J. Todd Foster Column: They Are Women; Let Them Roar From High Court

Women make up 51 percent of the U.S. population at 153 million strong. I’m no mathematician, but if you divide one woman justice on the U.S. Supreme Court into nine justices, you get 11 percent. Two women Supreme Court justices would be 22 percent. That’s still not good, but it’s better.

I normally advocate merit-based hirings only, but there’s a way for President Barack Obama to use merit and gender equality to find a successor to retiring Supreme Court Justice David Souter and give Justice Ruth Bader Ginsberg a female peer.

I’m even going to nominate the perfect female jurist for Obama and waive the usual finder’s fee I charge presidents when they consult me for judicial selections.

Susan Graber.

First a disclosure: I know Graber slightly because my wife, Melinda, was her law clerk from 1996-98 on the Oregon Supreme Court and then the U.S. Court of Appeals for the Ninth Circuit – one judicial step below the U.S. Supreme Court.

What does it take to become a law clerk at that level? It helps to finish No. 1 in a class of more than 150 at a law school. The three years I spent as a bachelor while my wife completed her Juris Doctorate degree at Gonzaga University School of Law were made worth it when Graber hired my wife.

Rather than extol Graber’s judicial virtues, I’ll let legal scholars and other judges do it in the space below. What I will tell you about Graber, 59, is that she is one of the smartest people I’ve ever met. Later I learned she graduated high school at age 15, Wellesley College at 19 and Yale University’s School of Law at 22.

“Perhaps what is most impressive about Judge Susan Graber, however, is the modesty she exudes in light of her talents and meteoric career trajectory,” according to the March/April 2006 issue of The Federal Lawyer magazine. “As Hon. Barry Silverman, her fellow judge for the Ninth Circuit, explains, Graber is ‘brilliant – but she doesn’t wear it on her sleeve. As bright as she is, she does not put on airs or use her amazing intellect to try to dominate.’ ”

In addition to her mind, Graber has the kind of tragic life experiences that would benefit anyone wearing a judge’s robe. Her father was carjacked and murdered in 1974 in Cincinnati.

President Bill Clinton appointed Graber to the Ninth Circuit bench in 1998 after she spent eight years on the Oregon Supreme Court and two years on the Oregon Court of Appeals.

“I have never personally known or been associated in practice with anyone who could see legal issues as quickly, or write as succinctly and clearly as Judge Graber,” Sidney Lezak, Oregon’s U.S. attorney from 1961 through 1982, told The Federal Lawyer. “She was a natural right from her first year of law school.”

I met Graber in 1996 and – after being exposed to her towering though modest intellect – was convinced that she one day would sit on the U.S. Supreme Court. That day should be now: She’s perfect for Obama because she is moderate to right of center and doesn’t legislate from the bench. Graber is so appealing to politicians of all stripes that the Senate confirmed her to the federal bench by a 98-0 vote.

Former federal prosecutor and now blogger David Lat wrote of Graber in 2006: “While warm and friendly, Judge Graber doesn’t qualify as a colorful character. … Instead, she exudes a restrained, matronly dignity, perhaps cultivated during her long years on the Oregon Supreme Court.”

Lat, a former law clerk to another Ninth Circuit judge, wrote: “Based on what we observed, [Graber] didn’t seem to care about serving any particular ideology, conservative or liberal. Nor did she seem to care about what people thought of her, or what the media wrote about her. She just ‘did her thing,’ calling each case as she saw it, typically with moderate results.”

A 1999 Law.com article said Graber is “routinely described as a dispassionate jurist who does not attempt to do ‘social justice’ from the bench.” The article quoted Lezak as saying: “I think the left-wingers are angry with her because they had hoped she was one of them.”

Oregon Supreme Court Chief Justice Edwin Peterson told The Federal Lawyer: “Judge Graber is unfailingly fair and objective. ... She would be an excellent Supreme Court justice.”
Before the Senate’s unanimous vote to confirm her, U.S. Sen. Ron Wyden, D-Ore., told his colleagues: “She knows the role of a judge is to follow, not make the law, and that is exactly what we need on the federal appellate bench.”

Here are some other interesting facts about Graber. She went to Wellesley and Yale with Hillary Clinton, whom she counted as a friend, and also was a friend of Yale classmate Henry “The Fonz” Winkler
. If you’re still not convinced Graber is a great prospect, consider this: The words “prolific” and “workhorse” often are used to describe her. She’s also family oriented, bakes bread with her teenage daughter, reads mystery novels and is an expert at such word games as Scrabble and Boggle.
A Boggle champion and FOF (Friend of the Fonz) on the Supreme Court would be pretty cool. So would being able to say my wife used to be the law clerk of Supreme Court Justice Susan Graber.

J. Todd Foster is managing editor of the Bristol Herald Courier and once defeated pro se a State Farm lawyer in small claims court over an accident claim. He retired 1-0 from the practice of law and can be reached at or (276) 645-2513.