ABA Senior Lawyers Division

Women Trailblazers in the Law

ORAL HISTORY

of

LOIS SCHIFFER

Interviewer: Katherine J. Henry

Dates of Interviews:

April 13, 2006 October 12, 2006 October 19, 2006 February 29, 2008 November 13, 2008 January 11, 2010 January 11, 2011

Ms. Henry:

Ms. Schiffer:

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ORAL HISTORY OF LOIS SCHIFFER

CONTINUATION OF INTERVIEW

February 29, 2008

My name is Katherine Henry. I'm here with Lois Schiffer for her fourth

interview in our series of interviews about her life and her life in the law.

Lois, when we last spoke, we had just finished up your experience at the

Department of Justice, Land and Natural Resources Division, and we were

going to turn to your experience as General Counsel and Corporate

Secretary of NPR which began in July of 1984 and I guess my first

question is how did you get that particular position and what drew you to

that area?

I had been at the Justice Department a little over six years and was

beginning to think I wanted to do something different when a friend of

mine had a call from Nina Totenberg who was helping NPR recruit a new

general counsel. NPR had had some difficult financial times and as a

result of that had gotten a new president and was in the process of

revamping some of its management. My friend called me and said she'd

had this call from Nina and I thought it would certainly be worth talking to

them. I was a big listener [to NPR programs]. I had listened to National

Public Radio for many years and had woken up to Morning Edition for

many years. And it was certainly going to include some areas of the law I

knew something about and a number of areas of the law that I didn't know

so much about, but I thought it would be interesting to learn. That was the

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connection that began the process. My thinking was that I was ready for a

change. I was interested in doing something as an alternative to litigation,

and this seemed like a worthwhile opportunity. I had done a little bit of

exploring working for a law firm a few years earlier and it hadn't seemed

like such a good time to do that and so I was pleased to have this

opportunity.

Ms. Henry: Now were you competing for the position with other individuals? Or do

you know? Or were you brought in and selected for the position?

Ms. Schiffer: As far as I know, I was competing, that is, there had been a public

announcement about the job and I assume that they interviewed other

people but at this remove, I don't actually remember the details.

Ms. Henry:

And do you know if there had been a woman general counsel there prior to

your tenure?

Ms. Schiffer: As far as I know, I was the first woman general counsel. I certainly know

that my immediate predecessor was a man, but I'm not so clear in my

mind now about what the history was. I don't think they had had a woman

general counsel before.

Ms. Henry: And what do you recall about the interviewing process? Who you spoke

with. Anything in particular that stands out in your mind from that

process.

Ms. Schiffer: Not really, the president was named Douglas Bennett. He later went on to

become an Assistant Secretary of State and then Doug Bennett was for a

while president of Wesleyan College. I have some recollection that I

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Ms. Henry:

Ms. Schiffer

Ms. Henry:

Ms. Schiffer:

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Ms. Henry:

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interviewed with him. I'm sure I interviewed with other people as well,

but I just don't remember very closely.

At the time, were there other women general counsel in other either not

profits or for profits that you knew?

NPR did work with both PBS, which was public television — it was a

separate organization from NPR for public television what NPR was for

public radio - - and also there was an organization called the Corporation

for Public Broadcasting, through which Congress channeled or funneled

its money for public broadcasting. There was a lot of First Amendment

concern that there not be Congressional interference with these

broadcasting entities or with entities that did programming and so there

was a complicated structure set up to help address that concern. And my

memory is that the General Counsel of the Corporation for Public

Broadcasting was a woman and I don't actually remember who the

General Counsel of PBS was when I got to NPR but there came a time

when PBS also had a general counsel who was a woman.

Was your gender at all an issue in the selection process that you recall?

Not that I'm aware of.

You know, either way, pro or con.

Not that I'm aware of. I don't recall it as one of the affirmative action

jobs that I had, whereas I certainly do recall that for the first time I went to

the Justice Department. And so I don't recall at all that it was an issue.

Now, you were General Counsel. Did you have a staff?

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Ms. Schiffer:

Ms. Henry:

Ms. Schiffer:

Ms. Henry:

Ms. Schiffer:

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I had a staff of three or four lawyers. It was quite a small staff.

Hm-hmmm. And was your staff male, female, mixed?

It was mixed. I remember, because it was mostly women, affirmatively

trying to be sure we hired a man for one of the positions.

And you were there for five years. Can you tell me a little bit about the

job when you started and talk through how maybe it changed during the

five year period you were there?

14 was a very wide-ranging job as General Counsel I was responsible for a

whole range of issues including ones that related to programming, and a

lot of contracting issues. We operated a satellite and we leased some

space on the satellite so there were a set of issues that related to that. We

had copyright questions. There's a statute that helps with the copyright

issues for broadcasting entities like ours and we had issues before them.

NPR acted as a representative for its member stations before the Federal

Communications Commission on issues of concern to public broadcasting

and so we did some comments on FCC matters. So it was quite a wide

range of issues and also, as the Corporate Secretary, I had some

responsibility for being sure that we were complying with non-profit

corporation law, that we were complying with the federal non-profit

corporation law, so it was quite a gamut of issues. And I think that that set

of issues stayed pretty stable. We also of course had personnel issues and

what was new to me and quite interesting was that NPR had several

unions. There came a time when the union contracts were up and we had

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to have a negotiation over what the next contract would look like. So it's

not so much that it changed over time as that there was different emphasis

at different times on different issues. I did over the period I was there

have two occasions to negotiate union contracts. We did hire some

outside counsel. That was an occasion when we had outside counsel

helping us though I of course was very involved in the process. Part of

what did happen over time is I was very interested to get things in order, to

be sure that we knew what our policies were and that we had gathered all

of those together. As part of the union negotiations, there was always the

sense that people had had special arrangements made for them and people

didn't really know what all the special arrangements were and so I wanted

to set up a system so we would at least have confidence what the rules

were that people were operating under and what provisions had been made

for them and so I did take a series of steps like that.

Ms. Henry:

Now that sounds like maybe one of your policy initiatives was to more or

less organize the entire office.

Ms. Schiffer:

Well, really, it wasn't just the General Counsel's Office, it was...to be

sure that the agency policies were in some kind of order. When you say

one of my initiatives, it's certainly true that we had specific projects that

we were working on from time to time, but I don't recall going in with a

whole list of initiatives for the General Counsel's Office, because it was

after all a quite small General Counsel's Office in the scheme of the

organization. Also, NPR had, as I mentioned, just come through a fairly

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troubled financial time and the way that NPR had continued is that the

member stations had agreed that they would provide funding to NPR to

keep going and as a result, the member stations were given greater

responsibility on the Board and greater responsibility in the management

of the organization. There was a fair amount of working out that principle

through a set of different ways that the organization ran and I do

remember being involved with that, how we were going to work with the

member stations more effectively.

Ms. Henry:

Were there any particular issues, like any litigations or issues of public

import kind of outside of the agency that you were involved in as General

Counsel during that time?

Ms. Schiffer:

We had very little litigation, which was of course a good thing — when

you're an organization, you don't like being sued. I remember we had

some matters before the FCC on behalf of the member stations that were

significant. There was a problem with what was called Channel 6.

Channel 6 on television operated at a certain frequency that was near in

the broadcast spectrum to the channels that were reserved for public radio,

essentially 88 to 92 on your dial. That is why you'll generally find public

radio in that 88 to 92 spectrum, at least at that time. I remember having a

big project to try to figure out and eventually really negotiate with the

lawyers who represented Channel 6 stations to see if we could each make

a little bit of accommodation and resolve that rather than just leaving it up

to the FCC and a rulemaking. I now think of that in retrospect as a

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relatively early negotiated rulemaking. We did accomplish a result that

worked out well. So that was something that we worked on for the

member stations as NPR itself didn't actually broadcast. It mattered to

NPR but it was a little outside of what NPR did. Apart from that, there

was an organization of the general counsels of a number of radio and

television entities that included the general counsels of ABC and NBC and

I do remember having some involvement in that and going to meetings

with those people because we had common issues and it was helpful to

have that perspective.

Ms. Henry: And did you have the opportunity to become acquainted with other

women general counsels at the time; you mentioned the two in the non-

profit area, or in the for profit area?

Ms. Schiffer: Some of the for-profit general counsels were women as well and so yes, I

did have the opportunity to become acquainted with them. We're now by

the mid-1980's, and so it was a time when there was certainly across the

board more women in those kinds of positions than there would have been

ten or fifteen years before.

Ms. Henry: Did you ever have the opportunity to discuss with any of them what

gender issues or gender questions that they were facing or addressing in

their positions?

Ms. Schiffer: I don't remember specific discussions about it but it was certainly true that

we all were aware that we were women in these positions. I don't think

that we particularly felt that that made our jobs more difficult.

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Ms. Henry:

I was just wondering if sometimes women in these positions because there

can be such a small group of them, will share experiences, talk about what

they're doing in their position and see how other people are enjoying their

position and what kind of issues they're facing, but you don't recall

anything like that?

Ms. Schiffer:

I don't recall. I certainly continued to be involved in women's issues and

continued through much of that time to be on the board of the Women's

Legal Defense Fund and so I was quite conscious of concerns that women

faced. But I don't have a particular recollection of that being an issue at

NPR.

Ms. Henry:

Did you participate in any other boards or any other activities during your

tenure as GC?

Ms. Schiffer:

It's a little hard for me to peg the times exactly, but I was for a long time

on the board of the District of Columbia Bar and I think it's likely that that

was throughout my time at NPR. I was on the board of an organization

called American Rivers, and again I don't exactly remember when I

started on the American Rivers board. I was on the board of the Women's

Legal Defense Fund. So I did have outside activities, some of which were

focused on the role of women.

Ms. Henry:

Not everyone will be familiar with American Rivers; could you describe

that?

Ms. Schiffer:

Yes. American Rivers is a non-profit organization that is an

environmental group focused on, in part, implementation of the Wild and

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Scenic Rivers Act, which is a statue that was passed to give protection to

our nations' rivers, and in part on broader river issues generally. I saw it

as an opportunity to be involved with an environmental group that I

thought was doing very interesting work.

Ms. Henry:

And during this period of time, is there anything that kind of stands out for

you in the rest of your life, besides your professional life; anything of

import at that time, we're at 1984 to 1989?

Ms. Schiffer:

It's a little hard for me to pinpoint exactly. I've had a long involvement

with a reading group and my reading group was certainly going on at that

time. I've always cooked, I've always done hiking and that was a period

where I focused on hiking in the national parks and adding to my national

parks list. I certainly took some vacations in the national parks. I

remember fairly shortly after we completed one of the union negotiations,

going to Big Bend National Park, which is in very remote Texas, which

seemed very far away. Thos are some activities that I certainly was

involved in.

Ms. Henry:

Could you tell me more. You mentioned your national parks list.

Ms. Schiffer:

I have a lifetime goal to go to all of the national parks, the real national

parks, of which we have now, in this country in the range of 58 or 59. I

probably got interested in doing that when I went down the Colorado

River through the Grand Canyon in the summer of 1978. I decided that

was quite a spectacular national park and I'd like to see more of them. As

of now [2008], I've been to 40 some of the 50 some — its a little hard to

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Ms. Henry:

Ms. Schiffer:

Ms Henry:

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pinpoint the numbers exactly — many of course more than once. But that

was a time when I was actively pursuing that goal, so taking a vacation in

Big Bend was quite an exciting thing to do.

Now have you ... I should know this but I don't. I presume that there are

national parks in Alaska, for example?

There are national parks in Alaska. Alaska probably has more than others;

Alaska has eight. And I've been to three or four of the ones in Alaska. I

have some missing ones. Most of the ones I have missing are either very

new or in remote places, not so easy to get to. But I have had an

opportunity to go to some of the ones in Alaska.

And when you go to the national parks, is there anything in particular you

do. Do you hike? Do you just visit them?

I try to hike. My measure is national parks I've hiked in. Now a few of

them are water national parks so they don't so much lend themselves to

hiking, but in general hiking is what I like to do.

Have you ever done the Shenandoah?

I haven't done the whole Appalachian Trial, but Shenandoah National

Park is one of our nearby national parks and that's one that I've spent a

fair amount of time hiking in.

Do you have any idea how many miles you've hiked?

None. I have no idea.

I presume some people track that in their lives.

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Ms. Schiffer:

Ms. Henry:

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They probably do. I don't. I will say my biggest distance

accomplishment is that this past November I trained for and walked a

marathon, something I wasn't sure I could do. But I did. It was

wonderful. But I don't actually have a sense of how much — what distance

— I've hiked.

That's impressive. I've never done it.

It's a lot of fun.

Is there anything, thinking about this five-year period, it's really — while it

doesn't seem like it's remarkable to you — from my perspective this is still

just 1984, it's more than 20 years ago, and you're general counsel of a

major non-profit. So, I would think that was still relatively remarkable

given even today how few general counsels we have who are women. So

I was just probing a little more to see if there's anything else you can

remember about that five-year period.

I will certainly continue to reflect on it, but I don't...there's not too much

at the moment that really stands out about that time.

Any particular mentors or people who were of particular importance to

you during that period?

NPR of course has very wonderful reporters. They are not lawyers, but

they are the reporters and I was very honored to be able to spend time with

some of those reporters and work with them and I would certainly say that

the group of really wonderful and accomplished women reporters,

particularly Nina Totenberg and Linda Wortheimer and Cokie Roberts,

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Ms. Henry:

Ms. Schiffer:

Ms. Henry:

were available to me and quite wonderful to me while I was there. So that

was really a very nice part of the job. There were of course men reporters

too who were terrific and it was really nice to be able to spend time with

them...with all those reporters. There was a general counsel eventually at

PBS named Paula Jameson who was a woman, a really terrific person, and

I remember talking to her about our common issues and I thought that was

a good collegial relationship. There were a couple of lawyers outside of

NPR who specialized in communications work and that was an area of the

law that I didn't know particularly well. Though I certainly knew the

administrative law side of it, I didn't know the communications law side.

And several of those people were really quite terrific to me and available

and answered lots of questions. They were people that I either knew from

before, I knew from law school or knew in some other way from before, or

they were people who friends of mine said "oh this is a person who works

in communications law. You will now have an interest in it. They would

be pleased to spend time with you." And so there came to be a group of

people who were helpful to me who were — as I think of them, they were

primarily men, but there were some women too — and a lot of them were in

this area of communications law that I hadn't been so familiar with before.

I gather during the five years you became very familiar with it (laughter).

"Not very familiar.- But I certainly learned something, that's right.

Now it looks like in September of 1989 you left that position and went

into private practice.

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Ms. Schiffer: I did.

Ms. Henry: Can you tell me a little bit about your departure, why you decided to make

the switch and what led you to Nussbaum & Wald for private practice?

Ms. Schiffer: Again, I had kind of done the range of issues at NPR and it had a very

small group of lawyers. I have always loved working with a lot of smart

lawyers and so I had some interest in going back to work with a bigger

group of smart lawyers and pretty much by fluke I would say at the time, I

met Bob Wald. His wife, Pat Wald had long been a mentor of mine and

really continued to be a mentor. I had first met Pat at the Center for Law

and Social Policy in the 1970's, and then when I was at the Justice

Department the first time, she had been there as Assistant Attorney

General for the Legislative Office and then was appointed to the bench.

She was always a mentor to me. Her husband Bob Wald I had also known

when I had been at the Center of Law and Social Policy and I saw Bob

Wald during that 1989 period. He had been head of Wald, Harkrader, &

Ross, which had been a big law firm in Washington and that the law firm

had eventually — different pieces of it had gone their different ways and

Bob said that he was thinking of forming a new law firm with Mike

Nussbaum and would I have any interest in going into it. So it seemed

like a terrific opportunity to go to this new enterprise. Of course, I had

extremely high regard for Bob Wald. It just seemed like a good

opportunity and the time seemed pretty right to do it.

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Ms. Henry:

Why don't you take a minute and if you can tell our listeners a little bit

about Pat Wald?

Ms. Schiffer:

Pat Wald is a very wonderful person who I continue to be friends with.

She was one of the early, very highly regarded and successful women

lawyers in the country. She was a graduate of Yale Law School, I don't

know, in the early 1950's or around 1950 and then had clerked on the

Second Circuit then had come to Washington, worked briefly at Arnold &

Porter, I'm sure as one of the very first women there. Not the only, but

one of their first. And she had five children and also became interested in

public interest law and did a variety of things — I'm sure she's one of your

interviewees and I don't know each and every detail of her history but I

know that by the 1970's, she was working at the Center for Law and

Social Policy, and then a part of it that spun off called the Mental Health

Law Project, and that was really where I came to know her. She went on

to become first, a judge on the District of Colombia Circuit, which is a

very important and powerful court, and eventually the Chief Judge of that

court and I believe she was the first woman Chief Judge of a federal court

of appeals in the country. She's a completely unpretentious, very smart

and thoughtful person and wrote very important opinions on that court and

of course has continued to write prolifically. She left the Court sometime

in the 1990's to become a judge on the International War Crimes Tribunal

in The Hague and has since then done a variety of work, worked on a

variety of matters related as much to international law as other areas of the

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law. But she is, for a very unpretentious person, I would say certainly one

of the most illustrious women lawyers in the country and has always been

a wonderful friend and mentor to me. I have been very honored to have

the opportunity to spend time with her and she's just a terrific person.

Ms. Henry:

She's really remarkable.

Ms. Schiffer:

She's won many awards from the ABA and other groups. She's been

actively involved in the ABA as well as many other things.

Ms. Henry:

Oh sure. And I'm sure many people know of her but not many will have

had the opportunity to have been her friend for all these years. So you

decide to make this move to Nussbaum & Wald and what was your

portfolio like there, what were you doing?

Ms. Schiffer:

The firm represented parts of the London insurance market. At that time,

some of the cases that were of great interest to the London insurance

market were pollution coverage cases. There were companies that

because of a series of new federal laws, had the obligation to clean up past

pollution, pollution that they had caused, I wouldn't say pollution — It was

actually an ongoing problem — but pollution that they had caused, and the

Superfund law had come into play, something called the Resources

Conservation & Recovery Act, which is another hazardous waste cleanup,

law had come into play. States were getting interested. People were

bringing toxic tort litigation. As a result, these companies, during or after

the time they did their cleanup, were turning to their general liability

insurance carriers and saying by the way. this risk we believe to be a

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covered risk. And the insurance companies took the position generally

that it was not a covered risk. The issues in the case were quite a bit more

complicated than that, but that was the general framework of the cases.

They were fairly massive pieces of litigation, generally in state court, not

in federal court, because it was essentially construing insurance contracts.

There tended to be multiple insurance carriers in the cases. One company

would say I want to see what coverage I have for my liability at multiple

sites across the country where I have obligations to clean up pollution. So

that was the general framework of the cases. I worked on several of those,

but one in particular. That was not the only thing I did, but that was a big

chunk of what I did. Of course since I came with some knowledge of the

environmental laws that was helpful to the process.

I mistakenly omitted one fact from my NPR period that I just remembered.

At some time during my period at NPR, probably around 1985, I had a call

from Judy Areen, who had become the Dean of Georgetown Law School,

to say that they were interested in adding some adjunct faculty,

particularly women, and would I have an interest in coming to teach

environmental law there as an adjunct faculty person. Of course I was

very interested in that because I was very interested in keeping my finger

in environmental law while I was working at NPR, but I thought it would

be a daunting task to teach a whole course and so I agreed that I would be

pleased to do that if I could co-teach with another person. So I began

teaching environmental law at Georgetown with Nancy Firestone, a person

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Ms. Henry:

Ms. Schiffer:

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that I had worked with at the Justice Department. We had just a terrific

time teaching environmental law, and I have done it essentially

continuously since then. So that was a very important opportunity that I

had while I was at NPR and of course it continued through my Nussbaum

& Wald time. What reminded me of it is that because I had kept my

finger in environmental law. I had some experience with the

environmental issues even though they were not in the forefront of

insurance coverage issues, but they plainly were the framework that

underlay some of those cases and it was helpful to have that background.

Now what was your position at the law firm?

I came as a partner.

Were there other women partners at the firm at the time?

It's 1989. Did your firm hire summer associates? Did you go through that

whole process?

Yes. We definitely hired summer associates and we hired other associates

too. I remember specifically some of the associates that we hired and my

spending a fair amount of time helping to recruit women associates and we

hired a couple of terrific women associates. Some of those...at least one

of those is a person I've kept up with and known. It's funny, I'm fairly

sure I was the only woman partner, at least in the beginning, but I'll have

to think about that.

But you had women associates as well.

We definitely had women associates.

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Ms. Henry:

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And based on the fact that it's difficult for you to remember whether you

were the only woman or not, I suspect in your mind it wasn't an issue...

I guess it wasn't. I don't know.

What about interviewing the young people coming up out of law school.

Were you seeing half women, half men? Were women a rarity? What

was the mixture?

It was a very small law firm. It was probably in the 15 lawyer range. And

so we didn't hire enormous numbers of people either for the summer or

full-time. We tended for a full-time lawyer to hire not right out of law

school but lateral hires. We did have a summer associate program. I think

we had both men and women who came through. I don't have a particular

recollection one way or the other.

Did you undertake any mentoring at the time? Was that something that

you thought about as a partner?

I certainly thought about the importance of helping to assure that less

experienced people had a good experience and there was certainly in

particular one woman, whom I paid attention to, and I think there were

additional ones but I have a particular one who I paid a lot of attention to.

Did you see yourself as a role model for these...

Well I certainly saw them as mentees. I think I feel more comfortable

saying that than as a role model.

Is there anything in particular you recall about your period there — putting

aside the cases that you described that you worked on and the mentoring -

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Ms. Schiffer:

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anything else stand out about your experiences as a partner at the firm?

Again, as possibly the only woman partner at the law firm?

Not particularly. I had been in private practice as you know very early on

for a few years, but basically to me the big focus was on the difference

between private practice and non-private practice work that I had done in

between and that made more of an impression on me than the role of being

a woman in the circumstance of the firm.

And tell me a little bit about the difference, how you perceived it going

from the non-profit world back into private practice?

Part of the difference was that in the non-profit and government jobs that I

had had a fair amount of independence and while we certainly had clients

— that is, at NPR the company was the client, and in the government,

agencies were client — it was a little less a daily presence than it felt like in

private practice and so that was a difference. Also when I was in private

practice, I was working primarily on this very big case that had a lot of

lawyers involved, and while I had certainly been involved before in

significant matters and substantial litigation, both big litigation and at

NPR in big projects, this had a little more of the sense of being one piece

of a very big enterprise rather than having quite the autonomy that I had

felt in previous experiences.

And did you like that more, less, or was it just...

I probably liked it less, but it was certainly different.

Now, you were there four years and then you moved back to DOJ.

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Ms. Schiffer: Right. I had of course always had in the back of my mind that I would be

interested in going back to work for the government if Democrats came

back into control. I had been there as a career person, not as a partisan

person, but it became clear to me that if I wanted to go back into the

government, I would really want to do it at a time when there were

Democrats. And so I was quite interested in the 1992 election and indeed,

when a Democrat finally came back, then I was interested in what

opportunities I would have. If you cast your mind back, you'll remember

that it took a long time for the Justice Department to get up and going in

the Clinton Administration because Janet Reno wasn't actually appointed

as the Attorney General — she wasn't confirmed until sometime in the

middle of March and so the Department didn't really get going until

somewhat into that administration. I had had a quite a quite terrific

opportunity, terrific both from the point of view of Nussbaum & Wald

being very accommodating about it, and from the point of view of it was

lucky I had the opportunity, of being the person who helped for the

incoming administration to do the transition for what was then the

Environment Division of the Justice Department. I should make a note

that the Land and Natural Resources Division was renamed the

Environment and Natural Resources Division. It was the same Division.

So it was the Division I had worked for. And then I had an opportunity to

be the head of the transition team for it. And that was really a fabulous,

fabulous opportunity and it really let me know some of the people who

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were going to be involved in filling some of those Justice Department

positions. So that was in late 1992 and after that, I really kept my eye on

whether I would have an opportunity to go back into the Division as a

political appointee. And I did eventually have that but the process took a

long time, partly because Justice took a long time to get up and going.

I remember I was in Washington at the time, the excitement...

Oh there was enormous excitement.

...amongst Democrats because of the sea change basically.

They'd been out for so long. And also the Dems had been out of power

for so long. At some point, somebody said to me that if I got to go back to

the Environment Division, people would see it as liberating France, in

other words, that the people in the Division really saw their mission as a

strongly environmentally protective mission and that they had felt that

they couldn't really fully exercise for a while and I will say that when I

got back there, I did have the sense that it was like that.

Now tell me a little bit about...you mentioned that you were head of the

transition team...

For the Division.

...for the Division at the change of administration. Can you tell our

listeners a little bit about what the team did and what you did?

I can first tell you how I got on the team — one of those lucky flukes. The

transition for Justice and associated issues was co-chaired by two people,

one of whom was Peter Edelman, who was at Georgetown and who I

-21 -

knew from my teacher at Georgetown. Peter, of course, did not know a lot

of environmental lawyers. His field was civil rights and other types like

that. But he knew I taught there and we kind of knew each other — I had

gone to college and law school with his brother. So Peter called me and

said, I need someone who will do the environment. How would you like

to do the environment? So that was really just a wonderful outgrowth of

the fact that I had taught at Georgetown — indirectly — that I had taught at

Georgetown Law School. And then we put together a little team and who

at that time taught at Washington University Law School. I called a friend

of mine, Richard Lazarus, who is now a professor at Georgetown and

whom I had known from our earlier days at the Justice Department where

he had worked coming right out of law school in the late 1970's. Richie

said he would love to work on the transition. We both really knew people

in the Division and it just seemed a perfect thing to be able to do. Then

we had a few other people that the people who were really running the

whole transition team thought that we needed to put on our team and so

we formed a very small group of people. We spent a lot of time

interviewing the Section Chiefs in the Division, the Republican leadership

in the Division who were going to be transitioning out, some people from

environmental groups. It was a big spectrum of people that we

interviewed to try to figure out what the issues were, that we were going to

be facing whoever came in to run the Department and the Division,

whether there were emergencies, whether there are cases that really had to

16081v I

- 22 -

be attended to right away, and what kind of s spectrum of immediate

issues were, and then a little bit more what the long term opportunities

were. We wrote a paper that was really ... I think in retrospect since I got

to help implement it, pretty solid (laughter). But it was a very small group

of people who did that transition. We were part of this bigger Justice

Department and related agencies transition.

Ms. Henry: And you did that while you were a partner...

Ms. Schiffer: Yes. It was a really done in two weeks. It was a very tight period of time

and I did it, I can't remember whether it was the first two weeks in

December, but it was something like that. And my law firm was very

accommodating about my spending time on it.

Ms. Henry: That would be such a, you know, such an exciting time, a wonderful

opportunity.

Ms. Schiffer: Yes.

Ms. Henry: So how did your position come about then?

Ms. Schiffer: Of course by then, I was quite interested in going back and it was some

combination of the fact that people at American Rivers knew me, and so

when the environmental groups were invited to meetings to mention

people who might be appropriate for going into the Division, they were

helpful to me, and I had come to know both of the people who were

running the Justice transition: Nussbaum, who was the other head of the

whole Justice transition, and he was of course close to the Clintons and

Peter Edelman. So it was just a cluster of ways that I at least got to be on

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Ms. Henry:

something of a short list and then of course it took awhile for there to be

an Attorney General and so as a result, by the time Janet Reno came in as

the Attorney General, she was probably somewhat more amenable to

paying attention to the groups of people who the rest of the Clinton

Administration had already put together. So I had the opportunity to

interview with her. I originally went back to the Department as the

Deputy Assistant Attorney General, not as the Assistant Attorney General,

and somebody else was named as the Assistant Attorney General. But

over time, he determined to withdraw and by then I had been there, I had

become the Acting Assistant Attorney General, and I had done some work

with both Janet Reno and Webb Hubbell, who was very supportive both to

me and to the Division. So they named me as the nominee. Then I had a

long confirmation process.

I was going to ask you if that position required confirmation.

Ms. Schiffer: Yes, it definitely requires confirmation. I was eventually nominated in

early February of 1994. There was a different set of rules then. I became

the Acting Assistant Attorney General in September of 1993, so I was

actually doing most of the job throughout this time. I was nominated in

February of 1994 and I was confirmed in October 1994. So that was quite

a long process.

Ms. Henry: And can you tell our listeners a little bit about the process?

Ms. Schiffer: Part of it was that it was just slow; there was a lot of paperwork, there

were a lot of clearances. Part of it was that I became hostage to an issue

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- 24 -

not personal to me, but to how the Environmental Crime Section, in the

Division, was being handled. It was a section that had been in a fair

amount of trouble long before I got there.1 Some in Congress thought we

should do certain things to fix it and others thought if we did those things,

it wouldn't be okay. It was clear to me that something needed to be done

about that section. And so it was a question of how you made all of that

work and nevertheless continue to get confirmed. And the Department

had a hard time getting somebody in as head of the Civil Rights Division.

Civil Rights was obviously an enormous priority for the administration, as

well it should have been, and so it was determined that when a person was

finally nominated, that person really needed to be given priority over me.

We — our Division — was really doing fine, even though I hadn't been

confirmed. And so it was fair to make that decision. But any

confirmation just took a long time as a result. And of course it's no fun

going through that process because you feel, well, it was likely to come

out okay, but who knew? And there were some activities that you weren't

supposed to really engage in. I wasn't really supposed to give speeches. I

wasn't really supposed to testify before Congress because I might do

something that would upset the apple cart on the road to getting

confirmed. And I must say I didn't feel inhibited in making the decisions

that I needed to make. It just seemed to me that I had to do that and that if

I kept looking over my shoulder about making the decisions, I wouldn't be

1 [Not on tape] We identified the Environmental Crimes Section as an issue in our transition report]

160810

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doing an effective job and that didn't seem right. But anyway, it

eventually worked out terrifically.

Ms. Henry:

This February 29, 2008. We're on Side 2 of our tape, our session, talking

about Lois's life in the law. And Lois, if you can just pick up where we

were, discussing your position at Justice.

Ms. Schiffer:

We were talking a little bit about the confirmation process [feedback on

tape]. I had a hard time getting a hearing scheduled before the Judiciary

Committee...that was what took quite awhile. But I did eventually have a

hearing sometime in September and then confirmation after that was quite

a prompt process. I was voted out of the Committee pretty quickly and

eventually voted on on the floor pretty quickly. I was confirmed on

October 7th, just after midnight and I was of course by that time quite

determined I would be sworn in the same day. It turns out, if you cast

your mind back to the early Supreme Court cases that I had to have a

commission. That commission was the subject of Marbury versus

Madison, where the question was would the President deliver the

commission. And the commission had to be actually signed by the

President. There was no problem with that, but there was a problem

having it happen in a couple of hours, which is what I needed to happen.

So, starting the morning of the 7th, when I was actually in New York, we

tried to see whether we could get the commission out of the White House

that day so I could be sworn in that night. Everyone was very patient

about it. The Attorney General said she would be glad to wait around if

1608

-26-

that would help. Pat Wald, whom I had called, said she would be glad to

come and swear me in on a little bit of notice. I called my friends, I called

my family, and about 7:30 or so that night, the commission happened a

little earlier and then everybody got together and I got sworn in in the

Attorney General's conference room that day. That was my informal

swearing in, but it was a very wonderful occasion because of course it had

been quite awhile in coming. Then sometime in early November, I had a

more formal swearing in, with a big event in the Great Hall of Justice that

was really quite a wonderful occasion. I want to go back for a second. I

seem to be a little out of synch here. But I wanted to mention that when I

was at the law firm, when I was at Nussbaum & Wald, there had been a

group of women partners who were essentially the first women partners in

a number of law firms around town, who had been meeting pretty

regularly since the time when they were the first women partners, and

Brooksley Born, who was one of those at Arnold & Porter, invited me

when I went to Nussbaum & Wald to join that group and so I had really

very wonderful support from this citywide group of women partners, and

that was really quite a nice support group for me as I was at the law firm.

Ms. Henry: I'm sure it was a remarkable group of women.

Ms. Schiffer: It was quite a... yes, it was quite an impressive group of women, that's

exactly right, and so I felt very fortunate to be included among them. We

met for lunch more or less once a month and just talked. The issues

ranged the gamut. It was for me a helpful peer group to have.

-27-

16081v1

Anyway, so I got sworn in at Justice that day. Really, my day to day work

didn't change that much because I had essentially been doing the job for

awhile. When it did change fairly dramatically was that November after

the election because that election as you may remember was the election

where the Republicans took charge of both the House and the Senate. So

there was a real shock inside the Clinton Administration about how that

was going to work and what effect that was going to have on people's

priorities and the priorities and the projects of the Administration. We

held onto the environment pretty well in the face of that, but it did mean

that for quite awhile I had to spend a fair amount of time, as did the people

I worked with , essentially defending what we were doing and talking of

framing it in terms of how we weren't causing a taking at every turn and

environmental laws really were important laws and needed to continue to

be enforced and that there was widespread support for them. It certainly

didn't affect how we handled causes, but it did cause me to have to spend

a fair amount of time working on dealing with the Contract With America

so that we were sure that the Contract With America didn't cripple the

important environmental work that the Division and the Department were

doing.

Ms„ Henry:

Are there any particular initiatives that you can recall during that period

that you were proud of?

Ms. Schiffer:

Yes, I had a lot of initiatives and was very proud of a lot of things that we

did. I worked a lot on Superfund, which was a statute that was under

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6081v1

some siege and we wanted to be sure that we were handling those cases

effectively. I spent a lot of personal time working on proposed legislation

that was going to possibly reenact Superfund, we hoped in a way that

would continue to have it be a strong and viable law. The Administration

was behind a rewrite of the statute and I spent a lot of time on that. I spent

a lot of time talking to the people both in the Division and outside groups

about that statute. So that was one project. I had a very big interest in

alternative dispute resolution and being sure that our Division was using

alternative dispute resolution. That became part of a bigger Department-

wide program because Attorney General Reno was also quite interested in

alternative dispute resolution. That the Department put in place a good

program, including with a person who was in charge of it and our Division

had one of the best records on introducing alternative dispute resolution.

It was very interesting, because when I first got back to Justice, people

were somewhat dubious and I remember people saying to me, But what

we know how to do is to handle cases. We don't have to settle cases. We

aren't so interested in that." And my basic theory was success would get

success and if we could get a couple successes, and then more of those

successes, people would see that maybe this was a good thing to do. But

we did eventually gat a very effective program and people really

understood that it was a good tool; it wasn't a tool that supplanted

anything else and it was important to have the capacity to go to trial or go

to hearing if you needed to, but that it was quite an effective program and

160810

-29-

it certainly had the effect of enabling us to settle more cases and to settle

cases in a way that took into broader account the real public policy issues

that were at stake. So that was one initiative that I was pretty enthusiastic

about.

We had an interest in international matters. Remember, the Justice

Department lawyers are the lawyers in court for other agencies and so that

was our nexus. As a result of our work, we had an enforcement program

and we really knew quite a lot about how enforcement of laws worked.

That was an expertise that was really useful throughout the government.

And based on that, we got involved in some of the programs that came up

to implement the North American Free Trade Agreement, which had an

environmental side agreement and there were ways in which the

environmental side agreement was implemented that we had knowledge

about and brought to bear. We also brought our knowledge of how

enforcement programs generally worked to bear as the government was

setting up international conferences of enforcers to look at enforcement of

environmental laws in other countries as well. So I developed a little

group of people who were knowledgeable about those things, and I think

that program was pretty effective. We didn't want to put our heads up too

high because it wasn't really at the core of what the Division was

supposed to be doing. But I think that it was an important program and

that it has continued to this day.

160810

-30-

I had inherited, as I mentioned briefly, a not very functional

Environmental Crimes Section and I worked very hard and very long and

ultimately quite successfully at getting that program straightened out. We

eventually hired a new Section Chief. We made clear that the bad times

were behind us. We set up ways to work very closely with U.S. Attorneys

offices across the country. We mended fences with the Environmental

Agency, which was the source of criminal referrals for us. We kept some

of the good old staff and hired some new people and really in a big way

mended that program. And it became a strong and effective program. In

fact it was very funny that there came one time when somebody outside

wrote an article questioning our statistics. I had no confidence in the old

statistics, so I wasn't willing to say we now had more cases because I

didn't have a good basis of comparison. But somebody wrote an article

about how our caseload had totally plummeted and I remember the

Attorney General calling me and saying; "You've gotten this issue totally

out of my visibility. So could you go please fix this little problem so it

doesn't come back as a problem for me?" We had really quite

successfully repaired what was a quite broken program. That

environmental crimes program has continued to be one of the great

strengths of the Justice Department and the Environment Division. That

really was an example of how if you don't have turf fights and instead you

try to work cooperatively with people and realize that there's plenty of

work and its just a question of bringing to bear as many resources as you

160810

-31-

can on that work that you can have an effective program. We just said

we're not having turf fights...work cooperatively together. But we really

had a good program that involved a lot of Assistant U.S. Attorneys as well

as the division lawyers and much of the turf fighting got put aside. So that

was something that I was extremely proud of and has continued.

There had been ongoing issues on the civil enforcement side between EPA

and the Justice Department with a feeling by some at Justice that we

weren't getting good enough case referrals, particularly in the hazardous

waste area, the area of hazardous waste enforcement, because the statute

didn't require that cases come to Justice whereas other statutes did require

that for big cases in both the air programs and the water programs. We

really developed a way of working with the EPA people in the regions that

was much more cooperative and so everybody would look at the whole

range of cases and try to figure out what were the best tools to be used for

them, and that also I think was quite successful. I told people I wasn't

interested in ping-pong anymore, of having EPA lob a case at us and we

would find three faults and lob it back and I thought people needed to get

together and just work on it and that we could have a much stronger

program. And of course, EPA by then had really quite terrific people too

and so we used that opportunity to begin to focus not so much on having

numbers of little cases, but on having possibly fewer but very big cases,

and so we developed very significant enforcement program. We brought a

number of cases against automobile manufacturers who we thought were

16081 v1

- 32 -

not putting pollution control equipment in the cars in the right way. That

cooperative approach eventually was the source of the big series of cases

against coal-fired power plants that were, that continues and that really

have made a big dent in some of the emissions that pollute the air. We

had a very big water enforcement program and had a number of cases on

municipal sewage treatment against a number of big cities with very

effective consent decrees that really helped those cities to clean up their

sewage collection and sewage treatment facilities. So it came to be a very

significant program.

I was very interested in, and Attorney General Reno was very interested

in, some of our Indian cases, and she fairly early on convened a listening

conference of tribes from all over the country that we participated in. So

one of the things I really worked on was being sure that we worked more

effectively with the Department of the Interior on developing the cases

that we brought in exercise of the United States' trust responsibility on

behalf of Indian tribes. I had a section that worked on that and we really

tried to invigorate some of the cases of that section and get it to work more

closely with the Interior Department, again so that we wouldn't have ping-

pong, but we would work together to develop the cases and be sure that

we had the right information that we needed.

Ms. Henry: Now, what kind of cases were these?

Ms. Schiffer: The United States has a trust responsibility to federally recognize Indian

tribes. One of the ways it carries out that trust responsibility is to bring

16081v1

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cases on behalf of the tribes to secure water rights or land rights in the

West that the tribes are entitled to. The water rights cases in particular are

complicated and contentious. There are more, but those were certain

cases. I hired some Native Americans into that section. That turned out to

have been something that hadn't happened for awhile. That was very

important as well. We hired Native Americans throughout the Division,

but people had a particular interest in the Indian Resources Section and

that was a way that we did it.

One of the huge issues that we worked on and that I spent a fair amount of

personal time on and really became a project was that President Clinton,

when he came in and before I was back at the Department, knew that there

were big problems in the Pacific Northwest which had been called the

Spotted Owl problems. The timber industry was failing for a variety of

reasons. The timber industry had been quite successful in blaming it on

enforcement of the Endangered Species Act to protect species like the

Spotted Owl. President Clinton had said, enough. We need a way that

both protects the old growth forests resources and provides adequate

supply of timber for the timber companies. All of this was heavily tied up

in court. There had been injunctions and basically, what we needed was a

plan and then, on the basis of the plan, to get the injunctions lifted.

Because that was focused on getting the injunctions lifted, the Justice

Department had a significant role in it. That was a long, hard process

where eventually, in December of 1994, we succeeded in getting a quite

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1 608

terrific district court judge in the State of Washington lift the injunction

that had been place and in a quite wonderful opinion, he said well, you've

done just enough so that I think this resource will be protected. Don't

think you can go back on this set of protections that you've put in place.

But on the other hand, I'm lifting the injunctions, and U.S. Forest Service

timber sales can go forward in the Pacific Northwest. Then that played

out into a whole series of additional cases. There was new legislation,

which caused some complications in it, but there were a whole series of

cases that related to management of the national forests that we all then

spent a lot of time on. But that huge effort, with a lot of people throughout

the government and in the Justice Department, both in my own division

and in the U.S. Attorney's offices, to get a program that it would be a good

basis to get that injunction lifted, was one of the big projects that I worked

on, you know we were quite pleased about.

I was determined somewhat to keep my finger in hands-on practice, and so

I actually argued a couple of appeals myself. One of them was a case

where a trial judge had found the whole Superfund program to be a

Constitutional violation on some theories that didn't make a lot of sense.

But I determined I really wanted to argue that one in the Eleventh Circuit

and we got a resounding victory reinstating the program — not reinstating

it, it never really went away — but affirming that it would be retroactive

and it wasn't a violation of the interstate commerce clause to have a strong

Superfund program. Then I got the chance to argue a Supreme Court case

-35-

I 608 I v I

Ms. Henry:

Ms. Schiffer:

Ms. Henry:

Ms. Schiffer:

Ms. Henry:

Ms. Schiffer:

16081v1

myself too, which was called Bestfoods, and I worked very hard on it and

won it nine to nothing, so it was quite successful. I had of course

enormous support and help from the Solicitor General's Office in doing

that. I was very happy to have the opportunity to do that.

Well, it looks like I've got a little bit more because that's obviously...

Yes, that was great...

Very few lawyers have the opportunity to argue before the Supreme Court

so it's certainly worth spending some time about. First, tell me a little bit

about what the case was about.

It changed a little bit as we got it to the Supreme Court. There had been a

question, if you had a parent company and a subsidiary company, whether

the parent company could be considered liable to pay for the Superfund

cleanup. It had been the subsidiary company that had been more or less

the actor at one of the Superfund sites. The way the case was framed

originally, it was one of parent and subsidiary liability. As it evolved, and

as we paid more attention to it as it moved through the courts and

particularly to the Supreme Court, we really thought about it as, what are

the indicia of the parent company itself being active at the Superfund site

so that it would have cleanup responsibility whether the sub had been

there or not.

Based on its own actions.

Based on its own actions, that's exactly correct. And what would be the

measure of enough action by the parent at the site that it wouldn't be just

- 36 -

normal parent supervision of its sub, but really be that it would have its

own liability. So that was the way the case was framed by the time it got

to the Supreme Court. I knew of course a lot about the Superfund

program. I was quite steeped in it. I had actually worked on Superfund

cases when I had been in the Justice Department the first time. I had paid

a lot of attention to Superfund law all the way through. So I was very

confident about my knowledge of the Superfund law. I was a little less

confident about my knowledge of subsidiary and parent law (laughter).

Also I wasn't so confident about my knowledge of how to argue a case in

the Supreme Court. So we worked on those parts. And there were very

effective lawyers on the other side of the case. The case actually went up

as one name and then the company changed in the course of it so it

became the Bestfoods case. When it was originally taken, when cert was

granted, it had a different name. I believe that it was a case, though I'm

actually not so sure at the moment, where the United States petitioned for

cert. So basically, we worked very hard on how you would frame it and

why it was that it wouldn't be just the normal question of how you pierce

the corporate veil to get to the parents kinds of questions, because of

course it's very hard to pierce the corporate veil. We had very strong facts

in this case because the parent and the subsidiary were relatively small

companies at the time that was before Bestfoods acquired them. The

parent was all over the actions, indeed at some point in the argument,

Justice Scalia turned to the person who was arguing on the other side and

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160810

said "that fact doesn't help you," because we really had quite strong facts

about the parent being so actively involved. So that was the case and the

Supreme Court came up with their own standard for what the measure

would be, but we certainly won on the basis that a parent company could

be liable at a Superfund site under the Superfund laws if it exercised

enough of its own activity at the site.

Ms. Henry: And can you tell our listeners a little bit about the experience of arguing at

the Supreme Court?

Ms. Schiffer: Oh yes.

Ms. Henry: Because it's quite a bit of pomp and circumstance really.

Ms. Schiffer: It's a lot of pomp and circumstance. Of course I was much more focused

on the preparation. I spent about a month really reading all the cases. I

didn't write the brief myself. The Solicitor General's Office wrote the

brief. But I obviously paid attention to the brief as it was being written. I

spent a lot of time reading all the cases, thinking through all the questions.

The Solicitor General's Office did three moot courts for me, which was

just incredibly generous of them with their time and they were quite

available to me to go and talk about questions about, how you might frame

things and how to argue. So I felt by the time I got there that I was about

as prepared as anybody could be and that I had been prepared by the best.

I mean, I had been prepared by people who really knew how to argue at

the Supreme Court. But, there's that moment when you stand up there and

you think all your knowledge is going to go away. Then Justice O'Connor

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-38-

asked the first question and it was a question that I certainly had thought

of before and knew very well how to answer, and I had been told that she

would always ask the first and it would be a very hard question. So once I

felt that I could easily answer this very hard question, I kind of calmed

down and then it was just an experience of really paying attention to the

questions and sorting them out to get my argument in. I also remember

that we had all agreed I would try to save five minutes so that I would

have rebuttal for my opponent, because everybody thought that my

opponent, who had formerly worked in the Solicitor General's Office,

needed to know that if he said someihing really off-base, he was going to

get caught. And I fought very hard to hold on to that five minutes and I

couldn't do it. I mean, they just kept asking me questions and asking me

questions, and finally, by the time I sat down, I had no time left. But it

turned out to be fine. And we won. So it was a very exciting experience.

Once you got past the really nerve-wracking part of it, I think really quite

a good experience, and I was very glad to have the opportunity.

I will tell one funny women's story about that argument. At some point a

couple of weeks before the argument, I had been working a lot of late

nights because I couldn't completely stop doing my day job, and I was

spending a lot of time preparing for this. So I went upstairs to the

Solicitor General's Office, which was just right above my office a few

floors up, and there was a lovely woman lawyer there and I said, you

know, we haven't really talked about what to wear, but I'm planning to

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Ms. Henry:

wear my navy blue suit. Well you'd think I had said I was planning to

wear my red cocktail dress. She said you absolutely can't do that. I said I

can't? No, she said. Actually there's a dress code that grows out of the

fact that I, meaning she, had gone to Court one day in a taupe suit, taupe-

colored suit, and that Justice Rehnquist had thought that was a little dicey

and not befitting the Solicitor General's Office and do a dress code had

been negotiated and basically what women could wear were either black

suits or black dresses or an outfit that was made for them that looked like

morning coats that the men wore. I certainly wasn't going to do the latter,

and I didn't have a very good black suit, so I thought, oh my God, I have

to go shopping. At first I said, can I wear a black dress? She said no,

that's for people who are pregnant. You really have to wear a black suit.

So in the midst of all this preparation, I had to go out shopping (laughter)

and spend one of my evenings out shopping to get a new black suit. But I

felt very fortunate that I had stumbled onto this far enough in advance so

that I could be properly suited to be a representative of the Solicitor

General's Office in the Supreme Court. It was really a very good

experience and as I say, I felt extremely fortunate that 1 had people

preparing me who really knew what they were doing, and that they went

way out of the way to spend a lot of time with me so that I would

effectively prepared.

Now, who was the Solicitor General at the time?

- 40 -

Ms. Schiffer:

Ms. Henry:

Ms. Schiffer:

Ms. Henry:

Ms. Schiffer:

16081v1

Seth Waxman was the Solicitor General and he was obviously aware of

the case and I knew him. I was really working with several other people

in the office and in particular Jeff Minear, who was invaluable to me and

just spent huge amounts of time with me.

You were saying that you were working with Jeff Minear.

Jeff Minear really went way out of his way to be helpful to me in that

case. It was a significant case in terms of the Superfund program. It was

certainly not the most significant case in terms of the Solicitor General's

docket in the Supreme Court, and the general idea was that Assistant

Attorneys General, if they're very nice to the Solicitor General's Office,

can get one case. When a Superfund case comes up, I had gone and said,

I'd like this to be my one case. This is actually something I know about.

And everybody really had been quite terrific about letting me do it and

then helping me to be effectively prepared for it.

What was it like arguing to all nine Justices?

It's hard because of course they don't let you stop. They keep going and

you have to be both polite and yet thinking about what your arguments

are. Of course, the big trick, as with any oral argument, is to try to

anticipate all the questions. If there are question's you've thought about

ahead and you have a pretty good idea of what you're going to say, then it

isn't as hard as it would be if you get some surprise question. I had

anticipated all of the questions and so then the trick is really to see how

you're going to get in the argument you want to make and not just by way

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of response to questions. It was a pretty active bench. I recall trying to

hold onto this five minutes and not being able to do it which meant that

they just kept asking and asking. But I don't recall particular hostility and,

as I said, we had quite strong facts and we had by that time framed the

case in a way that we thought was more hospitable to winning and more

consistent with the statutory scheme.

Ms. Henry:

And the Court is generally fairly respectful of the Government and the

Government lawyers when they come in to argue.

Ms. Schiffer:

In general that's correct. Certainly I didn't think that Justices were

tripping over themselves to be nice to me, but they certainly were

courteous and that nobody was being overly hostile to me.

Ms. Henry:

And also, just for people who don't know, can you describe a couple

things that I happen to know about — the morning coats and also there's

this special office the Solicitor General has in the Court. Did you tell

people about that? Did you get to go there?

Ms. Schiffer:

There is a special office that the Solicitor General has in the Court. I had

actually been in that office many times because that part of the Court is

open to high up Government lawyers and so when I went to arguments, I

had been in the Solicitor General's room at the Court before. So that

wasn't new to me. And I had tried to go to most of the arguments in cases

that came out of the Environment Division — there were a number of them

over the time that I was at the Justice Department. The morning coats —

the tradition is that the Solicitor General wears a morning coat that is a

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Ms. Henry:

Ms. Schiffer:

I 608 I v I

special sort of fancy tuxedo-like coat. I can't quite describe it better than

that. The Solicitor General and the other people in the Solicitor General's

Office wear it. Women, of course, don't come quite as naturally by these

morning coats but there came a time when one of the women...and of

course there was a long time when women weren't in the Solicitor

General's Office. I don't know who the first woman was hired there but

there was a tradition of not having women there for quite some time. By

my time, there were women there. There were some of those women who

had morning coat-like jackets made for them and they wore them when

they argued. I think there was no question that...I mean, I certainly was

not going to do that and I was perfectly happy with my nice black suit

(laughter). But, it's a quite formal proceeding and there is of course this

special role for the Solicitor General, that is the chief lawyer speaking in

the Court on behalf of the United States, sometimes referred to

colloquially as the Tenth Justice, and there have been books written about

the Tenth Justice. If you argue on behalf of the federal government, your

really are doing it through the Solicitor General's Office and by agreement

of the Solicitor General's Office with very limited exceptions. There are a

few special circumstances and so, for these purposes, I was treated as if I

were part of the Solicitor General's Office and that was very helpful.

What I think we will do in our next sessions, I'd like to talk a little bit

about being in Janet Reno's Justice Department...

Oh, I would be thrilled to talk about that.

- 4.3 -

Ms. Henry: ...and talk about Janet and talk about the whole experience. I think that

would be very interesting for people to hear about.

Ms. Schiffer: Great. I would be pleased to do that.

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