THE SENATOR leans across the rostrum, looking down at the witness.
She wants his vote. Her nomination as first-ever secretary of education was astonishing. If Carter loses on election day, she's out of a job, one year and five days after he named her. It is hard to know why she wants it, but she does.
There is an SRO crowd in the Senate hearing room.
The senators are delighted. Their cheeks glow ruddily in the television camera lights.
The small, queenly woman is smarter than almost everybody she talks to. She is the senior woman judge in the land -- 10 years on the U.S. Court of Appeals, one tantalizing rung below the Supreme Court. That makes her the foremost -- or at least the most logical -- candidate to be first woman on the Supreme Court.A strong civil libertarian, she is the icon of 18 cloistered years as a judge. She started in 1961 on the Los Angeles County Superior Court, and moved up. Always up. She's been a judge for nearly a generation. Her face appears with the likes of Amelia Earhart on the feminist version of baseball cards.
She has given it all up to come here from sunny Los Angeles, from serious work, on life-and-death issues with immediate impact on real people -- she's given that up to come and sit here, with platoons of paparazzi, cabals of laser-eyed, peach-fuzzy Senate staffers, old ladies leafletting the peanut gallery for arcane campaigns of their own (was it vegetarianism in the school breakfast programs?), and the senators themselves, with their statuesque pompadours, their stately eyebrows and the pancake Man-Tan tones.
Shirley Mount Hufstedler, 54, 5 feet 2, in her high-necked, long-sleeved, black, jurisprudent dress, has arrived in Baghdad-on-the-Potomac.
What, says the senator, the ranking Republican, precisely what, Madam, has the Carter administration done about the proverbial fat in the new department, the burgeoning bureaucracies of Democrats? What, Madam, do you intend to do to reduce the budget? The staff? They must be cut!
The SRO crowd waits. The rhythm of her oratorical cadences rises, then ebbs. You can tell she's winding up. Flashbulbs start popping. Cameras and auto-winders whir like 17-year locusts.
"And nothing," she concludes, "gives me greater pleasure than snipping away red tape. And some of that tape is bound by the Congress itself!"
The SRO crowd gasps. Oooo, with one voice.
Oooo, indeed. Hey, it's not Samson and Delilah. It's not even the fatal humiliation of the Repbulican Party. Rather, in this town of presidential hair-parts, honorable gentlemen and esteemed opponents, she has struck a fugitive, truculent chord.
This woman, you're thinking, is no pro. Shirley Mount Hufstedler, who might well be the cleverest woman in the land, may really be Rip Van Winkle. There are ropes she is too clean to know.
But the hearings aren't over. Sen. Harrison Williams (D-N.J.) asks her THE question.
Or tries to. The chairman does not want to offend his witness, he says.
His question is long. ". . . press speculation . . . perhaps . . . likelihood of a possibility . . . first woman nominated to the Supreme Court . . . personal plans after confirmation . . . broad outline . . . personal terms?"
Her answer takes 30 lines in the official transcript.
She answers precisely and only the question she is asked. Something about how she was sitting on a glacier on vacation in the Himalayas a mere eight weeks ago and can't predict the future.
He asked for personal circumstances. Broad outlines. He got'em.
"The speculation will continue," said, Williams.
The SRO crowd rocks with laughter. Assiduously, the boofo "laughter" is noted in the transcript.
The starry-eyed young feminist is crouched behind Sen. Jacob Javits' (R-N.Y.) chair on the rostrum. She turns to a friend and whispers, "I just love the way she walked away from that question."
This woman, you're thinking, is a real pro.
The speculation began in 1968, when LBJ elevated Shirley Mount Hufstedler from California state appeals court to the Ninth Circuit Court of Appeals. Constitutional law professors recently added their well-modulated two cents' worth. They voted Hufstedler their first choice, in a new National Law Journal survey, to fill the next associate justice vacancy on the Supreme Court. By now the speculation -- and her caution -- are deafening, perhaps even to Hufstedler herself.
So she and her husband, Seth M. Hufstedler, a prominent Los Angeles attorney, go backpacking, on Mount Everest, for fun. Two hundred fifty miles or so. Once he did it with a sprained ankle. Once she did it fresh out of a broken-leg cast she'd worn for six months.
Up there, the air is so thin there's no pressure. You can get nosebleeds. You can get high. Alone, with their Sherpa guides, Mr. Hufstedler photographs Judge Hufstedler, looking down, pensively, from the roof of the world.
Down here in Washington, NASA won't budge from the office building she needs. HEW doesn't want to give her all the staff her department is entitled to. Light blubs, desks and parking places must be scrounged.
Words are her chosen weapon. Looking at her words on paper conveys the weighty bronze sword she can wield, what she's called her "lawyer-like caution" and the occupational hazard of black-robed arbiters-pontifical, meticulous rectitude.
On her feet, speaking ad lib, the stance she takes is unassailable -- feet apart, hands behind back. Add to that the livelier impression that she is the sweet-talking, Chautauqua-circuit suffragist.
But the tangible charm is not in her quotes, rather in the way she gets flustered and turns pink when something nice happens to her.
At the Senate hearing, during a break, her husband is at her side instantly. He sits down, sprawls like a boy on his elbow at the portentous table where she has been sitting alone, erect, hands clasped, and he says something about her testimony, and she smiles, a perfect semicircle, so different from the ones she's been giving the senators that you know these two are sweethearts, and her cheecks round out like love apples.
At the White House during the swearing-in, she's in her neat black velvet suit, repeating after the chief justice, smiling just like that, turning pink, fumbling a word.
There's a girlish vulnerability about her, an eagerness to learn -- that sort of west-of-the-Hudson ingenuousness that makes Chicagoans apologize for eating no clams. Hufstedler, with her new Duchess of Windsor-esque chignon, apologizes for nothing. Nor does she have to, because that elusive girlishness seems to turn strong men into protectors.
One tough old bird of an appeals court colleague rates her work as "brilliant, decent, admirable, courageous," but is still talking about the time she cooked him dinner all by herself, and how she is the only woman he knows, of her age and accomplishments, who does not look like one of our more, uh, robust, female politicians.
An education expert, skeptical of Hufstedler's expertise, even of the need for a department of education, returned unconvinced from a get-acquainted lunch with Madam Secretary. Except for one thing. "You know how she makes me feel?" he said, eyes wide. "I feel like I want to help her."
At 19, fresh out of the University of New Mexico -- "strikingly beautiful," says son Steve -- she went to Hollywood. She got a job, cold, as a secretary to actor Burgess Meredith (and his then-wife, Paulette Goddard). Well, it wasn't exactly cold. Her father was a friend of Ernie Pyle's and Meredith played the G.I. Joe role he'd written. That, teaching business school and piano helped earn the money for law school.
"She was very popular in law school," says Deputy Secretary of State Warren M. Christopher, a classmate. "One of the reasons was, she took shorthand superbly. If you missed a class, you always debated over whether you'd get the notes from Seth -- run through that brilliant mind once -- or from Shirley."
Composure, the formidable competence -- and yet. Yet, there is this puckered, piqued, anxious forehead when she thinks you're skeptical, perhaps not paying attention. A look of frustrated communion flickered across her face in the Senate when four senators, each absent during the others' remarks, told her not to forget the school libraries. It was no different when a little girl in the day-care center she visited at Dunbar High School started whacking a playmate instead of answering Hufstedler's question about what color the child's barrette was. Senator or toddler, she seems puzzled when they don't plug in.
She is a child, in Dillon, Mont. She is in a new school -- she went to 12, between second and seventh grade. Her contractor father, Earl Stanley Mount, moved all over the Dust Bowl-era West, bidding on public works projects. People in the little towns entertained by inviting you over to Sunday dinner. During the Depression, there were no fine Sunday dinners and people were ashamed.
Between 12 new schools, somewhere the learning of fractions had fallen through the cracks. The child approaches the blackboard in Dillion, Mont. "with a terror approaching rigidity." She fails to solve the problem. The teacher ridicules her. More than 40 years later, the woman cannot do fractions.
The secretary of education is dressing for a Washington dinner party. The dress is long-sleeved, high-necked and black. But wait. It has romantic white flowers at the hem and sleeves. And black chiffon, over a modest decolletee, is classic dinner-a-deux stuff. You could almost say it was flirtatious. If she weren't a judge, you would.
"My roots," she says, "are in the 19th century." She is explaining why it is impossible for her to use or know about an old-boy network. There isn't one in the West. The idea that she and her friends are it, the first, she brushes off. Flatly.
Her roots, she is talking about now, and about both her grandmothers, and her mother -- a schoolteacher, Eva von Behren Mount -- all were "very tough pioneer ladies." Hufstedler is very proud of that. Spells her mother's maiden name when she mentions it. And, she says, moving around as a child, "The inability to easily fit into whatever the structures was -- well, the fact of moving gives a very different view of what the world is about."
On the coffee table in her apartment there is a large book of colored photographs called "Above Washington." It's a new book of aerial shots of the Capitol, the Potomac in the setting sun -- the town viewed from the solitary perspective of a light plane. Or, if you wanted to play with words, from a higher bench.
Jaded Washington wonder, perhaps, why anybody would want to be secretary of education . . .
"I do!" she cries.
. . . instead of having a real job in southern California, on the U.S. Court of Appeals?
"It just isn't true," she says. "It's an enormous opportunity to learn all kinds of structures I don't know anything about, an opportunity to learn and grow. On the bench, there is a sense of repetition . . ."
Were you bored?
"You do, from time to time, sense . . ." and here she speaks of how stimulating the issues, how fine her colleagues, how there is this sense of repetition . . .
Just then her husband phones from his law offices in Los Angeles. Seth M. Hufstedler, who struck terror into the hearts of mediocre California Supreme Court judges as prosecutor for the Commission on Judicial Performance (televised). Seth Hufstedler, superstar, World War II cryptoanalyst, triple-threat law student, Stanford '49 (first in class, law review, moot court), demon punster. "A nonstop genius," she calls him. "One of California's half-a-dozen best lawyers," says classmate Fred Dutton, Washington counsel to the Saudia Arabian embassy.
On the phone in her apartment, over the long-distance line, her honor calls the bearded avenger simply "Angel."
The whole scene comes back to you: the way his chest swelled, the way he tucked his chin to maintain composure as his eyes gleamed with affection in the White House East Room, holding the Bibles (they'd brought one, Chief Justice Warren Burger lent them the 1787 Supreme Court Bible) as she repeated the oath.
"They really like each other," says their only child, Steve. He is a piercing-eyed, bearded young man of 26, a medical student at the University of Southern California at Irvine. He says until the White House swearing-in, he hadn't worn a coat and tie in five years.
"They really like each other," he is saying. "It's like that day you grow up and find out your parents were wrong. My problem is, I grew up and found out everything was right."
Young Hufstedler shuns the white coat on his hospital rounds because, he says, it makes patients with God complexs about doctors nervous. He talks thoughtfully about his parents' feminist marriage. "Would I design a relationship for myself like that? Yes, I would," he says.
Seth and Shirley hold hands. They disagree about capital punishment (he i pro, she is con). He open doors. She cooks marvelously, says Steve. ("All children think that about their mothers," says he). They learn the languages of the countries they visit.
One effect on young Hufstedler's growing up was that he "expects people to be talented." He was shocked, he says, to find out that people "don't act with sense, and don't act with intelligence, and don't act with compassion. Now it's just dismay, not shock."
Later he is asked if the Hufstedler standards make him judge people harshly.
"Only idiots," he says. Then the young man remembers to grin.
An aside about the old boy network: The Stanford law school class of 1949, from which Shirley Mount graduated 10th, is known in California as "The Wonder Class." Many were veterans on the G.I. Bill, and they did not mess around. They still don't.
Warren M. Christopher, law review editor, went on to become California Gov. Edmund G. (Pat) Brown's aide, and is now the gimlet-eyed No. 2 man at the State Department. Fred Dutton, a poker-playing rogue then as now, was also an aide to Brown, was JFK's Capitol Hill connection in the State Department, a Bobby Kennedy insider. Ben Priest went on to become the equal among equal partners at Los Angeles' heavy-duty law firm, O'Melveny and Myers. Seth Hufstedler became a partner in Beardsley, Hufstedler. Beardsley was a friend of Earl Warren's . . .
The old-boy network denies there is one, or that Shirley Mount Hufstedler would use it to run for the Supreme Court. "She just isn't that calculating," says Dutton. It says things about how presidents keep their options open. How gruesome a roulette game it would be, how miserable a life one would lead doing it. And how it just happened that Shirley Mount Hufstedler was there, a woman in the right place at the right time.
A former high Justice Department official says Griffin Bell, former attorney general and Carter confidant, would oppose the nomination of Shirley Hufstedler to the Supreme Court.
"Bell really dislikes her," says the former official. "He's openly said he doesn't think much of her. I think what she's doing is trying to get a direct line to the president and neutralize Bell. Why else give up a lifetime job for a job in which she draws nothing but fire?"
Says Hufstedler, "Grif and I have always had very cordial relations. I don't know if my views are too liberal for him. Perhaps they are. It would be foolish -- I would be foolish -- to say that I have not thought of the Supreme Court.
"I did not make the decision to come to Washington on the basis to appeal to Mr. Carter. I am who I am. No appeal will change that. If I were going to be quote, safe, unquote, I would have stayed where I was.
"It was a hard decision for me to leave my husband [In Los Angeles. They'll commute.]. I contemplated with complete seriousness and detachment the fact that I might be a private citizen by Jan. 20, 1981, and that I may never be on a court, sit on a bench, again. What will I do then? There's always another mountain. There's always another peak. There's always another valley to get through."
Reached by telephone in Atlanta, Bell was asked to comment on "Shirley Hufstedler."
He replied through his secretary. "He said he didn't want to talk to you. Why? I didn't ask him why. He just said he didn't want to comment on that." She hung up.
Justice Warren J. Brennan Jr., who reportedly was considering retirement this spring, has now appointed law clerks for the '80-'81 term. The Supreme Court spokesman said, "There is no vacancy. The justice is fully at work here at the court, and has never made an announcement that he will retire."
Ask prominent women lawyers if it is possible, first of all, to run for the Supreme Court. The benighted yahoo naivete of that question will stun them. s
There is a formula. Young gentlewomen of the bar, take note:
Publish in law reviews, publish on op-ed pages, publish. Write separate concurrences with, and dissents from, the other judges on your appeals court panel -- these bear your byline. Speak everywhere -- at judicial conferences, bar association meetings, meetings of university trustees, at Aspen. Get active in non-law colloquys (the Colonial Williamsburg Foundation is nice. Supreme Court Justice Lewis F. Powell Jr. is on the board) and active in bar association task forces (since the bar is self-regulating, this may serve a serious purpose). Trim -- that is, moderate -- your opinions. Get a national forum.
The women did not mention sending copies of you bylined opinions to the Justice Department or accepting "Woman of the Year" awards from The Los Angeles Times, and similar citations from at least one national women's magazine.
Shirley MOUNT hufstedler is so respected by her Ninth Circuit colleagues that one -- Judge Theodore Goodwin, who calls himself "Archie Bunker" -- has said he'll miss her because she gave him his toughest arguments. Adored by her clerks ("She doesn't tell war stories" and takes them to lunch on Saturdays), enshrind forever in law textbooks (DuBay v. Williams) -- Hufstedler has done each and every one of the above. (Except, perhaps, to moderate her opinions. But lawyers will argue that forever.
"Fresh outlook" is a term that occurs five times during the White House press conference announcing Hufstedler's appointment Oct. 30. (There are 18 references to "Supreme Court," "vacancies" and so forth, but you know how perverse reporters are.)
"Fresh outlook" is a term coined by President Carter. It certainly cannot mean that Shirley Hufstedler has no experience of education -- she has one, after all -- or of the administration of a $14.2-billion budget, 154-department, 17,000-employe bureaucracy.
It must therefore mean that she is Ms. Clean. More especially, that she is not a creature of the "interest groups" -- 150 at last count, ranging from the music teachers' union to the state of Illinois. Immediately after her swearing-in, these -- calling themselves the Ad Hoc Committee for a Cabient Department of Education -- threw a party on the Hill for her.
Most especially, a "fresh outlook" means she is not the candidate of the National Education Association (NEA) -- membership 1.8 million, which has lobbied for a separate education department for years. The NEA gave its first presidential endorsement ever in 1976, when Walter Mondale promised them, at an NEA annual meeting, that the Carter administration would form an education department. At the 1976 Democratic National Convention, more delegates -- 180 -- belonged to the NEA than any other group of any kind. They've endorsed Carter for 1980, and were a major force in getting delegates to the Iowa caucuses. The Carter-Mondale campaign paid Hufstedler's expenses on a trip to Iowa, where she appeared with Rosalynn at an ERA fund-raiser, and met the next morning with a bipartisan group of educators.
Is the department, then, a creature of the NEA?
"That's true," says NEA executive director Terry Herndon. "There'd be no department without the NEA."
If Hufstedler herself is not the creature of the NEA, she has still responded once to the campaign needs of her patron. She does not appear comfortable about her trip to Iowa, about being part of the Carter campaign petticoat brigade. "I'm not trying to play cat and mouse," she says finally. "But I simply could not go out and campaign [directly] because I'm not good at it. And it's not good for the president to be seen embroiling the department in partisan politics."
She talks about how a reputation is built on "honoring commitments," "being supportive," "taking defeats with grace" and "hard work." She is disarming. So the question becomes gallant, Byzantine: Isn't there maybe a likelihood of a possibility of a speculation, since she's done everything and more on the women lawyers' program, which is really quite theoretical and off-the-wall -- you have this friend, see, who's a cynic, who might say that Shirley Hufstedler is just a bit of a sharpie?
"It isn't like that at all," she says. "I wanted to achieve. I never wanted to do a bum job." She talks about ethics, sincertiy, respect for others, unselfish devotion. "It isn't only little children who can spot a phony," she says.
Isn't that a little corny?
"Love and trust and keeping promises and such may sound like plain corn," she says. "But I believe it."
She checks the two typed, single-spaced index cards of today's schedule. Destination: a photogenic walk-through tour of Washington's wall-to-wall-carpeted, showcase high school, Dunbar.
Even from the limousine of the secretary of the Department of Education, too many parts of Washington look grim. Bleka, gray underpasses. The playgrounds look like high-altitude deserts -- dusty, defoliated.A crumpled newspaper page eddies in the icy wind. It looks like a demilitarized zone, this scenery flashing by behind the profile of Shirley Mount Hufstedler.
She is talking now about working at the dime store in Albuquerque at 14. About being "duty-struck." About her mother. "A very determined woman," she says. "Her mother was blind. Her father deserted her at age 6." Pioneer ladies.
The icy wind blows into the limousine off the grim street. A wisp of hair is tickling the cheek of Shirley Mount Hufstedler, creeping toward the corner of her mouth. She keeps batting it, talking about Eva von Behren Mount, looking straight ahead. You can't help it. You put out your hand. You brush back, and tuck behind the ear, a wisp of the hair of the cleverest woman in the land.
"I didn't do it by design." she is saying. "I did it by instinct."