the first woman to serve on the nation’s largest federal appellate court.
Judge Hufstedler, 90, died early Wednesday (March 30, 2016) in a hospital near her home in the Los Angeles suburb of Flint Ridge. She had been in declining health for some time and passed with her husband, Seth, and their son, Steve, at her bedside.
"The legal profession has lost a great friend and champion," Ninth Circuit Chief Judge Sidney R. Thomas said today. "Whether she was hearing cases as a judge or arguing them as an advocate before this court, she was a model of professionalism for all of us."
Nominated by President Johnson, Judge Hufstedler came onto the Ninth Circuit bench in 1968. She was just the second woman to be appointed to a federal appellate court since the Judicial Branch was established in 1789. And, for most of her 11-year tenure on the court, she was the nation’s only female federal appellate jurist.
It was ability not gender that earned Judge Hufstedler a seat on the Ninth Circuit, said Chief Judge Emeritus J. Clifford Wallace, who was appointed by President Nixon in 1972.
"Shirley Hufstedler was the first woman judge on our court, not because she was a woman, but because she was the best and the brightest," Judge Wallace said. "Her ability to see through arguments was remarkable. Whether we agreed with her outcome, there was no question about her reasoning and its persuasiveness."
"She was the center of much attention, including a mention in the New Yorker that featured a description of the dress she was wearing. She bore the visibility that came with her station very well," said Chief Judge Emeritus Mary M. Schroeder of Phoenix.
"Shirley was brilliant, incisive, and talked a mile a minute. I will miss her," added Judge Schroeder, who was appointed by President Carter in 1979.
Judge Hufstedler served the Ninth Circuit with distinction, authoring numerous majority opinions as well as notable concurrences and dissents. Among her best-known opinions was her dissent in a 1974 case, Lau v. Nichols, in which the majority found that the San Francisco school system’s failure to provide language services for non-English speaking Chinese immigrants did not violate the Fourteenth Amendment. In her dissent, Judge Huftstedler wrote that "these children are more isolated from equal educational opportunity than were those physically segregated blacks" in Brown v. Board of Education. The U.S. Supreme Court agreed with her and voted unanimously to reverse the Ninth Circuit’s decision in 1974.
Judge Hufstedler wrote the majority opinion in a 1971 decision, Dietemann v. Time, Inc., involving Life Magazine reporters who used subterfuge to enter the office portion of a private home and, without consent, photographed and recorded the occupant in conversations with other people. In affirming the lower court, which found the reporters were liable for trespass and intentional infliction of emotional distress, Judge Hufstedler warned that the First Amendment has "never been construed to accord newsmen immunity from torts or crimes committed during the course of news gathering."
Other notable opinions included dissents in cases involving the Fourth Amendment, warrantless searches and border searches.
Ninth Circuit Chief Judge Emeritus Alfred T. Goodwin, who was appointed to the court in 1971 also by President Nixon, recalls Judge Hufstedler as friendly and generous with her time in helping him learn his new job.
"She was an expert in bringing together the views of the three-judge panel members and in the production of prompt and well-drafted opinions. In the controversial cases that were decided by an en banc court, her leadership was pronounced and valued by all the judges," Judge Goodwin recalled.
"Having a conversation with Shirley made one feel as though one had visited with Jane Austen," said Senior Circuit Judge Harry Pregerson. "Her opinions were models of clarity and the product of her kind and compassionate soul. My heart goes out to her husband and family."
In 1979, Judge Hufstedler left the bench to accept an appointment by President Carter to the newly created cabinet post of U.S. Secretary of Education. In a 2007 article she wrote for an online blog, http://ms-jd.org/, Judge Hufstedler discussed organizing the U.S.
Department of Education from scratch, noting the challenges of building a staff during a federal hiring freeze and obtaining budget approval from the president and Congress. Of that period, she concluded, "I have never regretted undertaking the tasks, but I had no desire to live within the beltway again."
While there was speculation that Judge Hufstedler would be nominated to the Supreme Court, the Iran hostage crisis intervened and President Carter was voted out of office in 1980. Judge Hufstedler left government service and returned to private life in 1981. She was a visiting professor or guest lecturer at a number of prominent law schools, including her alma mater, Stanford Law School.
Around this time, she also became more active in international affairs. She was a member of a U.S. State Department and American Bar Association delegation that negotiated agreements to exchange legal scholars and judges between the U.S. and the Soviet Union and its satellite countries. She also served as a delegate from the Lawyers Alliance for Nuclear Arms Control, involved in negotiating nuclear arms agreements with the Soviet Union for nine years.
Other international activities included serving as chair of the law faculty of the Salzburg Seminar in American Studies in Austria, and a string of guest lectures in England, France, Bulgaria, Israel, Jordan, India, Nepal, Malaysia and Sweden.
"Her dedication to public service was so great that everything she touched, she succeeded in improving," said Senior Circuit Judge Dorothy W. Nelson, who also was appointed by President Carter in 1979 and inherited Judge Hufstedler’s former chambers.
"Whether as a judge of this court or the education secretary or as a board member of various international organizations, her aim was always to bring people together. I really admired her for that," added Judge Nelson, who still has a hot plate left behind by her predecessor.
After resuming private practice in 1981, Judge Hufstedler became a partner in her husband’s law firm, Hufstedler, Miller, Carlson & Beardsley in Los Angeles, specializing in appellate matters in both state and federal courts. The firm merged in 1995 with both Hufstedlers along with several associates joining the Morrison & Foerster law firm. Judge Hufstedler went on to have a thriving practice for more than 20 years at Morrison & Foerster, which currently listed her as senior of counsel.
In addition to sitting as a judge, Judge Hufstedler has been counsel of record for 78 appeals to the Ninth Circuit since 1990. She has argued before the court on numerous occasions, including most recently a case heard in 2011 in San Francisco.
Born in Denver, Judge Hufstedler received her B.B.A. from the University of New Mexico in 1945 and her LL.B. from Stanford Law School in 1949. Despite graduating at the top of her law school class, no law firms would hire the woman lawyer. After providing research and writing briefs for other lawyers for several months, she started a one-woman practice in 1951.
Her career in public service began in 1960, when a former law professor who had left teaching added her to a team of lawyers representing California in complex multi-state litigation over Colorado River water. She was later named a special assistant to the attorney general of California, Edmund G. Brown. When Brown became governor in 1961, he appointed Judge Hufstedler to the Los Angeles County Superior Court. She was elected to the office in 1962 and served until 1966, when she was appointed an associate justice of the California Court of Appeal.
Over the span of her 65-year career, Judge Hufstedler has served on dozens of governing boards of academic institutions, professional associations and charitable organizations. She has received 19 honorary degrees and numerous awards and other recognition.
Judge Hufstedler and her husband, Seth, met in law school. Both top students and founders of the Stanford Law Review, the couple was married in 1949. Seth Hufstedler, also senior of counsel at Morrison & Foerster, is a renowned lawyer in his own right, a former president of the American Bar Association Foundation, the Los Angeles County Bar Association and the State Bar Association of California.
In addition to a son, Steve, a medical doctor, Judge Hufstedler is survived by four grandchildren.
Services are pending.