Diana Murphy
February 6, 2006; February 28, 2006; March 20, 2006; April 11, 2006; May 25, 2006; August 8, 2006; September 19, 2006; November 1, 2006; December 20, 2006; April 25, 2007; June 26, 2007; July 3, 2007; August 23, 2007; April 25, 2008; June 23, 2008; April 7, 2009; May 21, 2009; June 23, 2009; February 18, 2010
Recommended Transcript of Interview with Diana Murphy (Feb. 6, 2006; Feb. 28, 2006; Citation Mar. 20, 2006; Apr. 11, 2006; May 25, 2006; Aug. 8, 2006; Sept. 19, 2006; Nov. 1, 2006; Dec. 20, 2006; Apr. 25, 2007; June 26, 2007; July 3, 2007; Aug. 23, 2007; Apr. 25, 2008; June 23, 2008; Apr. 7, 2009; May 21, 2009; June 23, 2009; Feb. 18, 2010), https://abawtp.law.stanford.edu/exhibits/show/diana-murphy.
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Terms of Use This oral history is part of the American Bar Association Women Trailblazers in the Law Project, a project initiated by the ABA Commission on Women in the Profession and sponsored by the ABA Senior Lawyers Division. This is a collaborative research project between the American Bar Association and the American Bar Foundation. Reprinted with permission from the American Bar Association. All rights reserved.
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ABA Senior Lawyers Division
Women Trailblazers in the Law
ORAL HISTORY
of
DIANA MURPHY
Interviewer: Lisa Brabbit
Dates of Interviews:
February 6, 2006 February 28, 2006 March 20, 2006 April 11, 2006 May 25, 2006 August 8, 2006 September 19, 2006 November 1, 2006 December 20, 2006 April 25, 2007 June 26, 2007 July 3, 2007 August 23, 2007 April 25, 2008 June 23, 2008 April 7, 2009 May 21, 2009 June 23, 2009 February 18, 2010 1 r~ I \ 1
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8 ORAL HISTORY OF
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12 THE HONORABLE DIANA MURPHY
() 13 \....J 14
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23 Transcribed By: Elizabeth J. Gangl, RPR
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25 www.paradigmreporting.com
0 2 (~) '· ' 1 INDEX OF INTERVIEWS
2
3 February 6, 2006 Pages 3 - 31
4 February 28, 2006 Pages 32 - 65 5 March 2 0, 2006 Pages 66 - 121
6 April 11, 2006 Pages 122 - 164 7 May 2 5, 2006 Pages 165 - 206
8 August 8' 2006 Pages 207 - 260 9 September 19, 2006 Pages 2 61 - 290
10 November 1 ' 2006 Pages 291 - 327 11 December 2 0, 2006 Pages 328 - 358 12 April 2 5, 2007 Pages 359 - 390 13 June 2 6, 2007 Pages 391 - 430 (-,) ._/ 14 July 3' 2007 Pages 431 - 473 15 August 2 3, 2007 Pages 474 - 501 16 April 25, 2008 Pages 502 -- 539 17 June 23, 2008 Pages 540 - 570
18 April 7' 2009 Pages 571 - 607 19 May 21, 2009 Pages 608 - 64 6
20 June 23, 2009 Pages 647 - 685
21 February 18, 2010 Pages 686 - 705 22
23
24
25 (J 3
1 (February 6, 2006.)
2 (MS. BRABBIT: Judge Murphy, as you know, I
3 am Lisa Brabbit, and on behalf of the American Bar
4 Association, the Commission on Women in the Profession,
5 and the Trail Blazers in the Law Project, thank you for
6 agreeing to offer your oral history and for sharing your
7 life story. Your past has influenced and touched so many
8 people, particularly women, and through this project you
9 will continue to influence and shape lives. This project
10 will also help to ensure that your legacy is captured in
11 your own voice.
12 In sum, we are grateful for your lifelong 0 13 dedication to important women's issues, community and the 14 administration of justice, and it is an honor for us to
15 hear your story. And so it seems appropriate then to
16 begin when your family and friends and community
17 celebrated your birth. Please tell us when and where you
18 were born and describe the members of your family at that
19 time.
20 JUDGE MURPHY: I was born on January 4,
21 1934 in Faribault, Minnesota, the first child of my
22 parents. My father, Albert W. [redacted], was a
23 physician, who at that time was working at a state
24 hospital in Faribault. When he graduated from the
25 University of Minnesota Medical School it was in the 4
n~- / 1 height of the Depression at very difficult times, and
2 doctors were being paid with produce grown by farmers.
3 It was very difficult to get started as a doctor, and he
4 therefore went to work for the State of Minnesota at the
5 state hospital that was in Faribault.
6 MS. BRABBIT: Tell us a little bit about
7 Faribault.
8 JUDGE MURPHY: Faribault is a pretty town.
9 It's probably got some 20,000 people at the present time.
10 It's a gently hilly country. My mother was born in
11 Medford, Minnesota. Because her parents were living on a
12 farm that was south of Faribault, she had gone to high
13 school in Faribault, so her father had moved there. So
14 that might have been one reason why they migrated to
15 Faribault when he went to work, because there were state
16 hospitals in some other towns in the state.
17 At that time they had a French Catholic church
18 and a German Catholic church. I'm trying to think if
19 there was another. Just recently I read in the newspaper
20 that the churches have all combined into one now. I mean
21 they were all Roman Catholic churches, but it shows
22 something about those times where the people coming from
23 different parts of the world sort of clustered together.
24 MS. BRABBIT: Did your parents belong to
25 either church? 5
1 JUDGE MURPHY: My mother was raised as a
2 Catholic. Her mother was born in Austria. My father was
3 born in Olivia, Minnesota, which is a much smaller town
4 about a hundred miles west of the Twin Cities, and his
5 family were Methodists. He belonged to a Masonic Lodge.
6 In those days, of course, the Masons and the Catholics
7 were pretty much anathema to each other. Whether my dad
8 went to church at that time, I don't know, but he
9 wouldn't have been going to the Catholic church.
10 MS. BRABBIT: Did your parents come to a
11.decision on how they were going to raise their kids with
12 respect to faith? () 13 JUDGE MURPHY: Well, they didn't have to do 14 anything other than baptize me at the beginning, so I
15 think that all came later, but we'll talk about that when
16 we talk about school.
17 MS. BRABBIT: Tell us about your home.
18 Describe the home where you lived when you were a young
19 child in Faribault.
20 JUDGE MURPHY: We moved when I was still
21 basically a baby, maybe when I was two. I have no memory
22 of Faribault from that time.
23 MS. BRABBIT: Where did you move to?
24 JUDGE MURPHY: To Chillicothe, Ohio. My
25 dad had gotten a job with the Veterans Administration as 6 n 1 a doctor, and we moved to Chillicothe, Ohio where there
2 was a Veterans Hospital.
3 MS. BRABBIT: How long did you live there
4 in Chillicothe, Ohio?
5 JUDGE MURPHY: Not very long, I've got no
6 memory of that really either. Then he joined the Army
7 Medical Corps, that's what it was called in those days,
8 and was sent to Fort Hayes, which was in Columbus, Dhio,
9 and I do have some memories of that. I could work back
10 when some of the years were exactly, but I think probably
11 I was three maybe when we moved from Chillicothe to
12 Columbus. We lived there for a couple of years. Some 13 years ago, when I was in Columbus for a court-related 0 14 event, I went out to that area where Fort Hayes was. I
15 remember we lived in a big house, it was like a double
16 house, a stone house, sort of a gloomy-looking place, and
17 I found the housing. They weren't quite as big as my
18 memory, but they were· substantial houses. We lived there
19 for, I would say, maybe two years, and my dad was
20 transferred to Walter Reed Hospital in Washington. I
21 mean it was actually, I think, possibly located in
22 Bethesda, Maryland.
23 Anyway, we lived in Bethesda. We had a very
24 nice house, free-standing house with a big yard, so many
25 trees. It was a very nice house, I loved it, and my dad u 7
1 built me a playhouse in the backyard and a swing and a
2 slide. I absolutely loved it. And there was a porch. I
3 remember organizing some of the neighbor kids to put on a
4 play and we concocted it on our porch, but we never got
5 it really all put together. But we had unfortunately
6 invited people for it, and I've blocked out exactly what
7 reception was received, but I remember being really very
8 nervous and concerned that we weren't ready.
9 MS. BRABBIT: What role then did you take
10 in orchestrating this activity with young kids?
11 JUDGE MURPHY: Well, it was my idea, and I
12 got them together to do it, and I had the idea about the 0 13 play, but the details weren't all worked out. So maybe I 14 learned something for the future.
15 MS. BRABBIT: How long were you in
16 Washington?
17 JUDGE MURPHY: We were there for a couple
18 of years. While we were there my dad noticed that I
19 could read the newspaper, I was reading stuff in the
20 newspaper. And so he said, well, if she can read the
21 newspaper, she should go to school.
22 MS. BRABBIT: And how old were you, Judge,
23 at this time?
24 JUDGE MURPHY: I was five. He took me over
25 there in the middle of the year, it was after the turn of 8
1 the year. I could figure this out by other things, so
2 remind me to do that.
3 MS. BRABBIT: Okay.
4 JUDGE MURPHY: And he said to the school
5 people, well, she's reading the newspaper so I think she
6 should be going to school. There were only a few months
7 left of school. She said, well, all right, we'll let her
8 stay and she can just see what she picks up, but then
9 they passed me to the second grade. An unusual thing
10 about the school was that it was a Seventh Day Adventist
11 School. It was very close to where we lived. That's a
12 stronghold of the Seventh Day Adventists, Bethesda, so I 13 was quite a little outsider. I was very young and I 0 14 didn't belong to this, you know, majority thing, and
15 everybody was carrying around bibles that were different
16 from the one that I was familiar with, so it was, you
17 know, I was younger and the whole thing was, you know,
18 sort of a loner.
19 MS. BRABBIT: What type of an effect did
20 that have on you?
21 JUDGE MURPHY: I don't know, other than
22 feeling different. I went to school, got moved up to the
23 second grade, as I said, and passed that. Then he was
24 transferred to Fort Jackson in Columbia, South Carolina.
25 I think at the time we went .there it was still Camp u 9
1 Jackson, but it became a fort. Pearl Harbor happened
2 while we were in Columbia, South Carolina, so obviously
3 all the Army facilities were greatly beefed up. I went
4 to the third and fourth grade in public school in
5 Columbia.
6 MS. BRABBIT: What do you remember about
7 that time?
8 JUDGE MURPHY: Really nothing much about
9 school. I remember a lot about living in Columbia. We
10 lived in one of those wonderful bungalows that had so
11 much more space than they looked like, you know, inside.
12 The roads were dirt. This is 1939, about then, when we 0 13 moved there. I would say '39. And even though, you 14 know, this was a neighborhood that had existed for some
15 time, the streets weren't paved.
16 There was an older girl that lived a couple
17 doors away named Frances Maunkton, and she and I would
18 play a game, it was a make-believe game. Grown Girls, we
19 called it, and we would sit for hours and we would talk
20 about what we would be and who we were doing it with and
21 what we were wearing, and then we would fight about who
22 would get John Garfield, so I remember that much better.
23 The school I don't remember anything about.
24 But I do remember riding my bike one day over
25 near the school when a car came up and a man said he had 10
1 a question to ask or something. I got off my bike, put
2 it on the bike stand, I went over to the car, and he said
3 I'll give you a dime if you lift up your skirt or your
4 dress or something. And my parents had never said don't
5 talk to people or anything like that, but it was just so
6 frightening and I just turned and ran, got on my bike and
7 pedaled away as fast as I could. I thought many times
8 what a close encounter, because the school was in an area
9 behind our house, up in some area that wasn't developed,
10 so it wasn't like there would be people around or
11 anything. Anyway, I wouldn't have mentioned that if it
12 hadn't been for the -- but you asked about the school. 13 MS. BRABBIT: Right. Did you share this C) 14 story with anyone at that time?
15 JUDGE MURPHY: I may have told my mother,
16 but I don't know if I did. It was so horrifying, and it
17 was humiliating. You felt dirty, you know. I have a
18 scar on my noBe, Bort of a bump. My sister gave me that.
19 MS. BRABBIT: Tell us about this.
20 JUDGE MURPHY: She had a toy that was
21 called Pound a Peg, and it was a toy with these colored
22 pegs and it was on a stand. And you would barn these pegs
23 and they would go through one way, and then you would
24 turn it around and you would barn some more. For whatever
25 reason I was down on the floor with my sister, and l) 11
1 instead of bamming the Pound a Peg, she did my nose.
2 MS. BRABBIT: She hit your nose.
3 JUDGE MURPHY: Right.
4 MS. BRABBIT: Let's talk about your sister
5 a little bit more. Where were you when she was born?
6 JUDGE MURPHY: In Bethesda. She was the
7 newcomer.
8 MS. BRABBIT: She was the newcomer, huh?
9 JUDGE MURPHY: I don't remember feeling
10 that specifically.
11 MS. BRABBIT: So what is the span, the age
12 span between the two of you?
13 JUDGE MURPHY: Four and three-fourths
14 years.
15 MS. BRABBIT: What is her name?
16 JUDGE MURPHY: Brenda.
17 MS. BRABBIT: And can you tell us her last
18 name?
19 JUDGE MURPHY: Motomura.
20 MS. BRABBIT: And how do you spell that?
21 JUDGE MURPHY: M-O-T-0-M-U-R-A.
22 MS. BRABBIT: What do you remember about
23 when she was born?
24 JUDGE MURPHY: Nothing about when she was
25 born specifically. I don't remember her coming home from 12 n 1 the hospital or mother being gone or anything, but I
2 remember her being around. She was so much younger than
3 I was, so I just remember her as a little girl there but
4 not doing things with her.
5 MS. BRABBIT: Was there a point in time in
6 your relationship when you started to do more with your
7 sister as you were growing up?
8 JUDGE MURPHY: It would have been when we
9 came back to Minnesota.
10 MS. BRABBIT: And when was that?
11 JUDGE MURPHY: My father, sometime in 1941
12 he went back -- wait a second. I don't have the time 13 exactly. I know that we were all together in the car, we 0 14 had gone out for ice cream when the car radio was on and
15 that was when we heard about Pearl Harbor, so we were all
16 together in South Carolina at that point. So he was
17 called back, he went back to Walter Reed, and I don't
18 know for how long that was, but we remained living in
19 Columbia while he was gone.
20 MS. BRABBIT: At Walter Reed?
21 JUDGE MURPHY: Right, and it was sort of a
22 mysterious time. My mother said that he was ill and
23 that's why he went back. Late in his life I asked him
24 about it and he said, no, he was working there. So I'm
25 not quite sure what all of this was, but it was very u 13
1 mysterious as children because he was gone and we really
2 didn't know why, to our satisfaction at any rate. And
3 then he got a medical discharge, which would fit with my
4 mother's statement and wouldn't necessarily be different
5 than my father's, but this is still sort of a mystery.
6 So anyway, in 1942 we moved back to Minnesota.
7 MS. BRABBIT: So you went from South
8 Carolina then to Minnesota, and was your dad with you
9 then at that time after the discharge?
10 JUDGE MURPHY: Yes.
11 MS. BRABBIT: And when you came back to
12 Minnesota, Judge, where did you move to? C) 13 JUDGE MURPHY: Well, I think we must have 14 come back just before the summer, because mother and my
15 sister and I went out and lived with his parents on the
16 farm by Olivia for the summer, and he lived in St. Paul;
17 first looking for a place to practice, and then looking
18 for a house for us. So we moved back and would have
19 started the school year in, probably finished the school
20 year, now that I think about it, in the fourth grade in
21 the spring, and then started the fifth grade then in
22 St. Paul September of '42. In the meantime he joined the
23 Earl Clinic, which was a clinic, there were a couple of
24 Dr. Earls, actually three, and then there were
25 specialists of one type or another. My father was a 14
1 general practitioner, there was at least one other
2 general practitioner in the group, and they were down in
3 the Lowry Building, on the top floor of the Lowry
4 Building in St. Paul.
5 He rented a house for one year at 1153 Portland,
6 which was about a block and a half from St. Luke's
7 Church. At that time St. Luke's Grade School was
8 another, about five, six blocks from there. Subsequently
9 St. Luke's had a school right next to the church, so a
10 lot of people would think I was wrong about this, because
11 the school I went to was what is now William Mitchell Law
12 School. The main building there still looks in so many
13 respects just like when I went to the fifth through
14 eighth grades. So here is my first Catholic education,
15 other than going to Sunday school kind of thing in South
16 Carolina. There weren't many Catholics in Columbia in
17 those days, but I did go to some kind of instruction. I
18 have vague memories of that. So anyway, after a year,
19 after living in that house for a year, which I loved that
20 house
21 MS. BRABBIT: Now was this home in Olivia
22 or was this home in St. Paul on Portland?
23 JUDGE MURPHY: 1153 Portland. In Olivia we
24 lived on the farm, which was a lot of fun. I loved my
25 grandfather in particular, my father's father, and I 15
1 would go out and do the chores with him and he would
2 explain a lot of things. They had no indoor plumbing, no
3 central heat or anything. Of course, you didn't need it
4 in the summer.
5 I'm trying to think whether my Aunt Esther was
6 living at home then or if she had already moved. I think
7 she had. I think Aunt Rose was. Why these are
8 significant is that they both were lawyers.
9 MS. BRABBIT: Okay. Can you first tell us
10 your father's father's name?
11 JUDGE MURPHY: Yeah, I don't want to get
12 into Rose and Esther yet. 0 13 MS. BRABBIT: Okay. 14 JUDGE MURPHY: My mother's father's name
15 was John Heiker.
16 MS. BRABBIT: And how do you spell the last
17 name?
18 JUDGE MURPHY: H-E-I-K-E-R. And my
19 mother's mother was burned alive when mother was about
20 six years old. It was on Armistice Day after the war,
21 World War I. My mother would have been ten, though,
22 because I think she was born in 1908. I'm just thinking
23 about that, but it was always told to us that she was
24 older. And she was out raking leaves and then raking
25 them into a fire, and she had a long dress on, you know, 16
1 like they wore in those days, and it caught fire. And
2 she ran for the horse trough to throw herself in, you
3 know, but that just fanned the flames, and so she was
4 terribly burned and she died the next day. So my mother
5 always felt like an orphan, you know, as far as a mother
6 went. She worshipped her father. She had one brother
7 and one younger sister, but she had older sisters who
8 really raised her.
9 MS. BRABBIT: How many siblings did she
10 have?
11 JUDGE MURPHY: Let's see. She had five
12 sisters and one brother. One sister died shortly after 13 World War I. She had had a heart problem. And her (~) 14 husband -- that was Gertrude -- her husband died of the
15 flu, you know, that terrible flu epidemic. Okay. My
16 father's father, I don't know why I'm not thinking of his
17 name right now. Just ask me later.
18 MS. BRABBIT: Yes, I will. Your mother's
19 mom, her name was?
20 JUDGE MURPHY: I can't tell you right now.
21 I've probably got it somewhere. But, you know, I never
22 knew her. It was remote in time.
23 MS. BRABBIT: Do you have a memory of your
24 grandfather, John Heiker?
25 JUDGE MURPHY: Yes, very definite memory. u 17
1 At the time I knew him he was terribly afflicted with
2 Parkinson's disease. He was completely bent over and he
3 shook like this all the time, and then sometimes it would
4 get worse. You know, people don't do that now because
5 the medication prevents that terrible, terrible shaking.
6 It didn't affect his mind, though, and he was such a
7 wonderful person. He was inspirational. He was so good
8 and kind, and he had really raised my mother, too, and he
9 lived in a house in Faribault. We would go visit him,
10 and I loved visiting him. He died, though, probably when
11 I was, oh, I don't know, could have been under 12. It
12 was a great loss. As I say, his mind was so sharp and he
13 was so patient, and he would sit in this one place in the
14 window and I loved to talk with him.
15 MS. BRABBIT: Is he resting in Faribault?
16 JUDGE MURPHY: Yes. My mother, too. My
17 parents are buried in different places.
18 MS. BRABBIT: And your mom's name again,
19 Judge, is?
20 JUDGE MURPHY: Adelyne Heiker.
21 MS. BRABBIT: So let go back to when you
22 moved to Minnesota.
23 JUDGE MURPHY: Right.
24 MS. BRABBIT: Now you spent some time
25 living with your mom and your sister?
/ 18 () 1 JUDGE MURPHY: Charles.
2 MS. BRABBIT: Charles?
3 JUDGE MURPHY: Charles is my father's
4 father's name.
5 MS. BRABBIT: Okay.
6 JUDGE MURPHY: And I think it was Charles
7 Albert, but as I sit here I'm not positive.
8 MS. BRABBIT: Okay.
9 JUDGE MURPHY: And her name was Helene.
10 MS. BRABBIT: Your father's mother was
11 Helene?
12 JUDGE MURPHY: Right. And her last name
13 was Radtke, R-A-D-T-K-E, something like that.
14 MS. BRABBIT: It sounds like you had a
15 special relationship with your grandpa Charles.
16 JUDGE MURPHY: Yes.
17 MS. BRABBIT: Let's talk about that for a
18 moment.
19 JUDGE MURPHY: Well, I told you that he
20 would take me out on -- he was an amazing individual. He
21 never learned to read or write but he could perform any
22 mathematical calculation in his head, and he had three
23 banks. See, this is pretty amazing for a guy that never
24 had the schooling. They lost the banks in the
25 agriculture Depression, which hit here in the early '20s, 19
1 so the only thing that they had left was this one farm
2 that had been homesteaded, and they went out on that farm
3 and in order to live they dug up frozen potatoes.
4 This is a very important part of my life
5 because, while I wasn't there, it was a formative thing,
6 waiting for this disaster to strike tomorrow because
7 other circumstances had changed. But anyway, when he had
8 the banks he could do everything in his head, and it was
9 amazing.
10 For some reason, and whether it was because of
11 losing his money, my grandparents didn't get along at
12 all. As I say, I don't know the reason that they didn't 0 13 get along. I've asked my older cousins who lived in the 14 town of Olivia who might have had more opportunity to
15 observe and so on, and one of them suggested that she
16 thought it was because he had lost the money, but who
17 knows. Anyway, they lived quite separate lives, even
18 though they were on the same farm property. So he would,
19 most of his life was outdoorsi which wouldn't be so
20 unusual on the farm anyway, and he was older, of course,
21 so he didn't do the hard work in the fields. He took
22 care of the cattle and the other farm animals and the
23 milking and the eggs and did some other kinds of work
24 around, and so I would just go with him all the time and
25 he would tell me about the animals and about what was 20
1 required and the crops and so on. It was just, you know,
2 in those days farms were very diversified. They had all
3 kinds of animals, they planted all kinds of crops, and it
4 was all very interesting to me. A special time.
5 MS. BRABBIT: What was your favorite time
6 with him?
7 JUDGE MURPHY: Just talking to him really.
8 It was, you know, it was just this, the call that he
9 would use to call the pigs, for example, when he had the
10 food, and how they would come rushing and bump each other
11 out of the way and, oh, how the hens would not like at
12 all having their treasures taken away. The darkened hen
13 house, we would go in, and the smell that you would have,
14 and the milking, and then when they separated the milk,
15 put it in the big cans. It was all real fascinating.
16 MS. BRABBIT: What was your greatest life
17 lesson from your grandfather Charles?
18 JUDGE MURPHY: Well, he had a love of the
19 land, and certainly he was a hard worker; all the Kuskes
20 are very hard workers. He had a sense of family. I'll
21 tell you one thing that's relevant to what we're talking
22 about that was extremely painful for me. I've told you
23 how much I loved him. He planted one year, not at the
24 time I was living there in the summer, but we would go
25 out and stay every summer for a while and go out at other 0 21
1 times of the year for special dinners or something.
2 Anyway, he had planted some trees over beyond the barn.
3 He took me over to show me the trees and he said, I'm
4 going to leave those for Robert and Edward -- these were
5 my cousins, younger cousins -- he said, because they're
6 boys. And, of course, he wasn't able to leave anything
7 to anyone because his daughter Esther owned the title, I
8 didn't know that at the time, to the farm and had rescued
9 it, and them. But it was so painful because I thought I
10 had such a special relationship, and my cousins I like a
11 lot, but they were younger, and it was just painful for
12 reasons we all understand. 0 13 MS. BRABBIT: Judge, we were talking about 14 your relationship to your grandfather Charles, and you
15 were sharing with us a story about your grandfather
16 leaving a legacy.
17 JUDGE MURPHY: Yes. Well, it didn't seem
18 to me that whether you were a boy or girl should
19 determine -- or why boys would be preferred.
20 MS. BRABBIT: Did you have a conversation
21 with him at that time with him about it or
22 JUDGE MURPHY: Oh, no.
23 MS. BRABBIT: Okay. How about your
24 relationship to your father's mother, Anna?
25 JUDGE MURPHY: Well, she was, I didn't have 22
1 the same effusive love towards her, and part of it was
2 because she spoke so harshly to him, and usually through,
3 not directly to him even when he was there, you know,
4 present. But she was very kind to me and to her
5 children. I mean he was the only one that she wasn't
6 kind to, so that was hard for me. She was significant
7 for me, I guess, as far as genes. She was all bent over,
8 not like my maternal grandfather with Parkinson's
9 disease, she was all bent over with rheumatoid arthritis.
10 MS. BRABBIT: Tell us why that's
11 significant for you.
12 JUDGE MURPHY: Because I have rheumatoid 13 arthritis and very severely impacted by it over the (~) 14 years, although I'm not all bent over like she was. Now
15 she had never gone to school either, but one of her
16 daughters taught her to read using the Bible. So they
17 didn't go to church on Sundays when I was there, but
18 obviously they had religious beliefs, and I've been to
19 many funerals or even weddings in the little Methodist
20 church there in Olivia.
21 MS. BRABBIT: And how many children,
22 including your father, did your grandfather Charles and
23 your grandma Anna have?
24 JUDGE MURPHY: There were two daughters.
25 There was one boy that died that I never knew, died as a 0 23
1 child. The oldest living son was named Nat. He lived in
2 Olivia. Graduated from Hamline University and had a very
3 successful implement dealership.
4 The next was Lawrence, who went to Hamline
5 University and then law school, became a lawyer. After
6 he graduated from Hamline he went to Chicago, and he had
7 a job at a large department store there. He was a
8 floorwalker, which was a supervisor kind of person,
9 supervised the people on the floor, and went to night law
10 school. When he finished he worked for Chicago Title &
11 Trust until retiring. They called him back, he was quite
12 an expert in easements, and so he worked up until his 80s
(\ 13 on easements for pipelines and I don't know what all. '\__) 14 And then came Rose, I think, who studied while
15 she was a court reporter, and she read law in the judge's
16 chambers. Took the bar exam and got the highest mark in
17 the bar exam. These people are significant, you see,
18 you're beginning to see maybe why some of this stuff is
19 significant, I mean in a way that you might not be able
20 to figure out.
21 Then the next one was a boy named Louie, and he
22 never finished school. I don't think he even finished
23 high school. He played pool and drank, sort of the black
24 sheep, and he ended up farming on that land.
25 And then the next child was Esther, who went to 24
1 Hamline University. You notice how it's so fascinating
2 for me because the parents didn't go to school at all,
3 couldn't read or write, you know, and had this terrible
4 setback economically, but still these kids all went. She
5 went to Hamline University, and then she also -- Rose
6 followed her. Even though she was younger, Esther was
7 younger than Rose, she was a very determined type. Rose
8 was softer and more lovable. Esther, for whom I'm named,
9 finished college at Northwestern University and then
10 graduated from George Washington University School of
11 Law, then went to work for the United States. But before
12 she graduated from college she went to North Dakota and
13 taught school, and she sacrificed herself for the family
14 in so many ways. She bought the farm, she paid so my
15 father could go to medical school, because the Depression
16 was so bad when he went. It was after they had lost the
17 banks and everything. And he worked his way through
18 whi-l:e he was -at the University, too, but he couldn't have
19 done it without her, and that's why he insisted on naming
20 his first child. He wanted it to be the first name, but
21 my mother fought that.
22 And then the final child, the baby, was my
23 father, Albert Willard. And Brenda named one of her two
24 sons Willard, Willard Motomura.
25 MS. BRABBIT: You talked a little bit about 0 25
1 these two women, your two aunts, both lawyers. What kind
2 of an influence was this for you early in your life, and
3 then how did that change as you got older in terms of
4 your own professional path?
5 JUDGE MURPHY: Well, I can remember going
6 to the courthouse designed by Cass Gilbert.
7 MS. BRABBIT: And can you explain why that
8 is significant?
9 JUDGE MURPHY: Well, he built the Supreme
10 Court and many other wonderful buildings. But I can
11 remember going and sitting in the chambers, it was
12 wonderful, all those books and big high ceilings and dark 0 13 paneling, and Olivia was the county seat, but the fact 14 that they were lawyers or what they did really meant
15 nothing to me. Esther was, as I say, a very difficult
16 person. She lived out in the Washington area and was
17 very parsimonious but, you see, everybody, that is the
18 way I grew up because it was like you didn't know if you
19 were going to have anything to eat the next day. And she
20 worked defending claims against the United States. I
21 can't do a very good job of explaining exactly what
22 office she worked in or whatever, but it was hard in
23 those days to get a job as a woman lawyer, you know, to
24 get a good job, whether it was in the United States or
25 anywhere else. 26
1 While I was living in Minnesota, though, my aunt
2 Rose ran for judge. She got married rather late in life
3 to a farmer named McKeown in Buffalo Lake, he had a big
4 farm outside of Buffalo Lake. He had been trying to get
5 Rose to marry him for many, many years and she wouldn't
6 do it, but finally she did, and so then she moved from
7 the farm where I had lived with her to his farm, of
8 course, and as Rose McKeown she ran for probate judge,
9 and she didn't win. You know, in those days there were
10 almost no women on the bench, but the relatives all
11 thought there were enough people that remembered about
12 Charles [redacted] losing the banks and their money, you 13 know, because there wasn't the bank insurance like that 0 14 instituted under Roosevelt, so who knows.
15 MS. BRABBIT: At some point in time in your
16 life, did it become significant that your Aunt Esther and
17 your Aunt Rose were in the legal profession or were there
18 other factors that --
19 JUDGE MURPHY: Well, that isn't why I went
20 to law school, but it was not of no significance. And my
21 uncle, I was very fond of my Uncle Lawrence. Now he was
22 a fun guy. You would go to Chicago, he had four
23 children, a happy family life. He would take you -- my
24 father, all he did was work, and we never, once a year we
25 could pick what we wanted to do and he would do stuff u 27
1 with us for that one day, but otherwise he worked all the
2 time.
3 MS. BRABBIT: Only one day out of the year?
4 JUDGE MURPHY: Yes.
5 MS. BRABBIT: Okay.
6 JUDGE MURPHY: Occasionally we would go to
7 a ball game or he would play badminton or baseball, you
8 know, in the lot next door and stuff like that, but you
9 go see Uncle Lawrence and he would take you to the zoo
10 and you would go out and it was just such a happy home
11 life, you know, it was wonderful. So I knew he was a
12 lawyer but I didn't focus on that particularly, but I do 0 13 remember one thing that was important. 14 One day Esther was staying with us, I told you
15 she was a difficult person, and we were walking up
16 towards my high school. I don't know if she was walking
17 with me or whether we were, why we would have been going
18 up there, maybe she wanted to see where the high school
19 was, and she said to me, you know, if you make Phi Beta
20 Kappa -- I must have been getting near the end of high
21 school -- I'll give you a hundred dollars. And a hundred
22 dollars was of some significance in that time, but it was
23 all so foreign to me. I don't know that I even knew, I
24 knew that Phi Beta Kappa was some good thing, but I
25 hadn't been looking into college or anything else, 28 0 1 although my father always intended that I go to college.
2 But that made a significant impact on me at the time
3 because it was such a mark of confidence, you know.
4 Nobody at home would ever say anything like that but, you
5 know, it was sort of an incentive. And I didn't go to
6 college thinking, oh, I'm working for Phi Beta Kappa, but
7 when I made it she sent me the hundred dollars.
8 MS. BRABBIT: Did she?
9 JUDGE MURPHY: Yes, she did, and she
10 probably thought that I was aiming for it but I wasn't.
11 But it was a confidence builder. Do you see why you
12 might say somebody has some confidence in you? 13 MS. BRABBIT: Um-hum. Who else did that 0 14 for you as a child?
15 JUDGE MURPHY: Monsignor John J. Cullinan.
16 He was the pastor of St. Luke's Church, and he would come
17 to the grade school when it was time for report cards,
18 and these were nuns at the school, this was a strict,
19 strict, strict school. Boy, those nuns were good. We
20 had the best education in math and history and English.
21 I mean I was so far ahead by the time I went to Central
22 High School.
23 MS. BRABBIT: Now was this at St. Luke's?
24 JUDGE MURPHY: Yes.
25 MS. BRABBIT: Okay. And then just to 0 29
1 recap, Judge, were you at St. Luke's from fifth to eighth
2 grade?
3 JUDGE MURPHY: Yes, fifth through eighth.
4 Monsignor Cullinan would come and he would pass out the
5 report cards. And he was quite a fearsome character and
6 he would comment, you know, so people were afraid what he
7 might say and so on. One time he embarrassed me in front
8 of everybody, but he, you know, I had all As except I had
9 one C in physical, whatever they called it, phy ed, and
10 he said to the nun, you know, how can this be here, she's
11 so outstanding or so good or whatever. It was such an
12 affirmation, because I was always terrified what he might () 13 say because he dug into people, I remember that. And 14 then I remember one time we had IQ tests.
15 MS. BRABBIT: In school?
16 JUDGE MURPHY: Yes. And the nun told my
17 mother that she wouldn't say what my IQ was because it
18 was so high, which you wonder why you would say that
19 much, but that was confidence building.
20 MS. BRABBIT: Absolute confidence building.
21 And so do you remember that being a turning point in your
22 life?
23 JUDGE MURPHY: No, but I didn't really have
24 that much confidence. You know, by the time I got to the
25 fifth grade I had been moving all the time, so you lose 30
1 the people that you get to know and you build a
2 relationship and you have to start all over again. And
3 when I got to St. Luke's, all of these kids had been
4 going with each other, you know, from kindergarten. And
5 I had a very pronounced southern accent that everybody
6 made fun of and, I don't know, I didn't know that I was
7 smart.
8 MS. BRABBIT: Who helped you, before you
9 started your formal education, if anybody? In other
10 words, you've described your father taking note of your
11 reading the newspaper. Did somebody provide that
12 teaching to you or is this something that you picked up 13 on your own? C) 14 JUDGE MURPHY: You mean about the
15 newspaper?
16 MS. BRABBIT: Yes.
17 JUDGE MURPHY: Well, I would ask questions
18 about what this was or what that was. And how much I
19 could read, I don't know, but all I know is what I've
20 told you.
21 MS. BRABBIT: Yes.
22 JUDGE MURPHY: But I know I would ask
23 questions and he probably was annoyed in a way, but my
24 father always supported education. You'll see later,
25 though, we had a huge falling-out about what I would C> 31
1 major in or where I would go to school, we also had
2 problems about that, but he always supported education.
3 MS. BRABBIT: Did he ever talk about,
4 either with you or in your presence, the role of women
5 and what would be, quote, good for a young woman to do,
6 his expectations?
7 JUDGE MURPHY: Well, although he expected
8 that I would get a college education, he also was, you
9 know, all the relatives were always, well, who are your
10 boyfriends, you know, and my father every now and then
11 would express, you know, I remember coming home from a
12 date once when I can't remember if I was near the end
13 of high school or it was early in college -- I had had a
14 really nice time and I told him and he said, well, it's
15 just a ship passing in the night. I remember that
16 particular thing. He wasn't too bad on it, though, but
17 the relatives were. And I remember Nat's wife saying,
18 aren't you going to talk to Diana about marriage.
19 (End of session.)
20
21
22
23
24
25 32
1 (February 28, 2006.)
2 MS. BRABBIT: Judge Murphy, we have
3 returned again for the second taping of your oral
4 history. Thank you for visiting with me on February 6.
5 Today's date is February 28th. We spent some time during
6 the first taping talking about your family, and if you're
7 so inclined I would like to pick up where we left off.
8 We were talking a little bit about your dad, but we
9 didn't have a chance during that taping to really
10 introduce your mother, and so what I would like to do is
11 sort of begin with her. Can you tell us about your mom
12 and some of the important things you remember about her
13 and how she impacted your life?
14 JUDGE MURPHY: I think I gave you my
15 mother's name, and she grew up in Faribault, Minnesota,
16 and she went to a private school there called the
17 Bethlehem Academy. It was a Catholic school. They had
18 both day pupils and boarding pupils, and it is only a few
19 years ago that I learned that she had been expelled near
20 the end of her time there. I found it out from her
21 younger sister. My mother talked about this Bethlehem
22 Academy quite a bit, so it was quite a shock to learn
23 that. The reason was that the nuns there would not let
24 the girls who were the boarders send mail that wasn't
25 read by the nuns. These are -- you look surprised -- C) 33
1 these are olden days. Maybe wanting to prevent people
2 from running off and eloping or who knows what.
3 So my mother, who was always quite a free
4 spirit, carried away mail for some of these girls and
5 mailed it. The nuns apparently looked at the letters
6 that came back before they were given to the girls and
7 they figured out that somebody had broken the rules -- I
8 don't know how they found out my mother had and that
9 was why she had gotten expelled. As I say, it was quite
10 a shock because she spoke about the place quite fondly,
11 you know. But she was a very spirited woman. None of
12 her siblings had college educations.
13 MS. BRABBIT: Tell us who her siblings are.
14 JUDGE MURPHY: Well, her oldest sister
15 married a farmer near Owatonna, very prosperous farmer,
16 but she lived a hard life. It was hard being on a farm
17 in those days, and it didn't turn out to be a very happy
18 marriage. There were lots of children. I think it was a
19 hard life. But to show you what my mother was like, how
20 generous, when she had a mastectomy and apparently had
21 Hodgkin's disease, too, she came after the surgery to our
22 house and my mother took care of her. In those days it
23 was a lot longer period of recovery.
24 And then the next sister went to secretarial
25 school, I think, and got into the business field, you 34
n'·---' 1 know, as a secretary, but very capable, and she met her
2 husband in connection with that. That was a very happy
3 marriage, and they ended up in Texas. Her husband
4 already had a son, his first wife had died, and so she
5 raised that son like hers.
6 Then the next sister was a beautician, and she
7 got married and she lived in Iowa, and they had a son.
8 Both of those cousins were good friends of mine as I was
9 growing up.
10 Then the next sister died of, she had an
11 enlarged heart, and her husband died of that Spanish flu
12 right after the war and then she died, of a broken heart
13 perhaps, and that was my mother's favorite sister. I
14 mentioned that my mother had, her mother had died in that
15 fire, as a result of that fire, so the sisters sort of
16 brought her up, and the one that died was very close to
17 her.
18 Then the next sibling was the only son, and he
19 went into the Army and served abroad, you know, before
20 the war and maybe continued on. He must have been at
21 least in Hawaii during part of the war. I remember he
22 was bringing little trinkets back and so on. And after
23 he got out of the service he taught ROTC at a Christian
24 Brothers school in Missouri.
25 Then came my mother, and then came the youngest 0 35
1 sister, who was the one that told me about what happened
2 at Bethlehem Academy. She worked in a women's dress shop
3 in Faribault, but she lived at home with the father who I
4 told you, that grandfather had the most awful palsy, he
5 was bent over, as I told you. She lived with him until
6 she got married and had a very large family, the largest
7 family of all those siblings.
8 My mother went to nurse's training at Anker
9 Hospital. It no longer exists, but it would be, I
10 suppose it's Regions Hospital that has the emergency room
11 that would have the similar kind of training perhaps now.
12 I don't know. 0 13 MS. BRABBIT: Was this in St. Paul, Judge? 14 Anker Hospital, St. Paul, Minnesota?
15 JUDGE MURPHY: Yes.
16 MS. BRABBIT: And this was following high
17 school?
18 JUDGE MURPHY: Yes. And my mother must
19 have gotten her degree somehow even though she got kicked
20 out, because she did get into this nursing program and
21 she became very successful as a nurse. She worked in
22 various hospitals and became a surgical nurse. After
23 working in the Twin Cities she did go out and work in
24 Graceville, Minnesota. I think that was as a surgical
25 nurse. That's way out, it was very, very distressed, 36 0 1 that area, during this Depression period. And then when
2 she got married she stopped working. But there was one
3 time when she went back to work, and that was when I was
4 in the fifth grade. My Aunt Bernice, the youngest
5 daughter, her husband was in the Navy and he was in the
6 South Pacific, and so she came to live with us at 1153
7 Portland. That was the first house we lived in, the
8 rented one. I told you I loved that house. It was so
9 painful that my dad didn't buy that one.
10 My mother went back to work, she was able to go
11 back to work then, and there was a big demand for nurses
12 during the war, and she went over to the University of 13 Minnesota on the St. Paul campus, they had a health 0 14 center there, and she flourished. She was a very capable
15 woman. My favorite picture of her is in her nurse's
16 uniform, and to be a registered nurse was a very proud
17 thing as opposed to practical nurses and so on. In those
18 days they had the best-looking uniforms. You see, I've
19 got this high collar, you know, but they had really high
20 collars and it was all starched, and then those starched
21 hats and, boy, did she look like a million bucks. She
22 was a very beautiful woman. Then when Bernice left, I'm
23 trying to think if her husband came back or she had a
24 child of her own and maybe at that point moved out, I
25 can't recall exactly, but anyway mother had to quit work. 0 37
1 She still was very involved in things, I mean,
2 up through my years in college, because she was, the
3 sorority I was in had a mother's club and she was head of
4 that, and was active in the Newman Club, which existed at
5 that time at the University of Minnesota and built a very
6 nice building.
7 MS. BRABBIT: Newman Club?
8 JUDGE MURPHY: Newman Center. But in
9 fairly recent years, maybe ten years ago, it had become
10 quite an ultraliberal bastion, maybe bordering on -- I
11 don't know, but the Archdiocese closed it down, and the
12 Newman Club was sort of transferred over to the Paulist 0 13 Church of St. Lawrence, which is near the campus. They 14 sold that building to somebody else. But it was a
15 beautiful building, had a wonderful chapel and
16 everything. My mother was president of that, whatever
17 they called it, and she was very involved in all those
18 things. Once I finished college, then I went to Germany
19 for the year. When I got back she had changed, and so I
20 don't know -- she eventually died of a massive stroke --
21 whether she had some small strokes, but a lot of it was,
22 you know, there really wasn't much left for her, somebody
23 who had achieved a lot in her field. We could talk about
24 that at some other time.
25 MS. BRABBIT: I would like to ask you more 38 0 1 about --
2 JUDGE MURPHY: She had been in charge of
3 all the bake sales and stuff at church. I mean she
4 obviously had organizational ability and got along with
5 people and so on, and she became sort of a hermit, and it
6 was very sad, you know.
7 MS. BRABBIT: -Tell us more about your
8 relationship with your mom growing up. What were her
9 idiosyncrasies, what were her strengths, what core values
10 do you feel she instilled in you?
11 JUDGE MURPHY: One thing, she encouraged me
12 in drawing, and I mentioned that I had that year of 13 lessons down at St. Agatha Conservatory. But when I 0 14 would go out in the yard and drew charcoal drawings of
15 the trees and stuff she would compliment them, and if I
16 wasn't finishing something she would give me a lecture
17 about how you have to finish things you start in life.
18 Sometimes that was a little hard to take because I don't
19 think you have to finish everything you ever start, it's
20 a mistake, but that was part of what she taught.
21 One time when we were driving down to visit the
22 family, her family, I pointed at some horses that were
23 standing in the field and she said, you know, your
24 grandfather was like you. He could see beauty in very
25 simple things. That was reaffirming. () 39
1 She was a wonderful seamstress and she made all
2 of our clothes, which was sometimes embarrassing because
3 they weren't what I thought was appropriate to wear. But
4 she would, you know, she could make things up, she didn't
5 have to have a pattern, and she was very stylish herself
6 until her later years. She was the one that I could go
7 to if I was afraid to tell my father something. He was
8 much more of a strict disciplinarian. And I told you he
9 wanted -- of course, I would go to the University. The
10 assumption that I would go to college was a very good
11 one. I don't know if we got into the business about the
12 nursing school and how I got out of having to go to that. C) 13 MS. BRABBIT: Not yet. 14 JUDGE MURPHY: Okay. We'll talk about that
15 later. But when there were certain crises, my mother
16 supported me because my father -- my father was very
17 strong, hard to buck. She had a wonderful sense of
18 humor. It was a devilish sense of humor though. I
19 remember one time when I had a friend over from high
20 school, my mother was always interested in my friends and
21 would just sort of stay there and talk, but she was fun
22 so people didn't mind it too much. But she said, you
23 know, she was talking about being a nurse and how it
24 inured you to things, and she said -- this was directed
25 at me -- "I could stand to see you being cut into 40
1 pieces." That was so painful, and probably still would
2 be if I thought about it too much. Anyway, I don't think
3 she meant it literally, but that was more of an extreme
4 sense of her humor perhaps. But both of my parents were
5 very capable and hardworking.
6 MS. BRABBIT: Did you and your mom ever
7 talk about the role of women or what it was like to grow
8 up as a woman, or the challenges, any challenges of
9 gender?
10 JUDGE MURPHY: Not so much. There were the
11 things about how nurses really saved the doctors and
12 didn't get rewarded or recognized for it, so I mean 13 that -- you know, in those days people didn't talk about C) 14 these things the way you do later, but there definitely
15 was that. And my father was very tightfisted, it was
16 because of that experience of the Depression that I
17 talked to you about, and he was always expecting it to be
18 around the corner, and I still feel that way, you know,
19 because I absorbed all those stories. Anyway, she had
20 very little. If she wanted something, she would have to
21 ask my father, and so she encouraged me to be more
22 independent. When I went on my honeymoon, she gave me
23 some money she didn't have much money, she would save
24 away in case I wanted something. Who knew what this
25 husband was going to be like. So there was that kind of 0 41
1 thing, too, without really talking about these women's
2 issues. But conversely, when I wanted to go to law
3 school, she opposed it. I don't know if we talked about
4 that. My father was very much for it but she was afraid
5 that it would lead to a divorce, and she was so devoted
6 to her grandchildren, the two grandchildren, and didn't
7 want to lose them, you know. So that would be sort of
8 the other way.
9 MS. BRABBIT: Tell us more about your
10 relationship between your mom and your dad.
11 JUDGE MURPHY: Well, I would have to say it
12 was difficult. When my mother died, my sister and I 0 13 divvied up things we wanted. She was very interested in 14 hand painted china, and she had some jewelry, it wasn't
15 valuable jewelry, but some of it was quite striking. So
16 we sort of divided up things, like we would each take
17 turns having first choice. She had some beautiful china,
18 my sister ended up with all of that, and silverware. But
19 she had a photo album that was started when she was
20 young, in Faribault it would have been, some maybe even
21 when she was still in high school, and near the end of
22 the book are the pictures of my dad and stuff, too. But
23 the pictures are just wonderful. You could just see she
24 was so stylish and free-spirited. You could see by the
25 pictures, you know, and her sister always said how she 42
1 was the life of the party. But I didn't see much of
2 that. When they were in the Army, she liked that,
3 because it was quite a social life. If you were the wife
4 of an officer, there was a lot of social life. So I
5 would say when my dad got ill and then left the service
6 and we came up here, except for when she went to work,
7 she was happy about that, but they used to -- you know,
8 it's hard for me to remember. They used to go dancing
9 and stuff, so I don't know when the less joyous times
10 started exactly.
11 MS. BRABBIT: Did your dad survive your
12 mother?
13 JUDGE MURPHY: Yes.
14 MS. BRABBIT: When did your mother pass
15 away, Judge?
16 JUDGE MURPHY: Sh~ died in 1976, July of
17 1976. I was appointed a judge in May of '76. That year,
18 before I left th& law firm, I had done one of the most
19 freeing things, maybe the most. I went and bought a car
20 all by myself, and it was sort of a bright red/orange
21 Camaro. And that year's Camara, it was sort of a
22 fancy-model Camara, and that year it was very low-lying,
23 it was really snazzy looking, and my mother loved seeing
24 me drive up in that car. Then when I,became a judge she
25 would say, "Here comes the judge," she was so excited. 43
1 See, she didn't live much beyond when I became a judge.
2 She wasn't well enough to go to the swearing-in. But she
3 enjoyed that so much. So even though she hadn't wanted
4 me to go to law school, she was really thrilled about
5 that.
6 MS. BRABBIT: I'm sure she was very proud
7 of you, yes. Let's circle back and talk a little bit
8 about your sister, Brenda. We spoke last time about, you
9 know, some of your early memories of her.
10 JUDGE MURPHY: She was real cute, I do
11 remember that.
12 MS. BRABBIT: We'll make sure we have that. 0 13 Even though she gave you a permanent scar, she was still 14 cute.
15 JUDGE MURPHY: Very lively.
16 MS. BRABBIT: Because you and your mom and
17 your sister spent a lot of time together while your dad
18 was away.
19 JUDGE MURPHY: Yes. But, you know, I was
20 out and about going to school or playing Grown Girls with
21 this neighbor, so I didn't spend -- you know, there's
22 quite an age difference, plus because of being ahead of
23 myself in school, she just was like a baby, you know.
24 She wasn't that much older at that time. When I was up
25 in Minnesota, I loved going to the movies. You could go 44
1 to the movies, there were two streetcar lines that ran
2 near our house. One was the Grand Avenue line that was
3 only two blocks away, and the other was the Selby-Lake
4 line that was four blocks away. The Selby line ran more
5 frequently. There were two ways you could get downtown,
6 and so I loved taking that down to that main library down
7 on Rice Park, and I mentioned going down to the
8 Conservatory for the art lessons, but also going to the
9 movies. At that time there were two big theaters on West
10 Seventh, right across the street from each other. One
11 was the Orpheum, and the other one I think was called the
12 Paramount, which is quite likely. And it cost 12 cents
13 to go to the movies, plus the token, which I think was 10
14 cents. I don't recall for sure, but it was pretty cheap
15 to go.
16 MS. BRABBIT: To ride the streetcar?
17 JUDGE MURPHY: Yes, but pretty cheap to go
18 to the movie, too. And so I had friends that I would go
19 with sometimes, I think I may even have gone by myself
20 sometimes. I was a movie nut, just like I am now. But
21 my mother would always want me to take Brenda along, and
22 it was just humiliating because, you know, fifth graders
23 or sixth graders or seventh graders, depending upon what
24 year it was, don't want the little kid sister to go. But
25 she would put her foot down and I would have to take her. () 45
1 The funny thing is the way Brenda remembers this is that
2 I forced mother to make her go with me. And maybe she
3 didn't want to go. I mean that's possible, too, that
4 mother just thought she wanted to get Brenda out of the
5 house or something. I don't know. It's funny, and I
6 haven't said to Brenda, well, I didn't want you there.
7 MS. BRABBIT: That is funny. So remind me
8 again, Judge, there is almost four years between --
9 JUDGE MURPHY: Four and three-fourths.
10 MS. BRABBIT: That's right, almost five
11 years between the two of you.
12 JUDGE MURPHY: But there were like six 0 13 years, I think, in school, six or seven, I can't remember 14 which, so that makes a huge difference.
15 MS. BRABBIT: That's right. And you also
16 mentioned that your mom went back to work when you were
17 in the fifth grade, is that right?
18 JUDGE MURPHY: Right.
19 MS. BRABBIT: And the fifth grade, you
20 would have been at St. Luke's?
21 JUDGE MURPHY: Yes.
22 MS. BRABBIT: Okay. You and I once had a
23 casual conversation, you had mentioned to me, you were
24 telling me about your experience at St. Luke's, and in
25 particular I want to bring you back to a story you once 46 0 1 told me about an art contest, and I'm wondering if you
2 would be willing to share that with us.
3 JUDGE MURPHY: I have to tell you again,
4 huh?
5 MS. BRABBIT: If you would like.
6 JUDGE MURPHY: Well, the sisters encouraged
7 artwork, and they had their classrooms -- you never left
8 your classroom. If there was another teacher, like a
9 music teacher, they would come to the classroom. So each
10 nun had her room, and they would have them decorated with
11 artwork of all kinds, which might be tacked up on the
12 bulletin boards or on the frames around the blackboards 13 and so on. But they would also have what they thought 0 14 were the better artists draw things on the blackboard
15 that would stay for some time, or make friezes. I can
16 remember friezes going all the way around the room on a
17 particular feast day or some other kind of theme. And
18 there was a girl named Ellen Upgren, who was a very good
19 artist I thought, and not at all uptight about drawing,
20 you know. She would just go up and do whatever it was,
21 and she was always asked to be doing this. Much to my
22 surprise, I got summoned to be doing it, too.
23 Then there came a time when there was a
24 city-wide competition among the Catholic schools, and
25 St. Paul, being quite a Catholic city even now, but 0 47
1 certainly then, there were a lot of Catholic schools, on
2 the theme of, I don't know if it was United Nations
3 Children's Day, but it was some kind of a theme like
4 that, and these were very large posters you were supposed
5 to make, and you were supposed to come up with your own
6 concept but related to the theme. And so both Ellen and
7 I were invited to participate in this. And Ellen came up
8 with a very attractive -- they had this size that your
9 poster should be, I don't remember the exact
10 measurements, but I had mine with the longer side up,
11 more of a vertical one, and she had hers the other way.
12 And on it she just left the white background on the 0 13 poster board and then she painted a lot of different 14 children scattered on this background that were in sort
15 of native costumes, like there was an Eskimo, there was
16 probably a little Dutch girl, probably a Japanese kimono
17 or something, you know. I don't recall exactly, but you
18 knew looking at it what it was, and it was very
19 attractive. And I came up, after trying to think of what
20 to do, with a painting that had Christ standing on top of
21 the world. You only saw the top of the globe, but you
22 could see some parts of the land masses, and he was
23 standing on top of the globe and on either side was a
24 child, one was a girl and one was a boy, and he had his
25 arms around their shoulders. And then I had lettered on 48
1 this, probably at the top but I can't recall, because
2 there was just sort of the sky behind the figures, "Let
3 the little children come unto me," a well-known verse.
4 So on the given day when the winner was going to be
5 announced, and there were other things that were going to
6 happen at this program. It was held in the St. Paul
7 Auditorium, downtown St. Paul. It was the largest, you
8 know, public place for gathering, so it was a big deal,
9 all these grade school kids sitting there filling the
10 place up.
11 They announced the winner of the poster contest,
12 and to my amazement they announced that the winner of the
13·poster contest was "Let the little children come unto
14 me." And I thought, my gosh, you know, I won. And while
15 I'm thinking that, the nun turned to Ellen and said, "Go
16 up and get your prize." And I was just flabbergasted
17 because I thought it was pretty clear, I mean hers didn't
18 have that slogan on it. I thought it was pretty clear
19 that mine had won but I didn't know what to do, and I was
20 stunned and I did nothing. Then or ever after.
21 MS. BRABBIT: What advice would you have
22 for young women, or women who find themselves in similar
23 situations?
24 JUDGE MURPHY: Well, you know, those things
25 happen very quickly. I mean Ellen jumped right up and () 49
1 went up. I mean it would have been an awkward scene if I
2 had said, 11 Sister, it's mine. 11
3 So I mean it's always better, if something is
4 misunderstood, to try to correct it right at the moment,
5 but I think under those circumstances it would be pretty
6 hard to do anything. But, you know, I should have gone
7 and talked to the nun afterwards, but she was a
8 formidable nun, I was terrified of her. But you have to
9 stand up for yourself, and I think that's a lesson we all
10 learn one way or another.
11 MS. BRABBIT: Also I would like to ask you
12 about your poster, because your poster had a Christian 0 13 theme. Can you tell us about what, if any, impact 14 St. Luke's, as a Catholic school, had on you at the time
15 and anything for your future?
16 JUDGE MURPHY: Well, you know, you had a
17 lot of religion classes, of course, in a Catholic school
18 in those days, and you learned a lot about church
19 history. But maybe more important than what I learned in
20 school was I love to read, and I would take the streetcar
21 downtown to the public library and get books, but I lived
22 only a block, especially at that first house, only a
23 block from the church. The church had a library in the
24 basement and it had some wonderful books in it, but as
25 you might imagine, it was largely filled with lives of 50
1 the saints. And so I read innumerable lives of the
2 saints and, without knowing it, really understood
3 completely the science of hagiography. Some of these
4 stories were quite inspiring, and people that did
5 wonderful things and courageous things and things for
6 others so, you know, you get inspired to want to do
7 things like that. I mean I never liked the real hokey
8 stories, but there are a lot of wonderful histories.
9 And this is off the point, but there was a book
10 there called "The Rails Push West." It was a great, big,
11 thick book, and it sounded kind of boring, but I had run
12 through almost all the books there, and I took that book
13 home, and it was so big. It probably was given by the
14 James J. Hill family or something. It was the most
15 fascinating book. Those other books inspired an interest
16 in history, but certainly that book did, because it told
17 about the whole development of the railroads west, how
18 they met from the West Coast, the Chinese coolies corning
19 and how that affected the work, the towns that developed
20 along the railroads, and the other corning from the East,
21 and all the industry and so on that was affected by it.
22 I mean that was a wonderful thing. I'm a little kid, you
23 know, I was eight years old when I was in the fifth
24 grade, and so these were good things.
25 Anyway, a lot of that remains with me, I mean 0 51
1 the cultural aspects of the church, and also the good
2 that the church has inspired. I mean, like other
3 institutions, there are other things, too, and you have
4 to decide in your life whether you want to take advantage
5 of the g6od and noble parts, or you want to just throw it
6 all overboard. So I would say that I developed quite an
7 ideal of the way a person should be; good, kind, loving,
8 helping others. I mean, you know, it's very hard to live
9 up to some of the ideals. So it had a big influence that
10 way.
11 As far as my sister, I feel guilty now because
12 we played a lot of things together, you know, badminton 0 13 and ball and all kinds of things, so I shouldn't just 14 mention having to take her to the movies.
15 MS. BRABBIT: Speaking of badminton and
16 ball and movies and reading, what other things did you
17 really enjoy doing as a kid?
18 JUDGE MURPHY: I developed a passion for
19 baseball, and at that time the St. Paul Saints were a
20 Triple A team; they were the farm club of the Brooklyn
21 Dodgers. And there was a ballpark called Lexington Park,
22 it was more than a mile away, but it was physically
23 possible to walk there. And I got hooked on it by
24 listening to the radio. At that time my parents were
25 still going out a lot at night, dancing and to movies or 52 0 1 to the theater, and I would be afraid being there home
2 alone with just this little sister, and I started
3 listening to the radio and there would be nothing on it
4 but these ball games. Well, I really got hooked on them,
5 and I wanted in the worst way to go to the ball game.
6 And this shows what a good egg my mother was, because my
7 mother had absolutely no interest in this, and I couldn't
8 get my father to go, and I wanted to go in the worst way,
9 and my mother went with me to the first game I was able
10 to go. That was very exciting. I had forgotten about
11 that. So I loved that. I followed it, I learned how to
12 keep score, got an official scorebook and kept score if I 13 was at the game, or if I was listening to it on the 0 14 radio, and I learned a lot about the game, read The
15 Sporting News and all. And the movies, I told you about
16 the passion, and the art. And I liked to play cards with
17 friends, we played all kinds of card games and Parcheesi
18 and all kinds of-things, the competitive urge, I think, I
19 don't know. I gave up cards a long time ago.
20 I mentioned, oh, we played croquet a lot and we
21 played badminton. I went skating, I loved to roller
22 skate, I loved riding my bike, went ice skating a lot, I
23 liked that, too. I would ride my bike. You know, they
24 had these big, heavy tires in those days so it was much
25 harder, you had to use a lot more energy to move forward, 53
1 and I would ride my bike out to Como Park, taking a
2 lunch, and then you could go to the zoo and they have a
3 floral conservatory, that was a favorite trip, but it's a
4 long way and you had to ride yourself back, too.
5 MS. BRABBIT: And you were coming from
6 Portland?
7 JUDGE MURPHY: Yes. And I also would go
8 down by the Mississippi River, down by where the Ford
9 Bridge is, that's even longer. That's a long bike ride
10 on these old bikes. Let's see, what else did I like
11 doing. I took golf and tennis lessons. I was never very
12 good. 0 13 MS. BRABBIT: How about organized sports 14 for women? When you say golf and tennis, were these
15 co-ed, were they girls' teams?
16 JUDGE MURPHY: There weren't girls' teams.
17 MS. BRABBIT: So when you engaged in these
18 activities, it was for your own --
19 JUDGE MURPHY: People don't realize what a
20 difference that Title IX has made, requiring people to
21 set up girls' programs. Well, at school, phy ed was
22 separated, the girls and the boys, and so sometimes you
23 had to play ball, basketball or softball, and they would
24 pick teams and stuff, and I certainly never was among the
25 first chosen because I wasn't that good, but that's the 54
1 extent of it, you know, as far as team Sports.
2 MS. BRABBIT: Judge, you've mentioned a
3 number of hobbies and things you liked to do as a child.
4 Did your father participate with you? Was he encouraging
5 in some of these activities?
6 JUDGE MURPHY: Well, you know, he always
7 encouraged me to do well in school. He loved to play
8 softball, and we would play softball. He liked to play
9 badminton. He was very competitive. He always played to
10 win. Even when we were little and we would play
11 checkers, he would get such a kick out of beating us.
12 What I wanted to say about my dad at this point is I've
13 talked about how he was a strict disciplinarian, and I
14 don't know if I talked about how he worked all the time,
15 because he was the kind of doctor that made house calls,
16 and my memory is of him getting up every night and making
17 one or two house calls. But he also got rental property,
18 and he maintained those buildings himself, he had several
19 properties, so he did all this physical work. I mean
20 this is changing screens and storm windows and painting
21 and mowing the lawns and, not only our house but these
22 other properties, seeing patients during the day, going
23 and, I mean, you know, really hard work and saving money.
24 So he might seem like a very forbidding figure, and he
25 seemed that way to me in some ways when I was growing up. 55
1 And as he grew older, especially after my mother died in
2 1976 -- he lived until 1995 -- and he had, I just
3 treasure the years that I had as he first retired and
4 then he flunked retirement and did some other kinds of
5 work and then went back to work as a doctor, and had
6 never really appreciated how much he enjoyed helping
7 people as a doctor. But he had more time than he had
8 when I was growing up, and he came to reflect on how he
9 wished he had done some things differently in his
10 marriage, and how wonderful mother had been. He did get
11 married again and that can lead to thoughts of that sort.
12 I just had a wonderful relationship with him. I
13 was blessed that he lived as long as he did, because he
14 had always been a caring person but he didn't show it.
15 He was so caring and loving and considerate and
16 life-enhancing. I just -- you know, different parts of
17 you can be at the forefront at different times of your
18 life, I think.
19 MS. BRABBIT: Anything else you would like
20 to share about your dad or your mother? And I know
21 they'll come up later as well, but specifically as you're
22 growing up? Because, of course, they were instrumental
23 throughout your entire life.
24 JUDGE MURPHY: They will come up again.
25 MS. BRABBIT: Yes, they will. So can we 56
1 return to school? Are you ok9 y with that, if we come 2 back to St. Luke's and go from there, Judge?
3 JUDGE MURPHY: Sure. They were wonderful
4 parents.
5 MS. BRABBIT: I know they were, because we
6 know you, and we know how this works, and so you are a
7 living testament to their wonderful nature, so thanks for
8 sharing that about them.
9 So you went to St. Luke's through the· eighth
10 grade, is that right?
11 JUDGE MURPHY: Yes.
12 MS. BRABBIT: And then you had a 13 transition. c--) ,_, 14 JUDGE MURPHY: Yes.
15 MS. BRABBIT: Tell us about that transition
16 in your education.
17 JUDGE MURPHY: Well, I went from a school
18 where you sort of knew who everybody was to a very large
19 high school, 2,000 kids. And I understand this better
20 now than I did then, but there was one other person from
21 St. Luke's that went to that high school, so all of a
22 sudden -- of course, when I started at St. Luke's I
23 didn't know anybody, but it was a smaller, little
24 universe. But all of a sudden I went over to Central,
25 there was one person that I knew there, and the part that () 57
1 I appreciate more now is that there were a number of
2 feeder schools to Central because it was all
3 geographically done. And it doesn't have meaning if you
4 don't know St. Paul, but there's a wealthy part of
5 St. Paul called, relatively wealthy, called Highland Park
6 that for a long time now has had its own high school, but
7 at that time it didn't. So that group went to Central,
8 too. So there were a lot of feeder schools, I don't know
9 how many exactly, but their whole class went off to
10 Central.
11 And so everybody knew each other, or they knew a
12 lot of people, and so it was pretty lonely at the () 13 beginning. And I was younger, this is a tough age to be 14 younger, and my father forbade me to wear lipstick, he
15 thought I was too young to wear lipstick. Well, there
16 was no way I was going to show up at school without
17 lipstick, so I would leave and put it on before I got to
18 school. I had had my hair in long braids, and at some
19 point, probably in the eighth grade, I mean I was
20 embarrassed to have these long braids, nobody else had
21 these long braids, and it was just humiliating. My
22 mother took me to get my haircut and get a permanent and,
23 of course, I must say that did look awful, and when my
24 father saw that he was just furious. Anyway, back to the
25 lipstick part. I certainly wasn't going to show up at 58
( ) ~. ~ ' 1 high school with those braids, you know, these were long
2 braids down my back. One day I forgot to take the
3 lipstick off, and my father blew up and said I looked
4 like something -- I won't repeat what he said but it was
5 very uncomplimentary. Oh, he was mad.
6 MS. BRABBIT: Now you mentioned that only
7 you and another student went to Central from St. Luke's.
8 JUDGE MURPHY: Yes.
9 MS. BRABBIT: So why such a small number?
10 Where did some of the other students go?
11 JUDGE MURPHY: They all went to the
12 Catholic schools. I think we already talked about that 13 perhaps. Maybe not on the tape. (=) 14 MS. BRABBIT: Yes, we have had that
15 conversation. Did you want to offer some of that, about
16 the decision-making process for high school?
17 JUDGE MURPHY: Well, everybody at
18 St. Luke's grade school was going to go to Catholic high
19 school, but there were a lot of Catholic high schools in
20 those days in St. Paul, so there were quite a few choices
21 and they were divided by gender; however, for girls there
22 were three. There was Visitation Convent, run by a
23 cloistered order of nuns, and rather a school known for
24 educating wealthy girls, and there was St. Joseph's
25 Academy that was run by the same order of nuns that did 59
1 the grade school, and Derham Hall, which also was run by
2 the same order of nuns, but it was on the campus of the
3 College of St. Catherine's, which is a very pretty campus
4 with some rolling hills and a very pretty chapel and so
5 on. I took the entrance exam for St. Joseph's Academy
6 and Derham Hall, and I very much wanted to go to Derham
7 Hall, but my dad was not Catholic and he figured that was
8 enough Catholic education -- I had had five through
9 eight -- time to go to public school. He was adamant on
10 it. One thing, you didn't have to pay for public school,
11 I think that was a factor in his thinking, as well as he
12 had permitted this Catholic education up to then. 0 13 I did tell you earlier, it was sort of humorous, 14 the nuns actually went and visited my parents at my
15 house -- I didn't know about it at the time -- because
16 they were so concerned, and they said, you know, a lot of
17 girls that go to Central get pregnant. I suppose my dad
18 was thinking, well, she won't have lipstick on, it won't
19 happen. No, I'm teasing, I'm just having fun.
20 MS. BRABBIT: Oh, that's funny. Tell us
21 about your integration into this new culture at Central.
22 How did you get involved?
23 JUDGE MURPHY: Well, I wouldn't say that I
24 was ever satisfactorily integrated from my point of view,
25 but I did get involved in a lot of things. For some 60
1 reason, the first one that comes to mind is the Latin
2 Club, I don't know why. I was an officer in that. There
3 were a lot of things that I got involved in. I'm having
4 trouble thinking about some of them, because what's
5 sticking out in my mind is the newspaper.
6 MS. BRABBIT: Was that the school
7 newspaper, Judge?
8 JUDGE MURPHY: Yes, it had an award-winning
9 newspaper, Central High Times, and I had a friend who was
10 interested in journalism and was going to be the
11 editor-in-chief, but maybe she didn't know that yet. She
12 wanted to get me to work on the paper, but in order to be
13 on the paper, or to be an editor of the paper, you had to
14 take journalism, which was a whole-year course, and I had
15 a bunch of requirements that I had to take. My dad
16 insisted that I take science every year in high school,
17 and I had some requirements I had to take, so I couldn't
18 take journalism unless I went to summer school. And so I
19 took, there was a social studies requirement, and I went
20 to summer school to take that, which was interesting in
21 and of itself because it was quite a varied body in
22 summer school because there were a lot of kids that were
23 flunking. It was in a school that was in a very bad
24 neighborhood at that time called Mechanic Arts, it's long
25 since bit the dust, and so it was a very interesting 0 61
1 experience. I'm drifting off here now.
2 Anyway, I took journalism then. Is it possible
3 I took it at the same time I was an editor? I think that
4 may be. Yeah, because I went to summer school between
5 it doesn't matter for the purposes of this story, but
6 anyway, I had never worked on the paper. My friend was
7 going to be editor-in-chief of the paper. The paper was
8 a very large size, big in dimension, and it only had four
9 pages. So in addition to the editor-in-chief, there was
10 a feature editor who was responsible for the second page,
11 and a sports editor who was responsible for the sports
12 page, and then the editor-in-chief is responsible for the 0 13 other parts of it. 14 So I had never worked on the paper and we got
15 the first issue out and, you know, daunting thing,
16 because you had to think about what stories to have, and
17 you either had to write them yourself or get somebody
18 else to write them, and then you had to get headlines,
19 but you also had to fit it onto the page, the layout. I
20 didn't know anything about layout. That's why I'm
21 thinking I must have taken journalism the same year I was
22 the editor. And the first issue came out and Miss Allen,
23 one of those wonderful, unmarried teachers that devoted
24 themselves to teaching and were excellent, and she really
25 knew her journalism, I learned so much from her about 62 c) 1 newspapers and so on, but this may have been the greatest
2 learning experience. She came and found me and started
3 screaming at the top of her lungs about how incompetent
4 this page was, this layout was just terrible, didn't I
5 understand how to lay out a page. I didn't even really
6 know the word, but I had gathered, when we were trying to
7 put the paper together that, well, you obviously had to
8 get the stuff together in some way, but there's quite an
9 art to it, you know, you're not supposed to -- although
10 now the way the Minneapolis Tribune comes out, the new
11 style, you don't use these old formal rules, so it would
12 have been, I was ahead of my time actually. 13 Anyway, that was a very humiliating experience. 0 14 It's one of the few times I burst out crying, and it
15 wasn't in a class, but it was humiliating. But I tell
16 you, I really learned layout.
17 MS. BRABBIT: The tough way, it sounds
18 like.
19 JUDGE MURPHY: Yes.
20 MS. BRABBIT: Was she a role model for you?
21 JUDGE MURPHY: No, she wasn't a role model,
22 but I learned a lot from her. There were some others of
23 those women teachers that I learned a lot from there,
24 they were spinsters, and there was a Miss Malm, she was a
25 wonderful grammar teacher, although I had learned grammar 63
1 really well from the nuns, and there was a Miss Hart that
2 was a very good science teacher. There was, what was her
3 name, biology teacher, she was great. But to show you
4 the contrast, I had a physics teacher that was so bad the
5 class was completely out of control. One day they threw
6 a chair out of the window, for example. I mean it was
7 just, you learned nothing. It was terrible. So there
8 was a big contrast. It definitely wasn't like the nuns
9 who had everything in control. So there was a big
10 contrast. There were some really good teachers and then
11 there were some bad. And then there's the whole thing
12 that if you did well, that was sort of looked down on. 0 13 MS. BRABBIT: By peers or? 14 JUDGE MURPHY: Yes, by peers. Yes. So I
15 really held myself back, which was foolish. I certainly
16 would tell people never to do that. I mean I didn't hold
17 myself back so far that I was off the wall or anything,
18 but I didn't want to call attention to myself.
19 MS. BRABBIT: At this stage in your life,
20 now you're in high school, ninth through twelfth grade,
21 did you become aware of any of what we would now call
22 gender issues? Was this even on your radar?
23 JUDGE MURPHY: Did I already tell you in
24 grade school when I thought how it would be much better
25 to be a boy? 64
1 MS. BRABBIT: No. Tell us about that.
2 JUDGE MURPHY: Well, I decided that in
3 grade school because they were favored in everything, it
4 seemed, and the chances to do interesting things and the
5 way they were treated by others. But I found one thing
6 to console myself on.
7 MS. BRABBIT: What was that?
8 JUDGE MURPHY: That if you were a girl you
9 didn't have to get drafted, you didn't have to go fight
10 in the war. How do you like that?
11 MS. BRABBIT: Wow.
12 JUDGE MURPHY: But they could talk about
13 doing interesting jobs and doing all kinds of things.
14 Seemed very unfair to me. I didn't think of it in terms
15 of the way people talk about it later, but I could see
16 that there was a disadvantage to being a girl.
17 MS. BRABBIT: If somebody would have asked
18 you in high school, if they would have come up to you and
19 said, Diana, what do you want to be when you grow up,
20 what do you want to do with your life; looking back, how
21 would you have answered that?
22 JUDGE MURPHY: I didn't have a clue. I
23 didn't have a clue at the time what I wanted to be.
24 MS. BRABBIT: So at that time you didn't
25 have a preconceived notion of -- 65
1 JUDGE MURPHY: No. I don't know. I knew
2 so little about what happened to people when they
3 finished school.
4 (End of session.)
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'~J 66
1 (March 20, 2006.)
2 MS. BRABBIT: Judge Murphy, thank you for
3 reconvening today. This is our third taping. The date
4 is March 20th, 2006. We left off last time chatting a
5 little bit about your high school experience, and I was
6 wondering if there's any additional information that you
7 would like to communicate about that?
8 JUDGE MURPHY: Well, you know, this was a
9 public high school that had all kinds of students. It
10 was not an academically oriented school. I think I
11 probably indicated that. I mean some teachers weren't
12 able to keep discipline. There were some individual
13 teachers that were good and where I learned, but that was
14 the exception.
15 You asked if I knew what I wanted to be or had a
16 career goal, and I didn't. I mentioned that I knew that
17 my father intended that I go to college, he had always
18 said that. I didn't have a very good idea of what
19 college was really, but I had the sense of it's
20 probably because it was my religious background a
21 sense that there would be a calling, that there was
22 something that I was destined to do that I would
23 discover, but I knew I hadn't discovered it yet.
24 MS. BRABBIT: So how did you then prepare
25 to continue your education following high school? What 67
1 steps did you take?
2 JUDGE MURPHY: Well, I didn't go through
3 the process of applying or taking exams, like I had for
4 high school, but it was similar in a way. My father, I
5 remember asking him, you know, thinking a little bit
6 about -- I can't even recall now what colleges -- and my
7 father said, well, if the University of Minnesota was
8 good enough for me, it's good enough for you. Because I
9 certainly wouldn't have had -- as I said, the nature of
10 the school was not such that you had, the only time you
11 saw an advisor was if you were in a trouble. It wasn't
12 the kind of school where they counseled you and said, you 0 13 know, you should be thinking about going into this, and 14 this is the kind of courses you should take and, you
15 know, think about these schools, these schools exist, and
16 that might be just as well, because of my father's
17 attitude about schools.
18 It was a great turning point in my life to go to
19 the University of Minnesota. It was so exciting. I
20 can't tell you how exciting it was to get over there.
21 And one of the first things I noticed, I mean this was a
22 very large institution, but I had never seen so many
23 people all of the same age group before. It was really
24 exciting. And then as I began to take the courses that I
25 liked, although I had to take -- I know we haven't talked 68 () 1 about this yet, but I had to take a lot of courses that I
2 wasn't interested in. I began to see what a repository
3 of knowledge there was, and the first two years I lived
4 at home, which involved quite a difficult commute. I was
5 in a riding group a little bit, but mostly I went on the
6 streetcar, and you had to transfer twice and you had to
7 stand around on the street a lot in the cold. But I
8 remember just looking at all the buildings there at the
9 University and thinking of all the knowledge that was
10 contained in all of these professors, as well as what was
11 in the library. It was really exciting. I had never had
12 this kind of intellectual stimulation before.
13 My father was a doctor, I think I mentioned that
14 before, he was a general practitioner, and he was very
15 much of the mind that you had to be sure that you were
16 going to be able to support yourself. He had always
17 wanted to have sons, I don't know whether I told you
18 that, but probably so. My existence, and my sister's,
19 were not that satisfying. I mean he always let us know
20 that later in his life he said that he was so happy he
21 had us. But he was very good, in looking back, about you
22 had to be able to support yourself.
23 And, of course, there were limited avenues that
24 people thought of as being ones where women could support
25 themselves. You know, this was regardless of whether you 69
1 were going to get married or not. So he was very
2 forward-thinking in that respect. But, as I say, there
3 weren't that many avenues that people thought of as okay
4 for women, and he wanted me to become a doctor. And it's
5 interesting that he thought of that as an avenue for
6 women because there weren't that many women doctors then.
7 I had gone along to the hospital a lot, when he made
8 calls there I would sit in the waiting room, and I had
9 also gone with him on many house calls. I just hated the
10 smell of the hospital, I hated everything about it. The
11 thought of being a doctor was not at all appealing. So
12 he said, well, if you aren't going to be a doctor, then () 13 you have to be a nurse, and I didn't want to do that 14 either. But it wasn't as terrifying as, you know,
15 actually cutting somebody open and having to be
16 responsible, you being responsible for their life.
17 I didn't want to do it, but I took pre-nursing,
18 that was my major when I started, and that involved a lot
19 of science, and you also had to get a lot of physical
20 education. That was sort of interesting, you know, in
21 those days that that would be a requirement. And then
22 the University had some standard requirements, more so
23 than maybe exist today. So there wasn't that much room
24 for things you really wanted to take, but I began to take
25 humanities and I was irrational, according to my father, 70
( ',) '. / 1 because I was taking German. That was the only course at
2 the University that he didn't excel in, he just wasn't
3 good at language, and he thought it was the hardest
4 course there was, but I was, for some reason, just
5 determined to learn German, and so I took that from the
6 first, from the beginning at the University.
7 And then I really had, in those first two years,
8 some courses that I loved. I took the history of World
9 War II at end of my sophomore year, and that was the most
10 exciting course. I think it was in my first year I took
11 world politics, and that was taught by a professor who
12 had been in the Canadian foreign service and had served
13 in Asia, and he had the colonial mind set, but I learned
14 so much about the world in that course, and still know
15 more about Indonesia and the Philippines and so forth
16 than most people do, despite the way the world has
17 changed and those countries are in the news a lot.
18 Anyway, I just loved those things, it was so exciting.
19 But at the end of the first year I discovered
20 that there was this program called SPAN, Student Project
21 for Amity Among Nations, and it's a very modest title.
22 The slogan was, "It's better to light one candle than to
23 curse the darkness." You realize this is fairly shortly
24 after World War II, because it would have been the spring
25 of '51. It's possible I learned about it in the winter. 0 71
1 They went to four countries every year at that time, and
2 there were other Minnesota colleges that were part of the
3 consortium that did this, and you got some scholarship
4 help if you qualified. In return, you had to pledge that
5 you would do a lot of speaking and everything when you
6 got back, and you had a study project that you were
7 supposed to complete during the summer.
8 There was a faculty advisor, and it was a
9 competitive thing to get in. In the year I became aware
10 of it there was a group to Germany and there was, the
11 following year, of course, there was a group to Israel
12 and England and France. Anyway, I just thought how 0 13 exciting that would be. And in the fall of '51 I applied 14 for it. I had only had one year of college German at
15 that point. Wait a second. It's hard to remember
16 exactly the sequence. I didn't take German until the
17 second year because I had all of this, I had a lot of
18 credits in zoology and chemistry I had to be doing. So I
19 only started German in the fall, which certainly put me
20 at a disadvantage relative to some of the other people in
21 the group. But at the time I went to Germany then in the
22 summer of '52 I had had one year of college German.
23 Well, I applied for it and my father didn't want
24 me to go, and my mother stood up for me, and she was
25 pretty much under my father's thumb as I would say. My 72 C) 1 father is such a wonderful man, and I know that by
2 talking about some of the aspects it may not sound that
3 way, but he was just a wonderful man. But this was all
4 for the way he saw my own good. Nobody at that time
5 traveled around Europe or anything, it's not like today.
6 You had to go by sea, and we went on an old, converted
7 troop ship. So she talked to him, and then I promised
8 him that I would go through with nursing if I could go.
9 I just hated the thought of it but I really wanted to go.
10 I meant it, you know, I felt it was a knowing agreement.
11 And if I could diverge a moment, I could tell you what
12 happened with that promise.
13 MS. BRABBIT: Please do.
14 JUDGE MURPHY: This whole SPAN thing was a
15 tremendous thing that changed my life, as you might
16 imagine. There were six young men and two women, and the
17 other woman is such a good friend of mine. I should say
18 at that time I wouldn't say that I felt quite the way I
19 do about her then as I do now. We had a woman who was a
20 native German, a geographer from Macalester College,
21 typical sort of northern German autocrat, that was the
22 group leader. And we went, as you heard, on this troop
23 ship. It took around three weeks to iet over there. And
24 then we went for two weeks, the whole group together, in
25 Berlin. That was orientation. And then we were on our 73
1 own.
2 I had wanted to study American propaganda in
3 Germany, and the professors that were in charge of the
4 pr~gram were horrified at the concept and they wouldn't
5 let me do it, so somebody suggested that I study student
6 housing projects in German universities. After the war
7 the Americans were committed to making sure that the
8 universities were cleaned up and they wouldn't be hot
9 beds that would lead to Nazism in the future. They
10 thought the problem was the students traditionally all
11 lived in rooms that they would rent around the town, they
12 weren't consolidated together, they didn't have the kind 0 13 of college life that Americans thought built citizenship 14 and democracy, and so there were a number of these
15 housing projects. So it wasn't one that really excited
16 me, but it was a project that they approved. It turned
17 out to be great for my own purposes because I was able to
18 get some link in each of these university towns that I
19 went to. And then there you are, a bunch of
20 universities, you meet students; it was great, a great
21 project.
22 Anyway I went off from Berlin all by myself, and
23 in those days people didn't speak English, that was
24 unusual. The conditions were pretty bad, and I'll tell
25 you, it was pretty daunting because of my limited German, 74
1 but I learned German that summer. I mean it was a very,
2 just like you're thrown in the water. I traveled
3 everywher~ by train, and you met people on the train and
4 you conversed with them, and some of these conversations
5 were very interesting.
6 Well, later in the summer, my first trip was to
7 Kiel, but later in the summer I was down to southern
8 Germany, and I was going to, I think, to Erlangen, which
9 is north of Munich quite a bit, and I met a man on the
10 train that lived in the general area, and he said, was I
11 going to go to Rothenberg and Dinkelsbuhl and I said, no,
12 I didn't have time, I was just concentrating on these. 13 And he said it would be terrible to leave, to be in this 0 14 area and not to see them. Rothenberg is more touristy,
15 but Dinkelsbuhl is really so authentic, compared to the
16 way it was hundreds of years ago. He said my family and
17 I live in the next town and I would like you to come and
18 meet my family, you can stay overnight there and then
19 I'll take you to Dinkelsbuhl.
20 I mean I marvel at myself in thinking that I
21 agreed to do this. This guy had a long, black coat,
22 long, black, leather coat. A lot of people were still
23 dressing in, because of the shortage, sort of uniform
24 things from the war. But long, black, leather coats are
25 not the kind of outfit that you would like to see. But 0 75
1 anyway, nevertheless I agreed to do it. I got off the
2 train somewhere, I don't remember the exact details. We
3 arrived at the place and his family, they were living in
4 a castle, not the most grandiose castle, and they were
5 living in the bottom, not the basement, but the main
6 floor in some rooms there, and he had some little
7 children and a wife. And all of a sudden he shows up
8 with this girl and the wife is summoned to bring out some
9 food and everything, and she does, and looking askance,
10 I'm sure.
11 Anyway we went to Dinkelsbuhl, and I didn't know
12 really what he had in mind, but right away we went to 0 13 this inn, he got a room for me, and I don't know where he 14 stayed but it wasn't at the inn. And so he took me
15 around this charming town, it was very, very interesting.
16 But the reason I've gone into all of this is for some
17 unknown reason he took a big interest in what I was going
18 to do. And I told him I so hated the idea of being a
19 nurse I was embarrassed to tell people that that's what I
20 was, and he said you can't do that. He said you can't
21 let your father lead your life, you can't let your father
22 do that, it's a big mistake, your whole life is going to
23 be ruined. Maybe something happened in his life, why
24 would he devote himself to this topic?
25 And so he said the night you get home -- because 76 () 1 I suppose he asked about how it was, because you take the
2 train all the way from New York -- that night you have to
3 tell your father that you aren't going to do it. Because
4 I told him what I really ·lov·ed was history. And he was
5 very insistent on that. If it hadn't been for him, I
6 never would have gone back on my promise, and I never
7 would have been able to carry it through.
8 And when I got back my family came to the, it
9 was then the Union Depot in St. Paul, big deal, you know,
10 to arrive at that big depot. They came and they were so
11 excited to see me. It was a big thing, having been gone
12 all by your lonesome, I was 18 years old, you know. And 13 we went home and sat down in the living room, which was 0 14 rare, because my dad was always working, and they asked
15 me about it and I was telling them stuff. My dad looked
16 so happy, so joyous, but I remembered what this man had
17 said, had pounded into me, and so I did it. It was very
18 hard to do, but he had persuaded me that if I didn't do
19 it that night I wouldn't be able to do it, which is true,
20 I think. And so I said, II I just can't go into nursing,
21 Daddy." And his face fell and he said, II I knew you would
22 change, II and he got up and he stormed upstairs.
23 Anyway, sort of a long diversion, ·but it's
24 amazing when things happen in life, because I don't know
25 what would have happened if -- because I took promises () 77
1 seriously.
2 MS. BRABBIT: Do you remember this German
3 fellow's name?
4 JUDGE MURPHY: No, not at the moment, and
5 maybe I have a diary somewhere that has his name in it.
6 But we corresponded after that, and he came and visited
7 in Minnesota. And I was working, from the time I was 16
8 I worked at Montgomery Ward, I don't know if we talked
9 about that, during the summer and after school. My
10 father also believed that you pay your own way. So I had
11 an employee discount and I took him over there, he needed
12 paint for his living quarters and it was hard to get 0 13 paint at that time in Germany. And so we went to the 14 paint department at Montgomery Ward, and he was trying to
15 explain, he didn't speak very good English, and he was
16 trying to explain what kind of paint he needed, you know,
17 that it was very damp. And so finally I said he lives in
18 a castle. That was the most unbelievable statement for
19 somebody that was shopping for paint at Montgomery Ward.
20 Anyway, I can't tell you his name now.
21 MS. BRABBIT: Did you share with him your
22 story about how you conversed with your father when you
23 returned?
24 JUDGE MURPHY: Yes.
25 MS. BRABBIT: And what was his reaction to 78
1 that?
2 JUDGE MURPHY: Well, he stayed with my
3 family.
4 MS. BRABBIT: Okay.
5 JUDGE MURPHY: He was pleased.
6 MS. BRABBIT: Yes, yes.
7 JUDGE MURPHY: He was pleased. I told him
8 what a difference it made for me.
9 MS. BRABBIT: How nice. Now this was the
10 summer of 1952, is that right?
11 JUDGE MURPHY: Right.
12 MS. BRABBIT: Now was this the summer 13 between your freshman and sophomore year then? CJ 14 JUDGE MURPHY: No, sophomore and junior.
15 That's why I had to come back.
16 MS. BRABBIT: Okay.
17 JUDGE MURPHY: See, before I went to
18 Germany, because I had made the promise, I went over in
19 that spring quarter -- because I had completed all of the
20 prerequisites for nursing -- I went over to Millard Hall,
21 and it smelled just like a hospital. Millard Hall was a,
22 probably still is, a school in nursing, and I registered.
23 So when I got back in the fall I was going to have to
24 take all of the stuff I didn't want to take. The whole
25 program would be everything I hated. 79
1 MS. BRABBIT: Yes. So you switched your
2 major to history?
3 JUDGE MURPHY: History. Actually I ended
4 up majoring in, I had a double major in German and
5 history, so it was called Central European Area Studies.
6 But I knew that those were the two things I wanted to do.
7 And as soon as I came back I wanted to go back to Germany
8 again, so I had in mind, you know, getting myself there
9 as soon as I graduated.
10 MS. BRABBIT: Which we'll talk about in a
11 minute. Tell us then about your studies your junior and
12 senior year at the University. 0 13 JUDGE MURPHY: Well, I should say I went 14 through rushing, sorority rushing, I joined a sorority.
15 MS. BRABBIT: Well, tell us about this.
16 JUDGE MURPHY: At that time if you lived in
17 town you couldn't go through rushing until winter
18 quarter. The priority was for people who were going to
19 live in the houses, you know.
20 MS. BRABBIT: So would this has been the
21 start of your junior year?
22 JUDGE MURPHY: No, freshman.
23 MS. BRABBIT: Freshman year.
24 JUDGE MURPHY: Right.
25 MS. BRABBIT: When you were commuting? 80
1 JUDGE MURPHY: Right, and that's probably
2 why I did it, because you didn't have a place to call
3 your own at all because it was a long commute. So I was
4 a pledge in the winter of January of '51. And the name
5 of the sorority is Alpha Gamma Delta, and it had a
6 busboy. It had several busboys who belonged to
7 fraternities and worked as busboys there, you know, to
8 earn income. And the pledges, at that time there weren't
9 automatic machines, you had to dry dishes, and one of the
10 busboys was somebody named Wendell Anderson, and that
11 turned out to be very significant in my later life. But
12 at the time he was just a delightful person, cute,
13 everybody loved him, and he was pinned to a member of
14 that sorority. Maybe they weren't quite pinned yet. CJ
15 MS. BRABBIT: And who was that member? Was
16 that you?
17 JUDGE MURPHY: No, no, no, I never knew
18 Wendy very well, but I knew him.
19 MS. BRABBIT: Okay. And for those who
20 might not be from Minnesota, please take a moment just to
21 describe Wendell Anderson.
22 JUDGE MURPHY: Well, he became governor of
23 the state of Minnesota, and was a senator also for a
24 time. When he was governor he was on the cover of Time
25 magazine, it said "The Minnesota Miracle" or something 0 81
1 like that. Very successful as governor. In fact,
2 Congressman Sabo, who just retired, I mean he announced
3 his retirement from Congress after many, many terms,
4 referred to him the other day as the greatest governor
5 that Minnesota has ever had, and I think that's probably
6 accurate.
7 In his second term he stepped down and the
8 lieutenant governor then appointed him to the Senate, and
9 when he ran for election he was defeated. The opponent
10 said he arranged this himself, appointed himself and then
11 he didn't show up. So that sort of was an unfortunate
12 thing for him from the standpoint of being such a super 0 13 governor. 14 MS. BRABBIT: So you first came to know him
15 at the University of Minnesota?
16 JUDGE MURPHY: Right. As I said, I didn't
17 know him well.
18 MS. BRABBIT: And he was a busboy.
19 JUDGE MURPHY: Right. And if I hadn't been
20 a pledge that winter in that sorority house, I wouldn't
21 have known him.
22 Anyway, I got really very involved in a lot of
23 things. I got involved in the German club, I was even in
24 a German play. I can't imagine being in a play.
25 MS. BRABBIT: Before we leave the sorority, 82
1 did you go on to be a member of Alpha Gamma Delta all
2 four years while you were at the University of Minnesota?
3 JUDGE MURPHY: Yes, I was the president the
4 last year. I Wtls an officer all the time practically, or
5 helped with some kind of responsibilities. And in my
6 senior year there were two people that were nominated to
7 be head of the Panhellenic Council, and I was one of the
8 two. I had been active, I had chaired a committee there
9 on, it wasn't called equal opportunity, but it was
10 looking at, obviously the Greek system was very
11 discriminatory, and it was looking at overcoming that.
12 Anyway, I also was nominated to be president of the
13 sorority, and you couldn't do both. You couldn't be
14 president of a sorority and president of the inner, of
15 the Panhellenic Council, and if you were president of my
16 sorority, you could pick the room you wanted.
17 MS. BRABBIT: Within the house?
18 JUDGE MURPHY: Yes. And so on that basis I
19 took that. It was important to me.
20 MS. BRABBIT: Now the Panhellenic Council,
21 did you mention that's the all-Greek council for women?
22 JUDGE MURPHY: Yes, for sororities.
23 MS. BRABBIT: Okay.
24 JUDGE MURPHY: There was an Interfraternity
25 Council, and Panhellenic was the women, the sororities. 83
1 MS. BRABBIT: So you served in your senior
2 year as president of Alpha Gamma Delta?
3 JUDGE MURPHY: Yes.
4 MS. BRABBIT: Can you talk a little bit
5 about women in the Greek system during your experience at
6 the University of Minnesota? What was that like? What
7 challenges were there for women?
8 JUDGE MURPHY: Well, I moved to campus in
9 the spring of '52. I mean that was a great thing, being
10 able to live on campus in a small house. That was one of
11 the benefits. Also there was a small group that you got
12 to know that felt cohesive. I mean there were a lot of 0 13 activities I was never interested in, like the homecoming 14 parade, building the homecoming float and things like
15 that that I wasn't particularly interested in, but they
16 also valued grades. I mean they had collections of old
17 tests and old papers and stuff, but I never used those.
18 But it was mainly a place to live and a place to go, gave
19 you some center there.
20 MS. BRABBIT: Did you ever have
21 conversations at the U of M, particularly with your
22 sorority sisters, about gender equity?
23 JUDGE MURPHY: A little, but I was, I
24 perceived inequities of sorts, but other people were not
25 interested in it. They were accepting of things as they 84 C) 1 were in general. And I would say that it was not a hot
2 bed of intellectual ferment. I mean most of the women
3 were not pursuing academic careers, if I'm thinking about
4 academics as sort of the long-term thing, but rather to
5 get a degree, a teaching degree or whatever it might be,
6 home economics, with the idea that they would work but
7 they mainly were thinking about getting married, and
8 there weren't fledgling scholars, shall we say. I mean
9 there could be here and there, but in general.
10 MS. BRABBIT: You mentioned you were
11 involved in the German club and even a German play?
12 JUDGE MURPHY: Right. And there was 13 something called the Social Service Council, I was on 0 14 that. I was involved in everything. I mean it's hard to
15 remember. A very coveted job in the summertime was as an
16 orientation sponsor, and I got that job in the
17 summertime, and then I did it during the school year,
18 too. There weren't as many people to orient then. I
19 would have to sit down and think about it. I was chair
20 of an All-University Congress Committee. Right now I
21 can't remember what it was for. The president of the
22 University had an All-University Camp Committee, he had a
23 dream of having a camp for freshmen, I was on that. I
24 was in the women's sophomore honorary, the junior
25 honorary, that's Chimes, the senior honorary, that's 0 85
1 MortarBoard, I was president of Mortarboard. I was
2 involved in everything.
3 MS. BRABBIT: You also had a number of
4 significant leadership roles at the University of
5 Minnesota. Is that the place where you really saw your
6 leadership skills starting to come together?
7 JUDGE MURPHY: Yes, I would say so. I mean
8 a very daunting experience I remember is standing up in
9 front of all the parents when the main orientation group
10 was coming through and speaking to a thousand people, you
11 know, standing in front of a thousand people. And once I
12 did that, I was never afraid to speak again because 0 13 that's a lot of people. 14 MS. BRABBIT: It is.
15 JUDGE MURPHY: You learn by all these
16 things. Sometimes you lucked out. You had to have a
17 project when you were, MortarBoard had to have a project
18 in order to earn the little bit of money that it needed
19 to exist, and I had no idea what to do, but all of a
20 sudden one day in the mail came an offer, and it was some
21 kind of outfit that wanted the opportunity to be able to
22 show people their goods, maybe it was jewelry I don't
23 even remember what it was and they needed an ability
24 to get onto the campus to do it, and it was like manna
25 from heaven. I would have been a big flop otherwise. 86
1 I can't even remember all the things right now,
2 you know, without -- but there was something called the
3 Order of the North Star, as I recall, that recognized the
4 ten top leaders of the University, and I got that when I
5 was a senior. It was pretty unusual to get both Phi Beta
6 Kappa and graduate magna cum laude and also have that.
7 MS. BRABBIT: Wow.
8 JUDGE MURPHY: So I would say that when I
9 got that kind of recognition, and then I also, during
10 that senior year, was able to get a Fulbright
11 scholarship, and there was a local scholarship to the
12 Free University of Berlin that I probably would have -- 13 well, I would have been able to get, but I withdrew from C) 14 that because I preferred to have the Fulbright. Having
15 survived that summer in Germany, that did a lot. And I
16 lived in the German house the following summer so I could
17 perfect my German. Not the following summer, between
18 the junior, yeah, between the junior and senior year. So
19 when I went back to Germany -- and I kept taking German
20 every year.
21 MS. BRABBIT: So just to recap, you were in
22 Germany in the summer of '52, and then between your
23 junior and senior year at the University of Minnesota you
24 lived in the German house during the summer?
25 JUDGE MURPHY: Right, and I took some kind 0 87
1 of courses in geography, and I took something else in
2 summer school. But in the German house, the idea was you
3 took all your meals together and you conversed in German.
4 We had some special German courses. I'm just trying to
5 remember all that. There's a lot to remember.
6 MS. BRABBIT: Yes. You've identified a
7 number of leadership positions, I know we don't have them
8 all, but a number of significant leadership positions.
9 And if you look at your professional past, post-law
10 school, you were a woman of many firsts. Do you recall
11 if some of these positions that you had as an undergrad
12 were positions of firsts for women? 0 13 JUDGE MURPHY: Well, I don't know, I would 14 have to think about it, because I don't remember all of
15 the positions. They may not have been -- I would have to
16 be sure I have all the positions.
17 MS. BRABBIT: Do you have a recollection of
18 what the --
19 JUDGE MURPHY: Because, you see, there's
20 these women's honoraries, there's the sorority and
21 Panhellenic Council. I wasn't the first woman to be an
22 orientation sponsor.
23 MS. BRABBIT: Okay. Or the honor of the
24 Order of the North Star?
25 JUDGE MURPHY: I don't know. I can't tell 88
n, __ .· 1 you if I was the only woman. It's possible.
2 MS. BRABBIT: Can you give us an idea of
3 what the landscape was like in terms of the gender split
4 at that time?
5 JUDGE MURPHY: Well, there were far fewer
6 women, but I couldn't tell you what the percentage was.
7 But the higher-up you got in, I took a graduate seminar
8 in history when I was a senior, and there were only two
9 women in that seminar. The other people were graduate
10 students, and the other, I mean that was, I remember that
11 being, you know, the only women. And as you got into
12 graduate school then, there weren't very many women. It 13 depended a lot on what course you were taking. 0 14 MS. BRABBIT: How about faculty role
15 models, or other role models during that time frame,
16 Judge?
17 JUDGE MURPHY: Well, I already told you
18 about Harold Deutsch, I think.
19 MS. BRABBIT: No, we haven't talked about
20 Harold.
21 JUDGE MURPHY: Well, Harold Deutsch, that
22 great candy-cane course, it was just like going to the
23 most wonderful entertainment because I loved it so. In
24 the spring of '52, Second World War, it was an
25 upper-division course, but I got permission to take it. 0 89
1 It was so exciting, and it was the third, it was a
2 whole-year course and this was the third sequence, so I
3 took that part of it out of order, so to speak. But it
4 was so exciting. He was a wonderful lecturer. He was
5 also a very well-known scholar, and the work that he
6 published then and a little bit later on the resistance
7 against Hitler and the conspiracy to kill him is still
8 cited, and there's been so much work on that later, but
9 at the time he was a lone scholar in the wilderness, so
10 to speak. He was such an enthusiast about the history,
11 and he had the opportunity to interview a lot of the
12 German leaders in Nuremberg, many of them he had met in 0 13 the late '30s, and he was able to bring, to paint a 14 picture when he would tell about a meeting between two
15 historical figures with the door open and the wind
16 blowing through, and present the moral issues so well.
17 When I came back from my Fulbright I had to
18 support myself, and I applied when I was in Germany to be
19 a dorm counselor, maybe I told you that, too, I can't
20 remember what I've told you, so I was a resident
21 counselor in a dormitory. Because of how active I had
22 been, it was easy to get that, even late in the game and
23 from afar. And then when Harold Deutsch realized that I
24 was back, he asked me to be hi~ assistant, which wasn't
25 an easy thing because you had to grade -- he was so 90
1 popular and his assistant did all the grading. Can you
2 believe that? I mean that was a real responsibility.
3 MS. BRABBIT: Absolutely.
4 JUDGE MURPHY: I mean in theory they could
5 have gone to complain to him, but I don't know if anybody
6 ever did. Sometimes they came and complained to me and
7 sometimes I might have seen something that I had
8 overlooked before, but usually I told them what was wrong
9 with their test. But this was hundreds of blue books.
10 Oh, boy, was that something.
11 And then he also lectured at the Army War
12 College so sometimes he would miss his class. Now it 13 would be nothing, I could take that little tape recorder, C) 14 or even a smaller one, and a tape. But in those days it
15 was a huge, huge thing, and I had to carry that. And
16 while I didn't have a diagnosed case of rheumatoid
17 arthritis at that time, it was very difficult for me to
18 carry anything like that. That was the hardest part of
19 all. But I admired him so much and looked up to him so
20 much.
21 MS. BRABBIT: And did you continue to be in
22 touch with him even after your Fulbright?
23 JUDGE MURPHY: Well, certainly when I was
24 working for him, but then I got another teaching
25 assistantship where I was out actually teaching, as well 0 91
1 as doing grading, and that was more, you can see why that
2 would be more exciting, although I never had a
3 relationship with that professor. It was another
4 professor in the history department, Professor Steefels,
5 that was 19th Century German, he was a scholar of the old
6 school, and he was great. But I migrated back into the
7 medieval period. There was a younger professor there who
8 died before his time, but I'm getting ahead of myself.
9 MS. BRABBIT: Well, let's make sure that we
10 finish up your role models and mentors while you were an
11 undergrad, and you've mentioned Professor Deutsch and
12 Professor Steve Schultz, is that? 0 13 JUDGE MURPHY: Steefels. I didn't have 14 anything to do with him until grad school.
15 MS. BRABBIT: Okay, that was graduate
16 school. Any other mentors, role models who were
17 influential in your development in your undergrad days,
18 Judge?
19 JUDGE MURPHY: Well, I think about who did
20 I ask to write recommendations for me when I applied for
21 the Fulbright. Harold Deutsch. I also talked to him
22 about a topic I might study. The idea of a study
23 project, too, he helped me with that. And he wrote a
24 wonderful, a wonderful recommendation. Over the years I
25 got him to come speak at groups that I was involved in 92 0 1 later and so on, so we had occasions to see each other.
2 Then the Dean of Students was a man named Edmund
3 Williamson, and, you know, most students at a big
4 university like that never know the Dean of Students, but
5 because I had been so active in various activities I knew
6 him, and he had sought me out. When he was worried about
7 the Greek system and the exclusion of people, he sought
8 me out to head up that initiative. I don't know what
9 else he might have been involved in in that respect, but
10 he wrote me a letter.
11 I also took Spanish, and got to the point in
12 Spanish where the last course I took, the whole class was 13 in Spanish, and you talked in Spanish and everything, but () 14 unfortunately I haven't kept up in that as well. I asked
15 that professor, Cuneo, he was from South America, and he
16 was such a different kind of personality. Deutsch, of
17 course, is very, very Germanic. Professor Cuneo was a
18 real Latin American. He would be so irate talking about
19 the Foshay Tower, what an insult it was, "insul to." That
20 was before the IDS Tower was built, and the Foshay Tower,
21 if you can believe it, was the tallest building in town,
22 and it's sort of a phallic symbol, and it's a little
23 Washington Monument type of building. That was an
24 insult. What was insulting to him was that Foshay, who
25 had built that tower and then lost all his money, had his 0 93
1 name emblazoned on it in huge, huge letters, and as an
2 Hispanic man, that was so insulting to him to have to
3 look up and see that man's name up there on the tallest
4 building. It's interesting.
5 But his recommendation was the strangest because
6 he said, well, come in and talk to me about it. So I
7 went and he put the thing in this typewriter and he said
8 what should I say? I didn't have any idea, you know, but
9 he was insistent, so then I thought about some topics
10 that you might cover. I mean I didn't dictate it. I
11 must have had some other professors in nonlanguage, but I
12 haven't thought about for so many years. 0 13 MS. BRABBIT: Do you have these letters, 14 Judge?
15 JUDGE MURPHY: I don't know. Maybe. I
16 doubt it. My mother threw away a lot of stuff. No, I
17 don't think I would have them. It would be interesting,
18 though, wouldn't it?
19 MS. BRABBIT: So then your senior year
20 you --
21 JUDGE MURPHY: I'm just trying to think if
22 there were some other professors. Well, I had individual
23 professors in the German department that, you know, the
24 German literature is wonderful literature, and they
25 really sparked my appreciation for that, and also I would 94
1 say they took an interest in me. There was a Professor
2 Borchert in geography, I've had continuing contact with
3 him over the years, he was wonderful. If you're
4 wondering if I had a woman professor
5 MS. BRABBIT: Did you?
6 JUDGE MURPHY: No. The only women teachers
7 I had -- oh, beginning Spanish, but that was not a
8 professor, she was just a -- and in phy ed, rifle
9 marksmanship, I took that, too, that was a man, but
10 otherwise in phy ed, the teachers were women.
11 MS. BRABBIT: How about the administration
12 at the University of Minnesota? Do you remember any
13 women being involved in the administration, any of the
14 deans?
15 JUDGE MURPHY: There was an assistant dean
16 that was related to testing or something. When I went
17 back to be a resident counselor, the chief counselor in
18 the dorm was a woman. There were. some women profess o_rs,
19 there were two in the history department, but they didn't
20 teach subjects I was interested in. And they were not,
21 you know, I would say this, you don't know as an
22 undergrad, but when you're in the graduate school you
23 know, they were on the fringe of how things were run, but
24 nonetheless, they were full professors.
25 MS. BRABBIT: And then you decided to apply 0 95
1 for the Fulbright. When did that process start for you?
2 JUDGE MURPHY: Well, it was in my senior
3 year. I knew I had it by the spring. I think it was my
4 senior year. At that time, I mean there are a lot of
5 scholarships now that are available that weren't then,
6 like these Marshall scholarships didn't exist, and the
7 Rhodes scholarships were, of course, closed to women. So
8 it was a big deal; Fulbright scholarships were a
9 wonderful opportunity.
10 MS. BRABBIT: Judge, if you wouldn't mind,
11 can I go back and recap, before we get too far along? I
12 want to ask you about your employment, because you've
13 mentioned one place of employment, and you also mentioned
14 that it was an important lesson from your father that you
15 were self-sufficient, but I also gleaned that you paid
16 your way, and so you worked. If you could go back and
17 tell us about those early days of employment where you
18 worked and then whether or not you had paid positions
19 throughout the University of Minnesota when you were an
20 undergrad.
21 JUDGE MURPHY: Well, my dad was after me to
22 get a job. I did baby-sit, you know, baby-sitting, but
23 you couldn't get a job until you were 16. I went and
24 tried to get jobs before, at his urging, but when they
25 found out you were 15, they weren't interested. So as 96
1 soon as I became 16 I went over to Montgomery Ward, which
2 had a big store and a huge catalog center, but the store
3 was like a huge department store on University Avenue.
4 At first I was a floater, you know, going from department
5 to department without any explanation. A lot of times
6 you would come in and you would be the only person in the
7 department. Like the day I showed up in sporting goods,
8 or curtains, that was hard, because I didn't know
9 anything about curtain rods or anything. The very worst,
10 though, was greeting cards, the day I went there, because
11 they didn't have any price tags. And I figured out
12 myself, finally out of desperation, that it was marked on
13 the back of the card, you know, because there are
14 numbers, and I figured out what that might be. So I
15 worked summers and during the year after school and
16 Saturdays, but I then got into women's sportswear and
17 that was where I stayed.
18 MS. BRABBIT: And how long did you work at
19 Montgomery Ward?
20 JUDGE MURPHY: The summer between freshman
21 and sophomore I had this orientation sponsor job, so
22 whether I still -- I must have still worked after school
23 when I got back, though, from SPAN, because I took that
24 fellow over to Montgomery Ward, as you recall, so I must
25 have continued working during the school year. I can't r\ L> 97
1 remember until which point. But then during the end of
2 my time, I told you I worked as a -- maybe you didn't get
3 those jobs as orientation sponsors until you were a
4 little farther on in school. It's a little hard for me
5 to remember. I probably worked there the first summer,
6 too.
7 MS. BRABBIT: After your freshman year?
8 JUDGE MURPHY: Right. I'm not sure.
9 MS. BRABBIT: And the orientation sponsor
10 position, that was a paid position, Judge?
11 JUDGE MURPHY: Yes.
12 MS. BRABBIT: Okay. C) 13 JUDGE MURPHY: And so I had that, I did it 14 one whole summer, and then that probably was in my senior
15 year, then, to do it during the quarters. And then I had
16 the Fulbright scholarship and then I came back and got
17 the dorm counseling job and the teaching assistant job,
18 and I kept the teaching assistant job until I got
19 married. So I only did that dorm job that first year.
20 The job when I was working for Professor Wolf when I was
21 teaching modern history, European history, that paid more
22 than when I was a teaching assistant for Professor
23 Deutsch.
24 There were some wonderful leaders at the
25 University of Minnesota. I really learned a lot by 98
1 watching them, I would say. I'm talking about students
2 now that were ahead of me, and you sort of had models.
3 MS. BRABBIT: What were some of the things
4 that you learned from watching those individuals in the
5 leadership roles that you carried with you?
6 JUDGE MURPHY: Well, the people that I
7 admired had confidence. They reached out to people, they
8 took on, they weren't afraid to take on things. That's
9 one thing I learned in college; that you shouldn't be
10 afraid to take on something that you haven't done before
11 because you could. In other words, you know, taking on
12 leadership positions may be an area that you haven't done
13 much in, but you have to learn what the goals are and
14 break things up into parts and get people involved in the
15 different parts. It's the same process really everywhere
16 you go, and so I really learned that at the University.
17 You asked me a minute ago how my parents reacted
18 to my moving over to the campus. I don't think, you
19 know, they weren't too enthused about it, but by then
20 they had both been at the sorority house, there's a house
21 mother there, they knew the people, and my mother was
22 active in the mothers' group. And I think it might have
23 been different if I was saying I wanted to, you know,
24 move into a room at some rooming house or maybe the
25 dormitory, I don't know. 0 99
1 MS. BRABBIT: When did you find out that
2 you were the recipient of the Fulbright scholarship?
3 JUDGE MURPHY: I would say maybe early in
4 the spring quarter. The only way I have to remember is
5 that the process for this scholarship at the Free
6 University in Berlin was, hadn't come to an end when I
7 got word that I was going to get the Fulbright. That was
8 pretty exciting news for me. So I can't remember exactly
9 when it was.
10 MS. BRABBIT: And then take us to your end
11 days at the University of Minnesota and transitioning to
12 the next phase of your life, Judge. () 13 JUDGE MURPHY: Well, I was really excited 14 to be going back to Germany. I remember when I first set
15 foot in Germany, we got off the train -- we landed in
16 Rotterdam and had taken the train from Holland, and we
17 got off in Hamburg because you couldn't, at that time you
18 had to fly to Berlin. This was just after the air lift
19 had ended. Things were pretty tense over there at that
20 time. I remember getting off and there was this Gothic
21 lettering, you know, like the Germans -- you can still
22 see it some places but not much -- these paving stones
23 and everything. Just the way the whole thing looked, it
24 just, I don't know, it just felt like I was back, and I
25 had never been to Germany before. Now whether I had been
\___ .. / 100
1 seeing things in movies or in books or whatever, it was 0
2 so exciting to me to be in Germany.
3 MS. BRABBIT: Which city did you first
4 arrive in?
5 JUDGE MURPHY: Well, for all intents and
6 purposes it would be Berlin, because we just got on a
7 plane in Hamburg and flew to Berlin, and then we were
8 there for two weeks. We stayed in -- well, Nancy and I,
9 my friend Nancy, stayed in a home that had once been a
10 private home in Dahlem, which is a nice, very nice
11 suburban neighborhood which some kind of girls' school
12 was in, young girls. And we arrived and came in and all
13 along the stairway going upstairs were these girls in
14 their uniforms with recorders, and they sang and they 0
15 played some kind of spiritual music like little angels.
16 And every time, not every time, but usually we go by that
17 house in Berlin, we go to Berlin every year, and it's
18 changed over the years. They've spruced it_up now, but
19 it's got multiple people living in it, sort of like a
20 triplex. Nancy and her husband actually talked their way
21 into the place a few years ago and took pictures inside.
22 MS. BRABBIT: And Nancy's last name?
23 JUDGE MURPHY: It was Reitz, but it's
24 Rotenberry now.
25 MS. BRABBIT: Do you still keep in contact 101
1 with her?
2 JUDGE MURPHY: Oh, very much. We're good
3 friends.
4 MS. BRABBIT: Tell us more about your
5 experience over there.
6 JUDGE MURPHY: Well, I just had to pinch
7 myself all the time that I was there. I'm back on SPAN
8 now. I'm sorry.
9 MS. BRABBIT: Oh, you're on SPAN with
10 yourself, Nancy and the six other men who accompanied
11 you?
12 JUDGE MURPHY: Yes. 0 13 MS. BRABBIT: Okay. 14 JUDGE MURPHY: Now you want to ask about
15 the following, when I went as a graduate?
16 MS. BRABBIT: Right. So when you said this
17 was your first time in Germany, that was the SPAN
18 program?
19 JUDGE MURPHY: Right. I'm sorry, somehow I
20 misconnected on that question.
21 MS. BRABBIT: No, that's okay. But just so
22 that our subsequent readers know, the SPAN program was
23 the first time you were in Germany and then the second
24 time was with the Fulbright?
25 JUDGE MURPHY: Yes. 102
1 MS. BRABBIT: Okay.
2 JUDGE MURPHY: Okay, once again we're going
3 on a boat.
4 MS. BRABBIT: Is this a troop ship?
5 JUDGE MURPHY: It probably had been
6 converted during the war but it was a little higher
7 class, and it was a German ship. The other one had been
8 a Dutch ship. We were divided on the ship, people were
9 going to different countries, but among the German group
10 we self-selected into language proficiency groups, and I
11 picked the top one, knowing that it was a little
12 fraudulent because all the other people in the top one
13 were native German speakers, you know, whose families (-')_,, 14 were German and they had grown up speaking German. But
15 meanwhile I had learned that you learn a lot more, and I
16 wasn't thrown out, because meanwhile I had learned a lot
17 of German that summer.
18 MS. BRABBIT: When you were in German
19 house?
20 JUDGE MURPHY: No, the summer when I was in
21 Germany traveling all over having to speak German. That
22 was tremendous, you know, every day, and then I took
23 German all through junior and senior years and then the
24 German house. So I was proficient. And then we had a
25 three-week orientation in a little run-down spot in a 0 103
1 town on the Rhine called Bad Honnef, and there we did
2 more, you know, German, that was mainly in German. There
3 wasn't that much orientation other than that.
4 And meanwhile I had applied to go to the
5 University of Munich, which was thought to have the best
6 history department, but you recall Dr. Deutsch had
7 suggested a topic for me, and the topic was an
8 interesting one. It was the German occupation of the
9 Rhineland after World War I. When the Germans weren't
10 able to pay all of the debts that the allies put on them,
11 the French reoccupied the area. You know, this is an
12 area that they had invaded under Napoleon and so on and () 13 so forgot. So if I had been thinking, I would have 14 realized that that was not a good topic to get to go to
15 Munich on.
16 What I would have liked to have done, and what I
17 probably should have done, my first choice, would have
18 been to study the conspiracy or the German resistance
19 movement. I mean saying the conspiracy against Hitler
20 makes it sound like it was bad. But it was so close to
21 the war that people weren't aware of what that was
22 really, but there was an institute in Munich that even
23 then was beginning to collect documents. That's what I
24 would have been most interested in, and I probably talked
25 to Dr. Deutsch about that. I suspect he must have 104
1 counseled me not to do that, but that's what I would have 0
2 been most interested in. But the history department at
3 the University of Munich wouldn't have been thinking
4 about that as a reasonable historical subject, you know,
5 more oriented towards past, further back in the safer
6 past. So naturally I had to put down a second choice,
7 and he suggested, well, why not put down Mainz, because
8 that's in the area where the French went in, there would
9 be documents and so on there. Well, naturally but it
10 was a great disappointment to me -- when I got my
11 Fulbright, it was to go to Mainz.
12 I had never been in Mainz, I had beeti in Munich,
13 of course, when I was there before, and I was quite
14 disappointed about that. But, you know, it was
15 self-evident if you put down that study topic, and the
16 documents and even the witnesses would be in Mainz.
17 So then there's the trip from Bad Honnef down to
18 Mainz filled with expectation, and this was a university
19 that Napoleon had closed, and it had only been reopened
20 after the war, after World War II, and it was housed in a
21 Luftwaffe barracks.
22 MS. BRABBIT: Can you repeat that, Judge?
23 JUDGE MURPHY: It was housed in a Luftwaffe
24 barracks.
25 MS. BRABBIT: Luftwaffe? 0 105
1 JUDGE MURPHY: Air Force.
2 MS. BRABBIT: Okay. Are you the only one
3 travel to Mainz then? Are you going by yourself?
4 JUDGE MURPHY: No, there was a man that had
5 gone to Columbia and was also interested in history, and 6 there was a woman. There was a man named Frank Haendler, 7 I remember his name.
8 So this is a smaller university, and the town
9 was a big shock because it was still completely
10 destroyed. In the English and American zones they had
11 helped the rebuilding process but the French hadn't, and
12 I tell you, it was really very depressing to get there.
13 I thought how can I live here a year. I was ashamed of
14 saying that to myself, because I knew that the people
15 were living there all the time, but I'm just telling you
16 what it was like. There was just rubble that was still
17 left, not cleared out. There was a wonderful old
18 cathedral that had not been damaged, it had been somewhat
19 damaged but it wasn't destroyed, and there were a few
20 other buildings, but it was mainly a wreck, so that was a
21 big shock.
22 MS. BRABBIT: Where did you stay?
23 JUDGE MURPHY: Well, true to my student
24 housing project, I stayed at the university. Because it
25 was a Luftwaffe barracks, the main university part was a 106
1 parade ground, and there was a building down at this end
2 where they had the restaurant and stuff.
3 MS. BRABBIT: And, Judge, you're drawing
4 this out for us, right?
5 JUDGE MURPHY: Right.
6 MS. BRABBIT: So you called it a parade
7 ground?
8 JUDGE MURPHY: Yeah, a parade ground. I
9 mean it was a courtyard now, but I'm telling you it was,
10 these were barracks. There was some administration
11 stuff, and the student restaurant -- the traditional
12 German name at universities for the place to eat is 13 mensa. And then the classes were held on the first two CJ 14 floors of this giant U, and the third floor up under the
15 dormer part of it was student housing. And those rooms
16 were concrete floor, three camp beds with Army blankets,
17 a wooden table in the center that had two chairs, and
18 there were no showers. As you can imagine as a barracks,
19 there were a bunch of sinks and then toilets. No hot
20 water. And there was one room where there were some hot
21 plates.
22 So we were right there at the university. There
23 was no social, no planning. There was no organization
24 that students that ran the place or anything like that,
25 but you were right there. It was handy. There was a C> 107
1 naked light bulb in the ceiling.
2 MS. BRABBIT: Were you to yourself in one
3 of those rooms?
4 JUDGE MURPHY: No, I had two roommates.
5 MS. BRABBIT: Okay. So three of you
6 sharing this wooden table and three Army cots?
7 JUDGE MURPHY: Right. It didn't lend
8 itself to a good place to study, shall we say.
9 MS. BRABBIT: Yes.
10 JUDGE MURPHY: But I discovered that there
11 was a project like the ones I had studied that was behind
12 this, it was back in here. Now, this is such a huge
13 university, and from the very beginning of its
0 14 reinstitution it's been particularly good in medicine, so
15 there are hospital facilities and everything, but it's
16 huge now, and there are so many buildings. This is just
17 a little part of it now, but I'm talking about what it
18 was like when I arrived in 1954. There was sort of a
19 little forestry area behind here, and then there was one
20 building in a little, round sort of like meeting space,
21 and this was a new building, and it had two floors in
22 which men lived and one floor on which women lived. This
23 was way ahead of its time in 1952. No, I'm sorry, this
24 is 1954. A co-ed dorm, and you only had one roommate, it
25 was sort of Danish design, and they had a government and 108
1 they put on programs and stuff, so I was asked to have an 0
2 American night. I got in there the second semester, so
3 you can imagine I was very glad to move out of the
4 dormers. This place didn't have hot water either, but it
5 was oh so luxurious compared to this other place.
6 MS. BRABBIT: So you spent half your time
7 in this first building and then half your time in the
8 upgraded area?
9 JUDGE MURPHY: The upgraded one that was a
10 kind of project that the reformers had in mind where you
11 were all going to be working together on things and
12 stuff.
13 MS. BRABBIT: And those were your
14 accommodations. Tell us about your work for that year 0
15 when you were there.
16 JUDGE MURPHY: Well, there were some really
17 exciting courses. The German universities are different
18 than universities are here. They have theology
19 faculties, too, because in a traditional university
20 that's one of the four areas of study; law, theology.
21 MS. BRABBIT: Medicine probably?
22 JUDGE MURPHY: Yeah, and sort of a liberal
23 arts thing. There was a professor named Lortz, who was a
24 priest, but also a very famous historian, and he had a
25 lecture course called History of the Church, which was 0 109
(
1 really fascinating. There also was an institute down in
2 town, I'm trying to think of the name of it, he was head
3 of that. It was an historical institute. There were a
4 number of scholars that were attached to that, and they
5 had a lot of documents and stuff connected with the
6 French occupation. I also took some kind of a seminar
7 down there.
8 And while I was there he came out, he had many
9 books, that Professor Lortz, he was head of that
10 institute, he had one multivolume History of the Church,
11 and then he came out with one volume, and I bought his
12 book and I asked him to inscribe it. And he called me, 0 13 he must have been in his 80s at the time, he called me 14 "kleines frauleinchen'' in class if he was going to ask me
15 a question, which is three diminutives. I mean, remember
16 when you wondered how many women were in school in
17 America?
18 MS. BRABBIT: Yes.
19 JUDGE MURPHY: Tons compared to this. In
20 Germany there were almost none.
21 MS. BRABBIT: Was it a hostile culture?
22 JUDGE MURPHY: It was a male culture. And
23 here's the professor calling you -- "fraulein" itself
24 means little woman.
25 MS. BRABBIT: Okay. l , ...... / 110
1 JUDGE MURPHY: When you add "chen" to the
2 end of it, it's like little, little woman, and then
3 "kleines" is little. "Kleines frauleinchen" is a
4 diminutive sort of like tripled. It's fond, fond.
5 But anyway, so I gave him the book to be inscribed, and
6 he wrote something in there that remains an inspiration
7 to me.
8 MS. BRABBIT: What's that?
9 JUDGE MURPHY: Translated it would be:
10 "Much more is possible than most people realize." Sounds
11 better than that in German, but not being poetic, I'm
12 just giving a literal translation. Now maybe he wrote
13 that in everybody's book, but I've always taken it as
14 sort of a message. And this from a man that used that
15 diminutive and then asked me whether I was planning to
16 teach in a girl's school. Now, of course, in Germany,
17 you know, people get Ph.D.s and many teach in the high
18 school, gymnasium, so that is a much Qigher thing, it's
19 not quite as bad as it sounded, but I was quite put out.
20 Of course I didn't really know. I was confident I was
21 going to get some kind of job, but I didn't know what it
22 would be.
23 There was a wonderful art historian, I had two
24 minors when I was in graduate school, art history and
25 geography, that was in America, but there was a wonderful 0 111
1 professor and I took a course from him called The Face of
2 Christ, and now there's more like that that you run into
3 in museums and so on, but it was really fascinating, you
4 know, how the history of any particular image, it
5 happened to be Christ in this case, is changed as people
6 have different understandings and styles and so on, it's
7 really interesting. He was such an inspirational
8 teacher.
9 You didn't get grades in the German university
10 at this time. But you had a book that said what courses
11 you were enrolled in, you know, in case I had to prove,
12 or to try to get credit in some way, which I never
13 actually did, but I wanted to get that signed. And the
0 14 other students had reasons they needed to have it signed,
15 too. And this shows you what it was like being a
16 professor and students at the German university. I, like
17 many other students, very large class, went up to get our
18 books signed, and he signed a few and then he turned and
19 he ran. He ran down the hall and we all ran after him
20 but he outran us. And that was it.
21 MS. BRABBIT: Did he ever sign it?
22 JUDGE MURPHY: No. Maybe some of the
23 others tried to hound him, but you couldn't find these
24 professors. Professors are so high up, it's like the
25 pharaoh or something. 112
1 Another thing that was interesting about German
2 universities at that time, and may still be; if people
3 didn't like something the professor said, or didn't like
4 the lecture, they would slide their feet on the floor.
5 And it was a great technique because these are elevated
6 rows, there was like a table in front of everybody that
7 would curve around, the professor couldn't see who was
8 doing it. Gosh. If they liked things, they would stamp.
9 I took a course on the Third Reich, amazing
10 enough they had one there. It was a seminar, and it was
11 taught not by one of the professors but one of the people
12 that was teaching in a gymnasium. He had a Ph.D. and he
13 was working to become a professor. And that was a big
14 achievement for me, because you had to give a seminar
15 paper and deliver it in German.
16 MS. BRABBIT: And what was yours on?
17 JUDGE MURPHY: I don't remember the
18 particular topic, but it related to ~he. resistance to
19 Hitler.
20 MS. BRABBIT: So how many courses in total
21 did you take in '54 -- would it be '54 to '55?
22 JUDGE MURPHY: ~ can't answer that either.
23 I may have those in boxes, but then again I may not
24 because my mother threw stuff away. I'm sure you have
25 all your stuff organized and kept in a scrapbook. I had () 113
1 history courses that I'm not remembering the particular
2 title of. I took Italian.
3 MS. BRABBIT: While you were there. So you
4 had formal education in German, Spanish, Italian?
5 JUDGE MURPHY: And Latin.
6 MS. BRABBIT: And Latin.
7 JUDGE MURPHY: But, you know, learning,
8 learning Italian in German is a, you know, maybe not the
9 ideal way. I love the sound of Italian, though, I think
10 it's the most beautiful language. I took some kind of
11 anthropology, I can't remember the exact, that wasn't the
12 name of the course, it was more specific. It's been so 0 13 long since I thought about it. It was such a wonderful 14 year.
15 MS. BRABBIT: So if you could recap and
16 give us like one, two or three great life lessons from
17 that year; how would you phrase those? How would you
18 summarize those?
19 JUDGE MURPHY: Well, I left out part of the
20 way I spent the year. I received a lot of attention, had
21 quite a few dates, belonged to a little group that hung
22 out together, and Mainz is the center of Karnival. In
23 fact, when people heard I was going to Mainz, it was
24 Karnival, Karnival, and it starts in the fall, because
25 all these different organizations that march in a parade
\ __ ) 114
1 before Ash Wednesday, they had these events in the fall,
2 and there's huge drinking.
3 MS. BRABBIT: This is Karnival?
4 JUDGE MURPHY: Yes, huge event.
5 MS. BRABBIT: Is this a day event or -
6 JUDGE MURPHY: No, I'm telling you it's
7 months. It's real extreme in Mainz. It may not be that
8 much anymore, but it was so exciting, except when it got
9 to the very last things, they were depraved. So that's a
10 good life lesson.
11 I got to know the secretary to the Lord Mayor in
12 Mainz. She wanted to learn English, and so she had
13 applied at the University for somebody that she could
14 speak English with. So the woman that ran sort of the
15 foreign student office, it wasn't that organized, but she
16 contacted me and asked me if I wanted to do that. I
17 wasn't really interested in talking English to anyone
18 because I wanted to be talking German, but on the other
19 hand I said, okay, I would meet her. And I met her and
20 at first we spoke in English, but soon we were speaking
21 in German and it was interesting. She was a single lady,
22 but anyway I got invited to some events because she was
23 in the mayor's office, including the official celebration
24 of Karnival, and here were all these people in
25 responsible offices -- well, I won't describe what was CJ 115
(~ ' ! 1 going on.
2 One overpowering feeling I had was how
3 uneducated I was. Here I had graduated, you know, from a
4 good university, but the students at this time in Germany
5 had graduated all from the gymnasium, and they had
6 studied Greek, they had studied Latin, they had studied
7 history from the beginning. They were so, you know, they
8 graduated when they were 19, but the course of study was
9 so demanding that they were so much ahead of me in
10 history, and I just had this desire to go back and get a
11 deeper education. That was a very important thing,
12 because that was why I applied to graduate school from
13 there.
14 MS. BRABBIT: And so did you come back to
15 the states then the summer of 1955?
16 JUDGE MURPHY: In September.
17 MS. BRABBIT: In September of '55.
18 JUDGE MURPHY: Before school started.
19 MS. BRABBIT: And then take us into that
20 transition, Judge. What happened at that time? What did
21 you decide to do?
22 JUDGE MURPHY: Well, I moved into Sanford
23 Hall and had all these freshmen girls to contend with.
24 It was just like going back to the Luftwaffe barracks. I
25 was up on the third floor under the eaves. You know, j"---/ / 116 n 1 they were all being noisy and came to you during the
2 night, and not the ideal thing to be pursuing the serious
3 studying that I intended to do. And then I told you that
4 I got this other job, but I enrolled in courses, I
5 started taking -- as I say, I had a major in history and
6 a minor in geography and art history, and I had, I did
7 wonderfully in all the courses. I did all the course
8 work for a Ph.D., but my bete noire at that time was
9 papers; because I was such a perfectionist, it was really
10 hard for me to finish anything. And I joke sometimes
11 that if I hadn't taken another turn in life, I would
12 still be working on my Ph.D. I had a thesis topic that I
13 was working on. I sidestepped the master's degree
14 because of the paper problem. I loved graduate school, 0
15 it was exciting.
16 MS. BRABBIT: What was your thesis topic?
17 JUDGE MURPHY: The early monastic movement,
18 how it was organized. The origins are in the Near East,
19 of course. There were some people that were just hermits
20 or, I wouldn't say organized hermits, and St. Benedict,
21 of course, made a huge difference with the rule, the
22 constitution so early in time, and it's still what they
23 go by.
24 MS. BRABBIT: Was yours a two-year graduate
25 program, Judge? 0 117
1 JUDGE MURPHY: No, because I didn't go for
2 a master's.
3 MS. BRABBIT: You finished all the course
4 work for a Ph.D.?
5 JUDGE MURPHY: Right.
6 MS. BRABBIT: Okay.
7 JUDGE MURPHY: I was in graduate school at
8 the University for three years.
9 MS. BRABBIT: And during that time, I have
10 to check my notes, but that's when you picked up the
11 teaching assistant position, is that right?
12 JUDGE MURPHY: Right. One year with 0 13 Deutsch and two years with Wolf. So all I would have had 14 to do to finish would be to take the prelims and get the
15 thesis done.
16 MS. BRABBIT: Tell us about that. Your
17 path took you a different direction than doing the
18 prelims and doing the thesis. And what came about where
19 you decided to take a different course.
20 JUDGE MURPHY: Well, the last year I was
21 there I got increasingly it was my own fault in a way,
22 because I had been going backward. When I was an
23 undergraduate what I was really interested in was 20th
24 Century German history. I came back and I focused on
25 19th Century with my advisor, 19th Century German 118
1 history, and then I took medieval history and I got real
2 interested in that, so I went back and I was working on
3 various projects in that, and so I just felt like I was
4 being cut off from real life. But it was my own fault in
5 a way because the further back you go' the more esoteric 6 it becomes. I was frustrated. I didn't know really what
7 I wanted to do exactly.
8 I had -- and you would laugh if you think about
9 what I thought about trying to get into at this point
10 because it's so different. I've always had a passion for
11 movies, and I pursued that as a hobby, film history and
12 films, and I thought to myself, wouldn't it be 13 interesting to be a film editor. I never did anything to 0 14 pursue it, but just to show you that I was feeling some,
15 being divorced from real life.
16 But then what happened is I got married. This
17 occurred, I mean I got engaged unexpectedly in the latter
18 part really of, well, it could have been beginning of
19 April maybe of '58, and I got married in July.
20 MS. BRABBIT: Of 1959?
21 JUDGE MURPHY: Of '58.
22 MS. BRABBIT: Of 1958. So you were engaged
23 in April, married in July?
24 JUDGE MURPHY: Could even have been engaged
25 in May, but a very short time. 0 119
;~ ' I 1 MS. BRABBIT: So tell you how you met your
2 husband then.
3 JUDGE MURPHY: It's 5 minutes to 3.
4 MS. BRABBIT: Shall we save that for next
5 time?
6 JUDGE MURPHY: I can tell you. He was a
7 teaching assistant, so I knew him from the time -- I
8 can't remember if he was already working that first year.
9 We were in different areas, but I knew who he was. And I
10 remember one time when the group of teachers that I hung
11 out with, all working on Ph.D.s, we would hang together
12 all the time, and we would read the Sunday newspaper () 13 together on Saturday night, it gave rise to a lot of 14 talk, everybody was poor, and there was talk about, you
15 know, a man in space, and the person that I was going
16 with, maybe not at that point intending to get married, I
17 don't remember, but said -- we thought who, who could
18 ever do that, you know, the idea of it, because it was
19 so, seemed to foolish, foolhardy. And Reed said, I know
20 who would do it. Murphy. And he had been climbing the
21 Himalayas and everything and lost half his toes, and we
22 sort of knew that, didn't know too much about it, so
23 that's Murphy.
24 MS. BRABBIT: And Mr. Murphy's first name
25 is? 120
1 JUDGE MURPHY: Joe. And he's in Yemen
2 right today as we talk. Anyway, so one year we got new
3 offices, teaching assistants you didn't have an office to
4 yourself, you shared the office space, and we were moved
5 to a different, I was moved to a different room in Ford
6 Hall, and there were several desks in that room and mine
7 was facing Joe's, which was actually a good thing because
8 he wasn't there very much. He lived in town and he never
9 spent much time there. He didn't hang out with the
10 future professors of the world. Rather he hung out with
11 this visiting guy, visiting teaching assistant from
12 Australia named Ian. Joe and Ian ate lunch together
13 every day over by the Harvard Market, the restaurant
14 that's not there anymore, and one day he asked if I would
15 like to join them, so I did. It was really interesting,
16 they were talking about everything in the world, it
17 wasn't just this historian and that historian, like our
18 little group. I didn't eat every day with them, but I
19 did a fair amount of time. It was very interesting,
20 enjoyable, very broadening. And then one day Ian was
21 sick, and so I went with Joe and he said -- meanwhile he
22 had learned that I was interested in architecture and a
23 lot of other art. And he said, you know, there's an
24 exhibit at the Minneapolis Institute of Arts. He knew I
25 was going with Reed. He said there's an exhibit at the 0 121
1 Minneapolis Institute of Arts on Minnesota architecture,
2 would you like to go look at it on Saturday morning?
3 That's why that's relevant, you know. And I said, yeah,
4 I would, because our group never did anything, we were
5 studying all the time.
6 (End of session.)
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15
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25 122 () 1 (April 11, 2006.)
2 JUDGE MURPHY: Well, we spent a couple of
3 hours at the exhibit looking at these examples of
4 Minnesota architecture. One of them happened to delight
5 me; it was a series of cabins at Detroit Lakes, a little
6 cabin resort called Fairyland. That happened to be where
7 my family had frequently gone during the summer for a
8 week, much to my embarrassment -- the idea of going to a
9 resort called Fairyland -- but, anyway, it was
10 unbelievable. Here it was in this exhibit on Minnesota
11 architecture, a place that I had always been humiliated
12 in going. Joe very patiently looked at all the exhibits 13 and professed interest in it. This is only relevant in 0 14 later life, you know.
15 Then we went outside, and it was really the
16 first nice day, and he said, you know, my classmate owns
17 that restaurant across the street there. At that time it
18 was a motel and restaurant, it was a very nice place,
19 Fair Oaks. Later, as the city around it disintegrated,
20 it became a haven of drug dealers and prostitutes. But
21 at this time it was a very, very fine place. He said
22 would you like to get something to eat? So I said sure.
23 So we went over there and we had lunch and talked about a
24 lot of different, interesting things, and then we left
25 and he said, you know, it's such a nice day, would you u 123
1 like to go for a ride in the country? That seemed like a
2 very fine idea, and so I did. At any rate, I didn't get
3 home until about midnight, or it could have been after,
4 stopping at this place and that. There was one old
5 roadhouse along the Minnesota River, I remember. It was
6 one of those serendipitous times where you just sort of
7 stumble upon interesting things.
8 So we sat outside for a few minutes before I
9 went in, I was living with a roommate, and all of a
10 sudden something happened that never happened any other
11 time I was living in this place for a couple years. A
12 group of men came tramp~ng down the street singing "On 0 13 the Road to Mandalay," and it was sort of uncanny. When 14 I had been in German university towns, the students would
15 march in the street and sing and so forth, but this was
16 most unusual. And Joe said, I've always wanted to go to
17 Mandalay, and I'd like you to go with me.
18 Anyway, that was a very successful evening and I
19 enjoyed it very much, but I had this commitment to this
20 other individual. And he was only three weeks away from
21 taking his prelims, Ph.D. prelims, so it was kind of a
22 conflict. Anyway, it would have been the first week of
23 May, we went over to the part of Wisconsin where he was
24 from, he wanted me to meet his relatives. Then when we
25 were sitting down by the Mississippi River across from 124 0 1 downtown St. Paul, he asked me to marry him, so it was a
2 very short courtship.
3 MS. BRABBIT: And when was the wedding?
4 JUDGE MURPHY: July 24th.
5 MS. BRABBIT: Tell us about the wedding.
6 JUDGE MURPHY: Oh, I was in an iconoclastic
7 mode; I thought weddings were a lot of pomp and
8 circumstance and show, so I wanted to get away from that.
9 There was a Franciscan priest who was a friend of mine
10 who was also working on a Ph.D. in history at the
11 University of Minnesota, and we asked him to do the
12 wedding. And then I actually wanted to get married in 13 St. Olaf Church, which was the church I attended. When I 0 14 went and asked about that, they said, no, you can't get
15 married here because you don't live in the geographic
16 area that's covered by the parish.
17 I'm still mad when I think about this because --
18 I mean I accepted that at the time, and I went back and
19 got married in the church that I had attended as I was
20 growing up, St. Luke's. But a couple months after we
21 were married, Hubert Humphrey, Skip Humphrey, got
22 married; and they got married in that church and they
23 didn't live in that parish. That's what makes me mad. I
24 dislike unequal treatment.
25 But at any rate, I didn't want to have 0 125
1 invitations or anything like that. I picked Thursday
2 morning, and I wanted to get married in the lower church.
3 There was a chapel, I suppose it still exists now, but
4 it's very nice and it was almost like an orthodox
5 atmosphere, you know, dark with sort of icons, but the
6 pastor at St. Luke's said, look, you're already getting
7 married on Thursday, this is going too far, you can't get
8 married in the basement. So it was a very small wedding
9 but very personal, my friend Nancy Rotenberry, who had
10 gone on SPAN, sang. We didn't have any formal
11 invitations, just sort of word-of-mouth.
12 Originally I was planning a lunch afterwards but 0 13 it just seemed like too much and it wasn't really because 14 I wanted to do it, it was because I thought Joe's family
15 wanted to do it, somebody would expect something. And he
16 said you don't have to do it, so we didn't do anything.
17 So very small and understated.
18 MS. BRABBIT: Was Joe raised in the
19 Catholic traditions?
20 JUDGE MURPHY: Yes.
21 MS. BRABBIT: And his family is from the
22 Minneapolis/St. Paul area?
23 JUDGE MURPHY: His mother was from New
24 York, from Brooklyn, and she was a director of something
25 called the Carroll Club in New York City, which was a 126
1 club for women, and there were residents there, it was a
2 lot of businesswomen, and there were recreation
3 facilities. One time when his father was in New York he
4 met her, but his father was from this western area of
5 Wisconsin.
6 MS. BRABBIT: Where did you and Joe live
7 after you were married?
8 JUDGE MURPHY: We had a tiny, tiny
9 apartment in an old house that was converted into
10 apartments; 1914 Iglehart.
11 MS. BRABBIT: And is that in St. Paul,
12 Judge?
13 JUDGE MURPHY: Yes. Not too far from the
14 river, not too far from the University.
15 MS. BRABBIT: Did you take a honeymoon?
16 JUDGE MURPHY: Yes, five weeks. We drove
17 to Mexico.
18 MS. BRABBIT: Tell us about that.
19 JUDGE MURPHY: It was great. We tried to
20 follow the river, Mississippi, as closely as we could.
21 This was before a lot of the freeways and things, but we
22 visited a lot of the river towns along the way and went
23 to New Orleans, went down through Brownsville. Mexico
24 was fascinating, and driving through, over the mountains
25 and into some of the old colonial towns and visiting 0 127
1 various ruins, quite a lot of museums, potters. Mexico
2 is such a colorful place, and I was very interested in a
3 lot of art, the great muralists and the history of Mexico
4 freeing itself, and then with the Napoleonic era, and
5 then the revolution that got portrayed so wonderfully in
6 these murals.
7 MS. BRABBIT: What was your favorite spot
8 in Mexico?
9 JUDGE MURPHY: Well, maybe it was Oaxaca.
10 There were so many places that were beautiful though. If
11 I had to pick one, though, I would say Oaxaca. There
12 were wonderful ruins there, Monte Alban, which is on top 0 13 of a mountain and had many buildings that were quite 14 intact, had tunnels between them and decorated friezes on
15 them, and a place called Mitla, which was on ground
16 level, but had very sophisticated friezes, almost like
17 the kinds of designs that you find on Greek pottery, and
18 very much Indian art and artists at work in town in old
19 colonial buildings, still quite a small place. San
20 Miguel we looked at, too, which had the colonial aspects
21 and the artist aspects, not so much of a tie with the
22 Indian culture, and in Mexico City there was such
23 wonderful things to go and look at.
24 MS. BRABBIT: So your honeymoon would have
25 taken you through August if you were gone for five weeks? 128
1 JUDGE MURPHY: Right, we got back in
2 September, and shortly after that I realized I was
3 pregnant. Joe went back to the University, and the place
4 that we were living I told you was really small; there
5 was a little bedroom and a little living room and then
6 like a kitchenette, almost like in a trailer but where
7 you could have a little table at the end, and the
8 landlady didn't allow children. She said that we could
9 stay there for three months after the baby was born. The
10 baby was born in June, and there was a little screened
11 porch in the back, so that gave us a little room to put
12 stuff out there. It was very tiny. 13 We moved from there to a duplex by the 0 14 intersection of St. Clair and Cretin, very close to the
15 University of St. Thomas. On the northeast corner there
16 was one of those little neighborhood grocery stores, they
17 had fresh meats and everything, but they were not in the
18 best of, they had fresh vegetables and meat, but not what
19 you would really want to buy unless you were desperate,
20 but I'm just telling you that for the size of the little
21 store. It was a whole first floor, and then above it
22 were two apartments, and then we lived in the duplex next
23 door to that on the second floor. We lived there for two
24 years until the nesting instinct overcame me.
25 MS. BRABBIT: Tell us about the birth of 0 129
1 your son; what day was he born, and if you could give us
2 his full name, please?
3 JUDGE MURPHY: Michael Joseph Murphy. He
4 happened to be born on the day of the final exam in
5 modern European history, so my husband dropped me off
6 this is one of those little sore points you still
7 remember -- at the hospital and left to go pass out blue
8 books. It wasn't like he was the only one. And he
9 didn't get back until after Michael was born. We had
10 been unable to agree on names except for girls. If it
11 was a girl we were going to call her Anne, which was his
12 mother's name. I was going to spell it with an E, her's 0 13 didn't have an E. So there was an agreement if it was a 14 girl. But I wanted to name the baby Michael for a boy
15 and he didn't like that name, and my mother-in-law, this
16 is all of the evidence about how you shouldn't reveal
17 names, you know, very opposed. She said this would be a
18 terrible, terrible burden to go through life with the
19 name Michael Murphy; it sounded really low class to her.
20 She thought Clark would be a nice name, and there was
21 some other name like that that I thought was an awful
22 name, real lofty name, you know. Anyway, the reason this
23 is sort of relevant is because actually I had a very hard
24 labor, and my father appeared near the very end. I
25 mentioned he was a doctor. In those days you didn't have 130 n 1 people in the delivery room or anything, even if they
2 were your father, I don't think he was, but I really
3 didn't have any kind of pain relief so I was pretty
4 miserable at the time he came. But the baby was born,
5 and not too long after that Joe got there, and he came
6 and he said, "I went and I saw Michael," in the room
7 where the babies were. So the guilt feelings, no doubt,
8 had led to his acquiescence.
9 MS. BRABBIT: And so Michael Joseph Murphy.
10 JUDGE MURPHY: Right.
11 MS. BRABBIT: Give us the date again,
12 Judge? 13 JUDGE MURPHY: June 9th, 1959. Remember we 0 14 were married July 24th, 1958. Well, I had never been a
15 person that gravitated towards little kids, taking care
16 of, never had anything to do with babies, although in
17 passing commenting one was cute, so this was quite a
18 challenge, this new experience._ Be was very demanding,
19 cried a lot, so you didn't know what to do. It was a
20 worry, you know, and it's interesting, because his
21 personality is a demanding personality.
22 My second son, who was born in 1962, was the
23 most easygoing person, just content to, you could put him
24 in the playpen with a bunch of pots and pans and you
25 would go off to do whatever you had to do and you would 0 131
~·~ I ) 1 come back and he would be looking at them. What a
2 difference.
3 MS. BRABBIT: Judge, tell us about the
4 first couple of years with Michael.
5 JUDGE MURPHY: Well, I was nursing Michael
6 and then Joe's partner, this is a mountain climbing
7 partner, Tim Mutch, who became, maybe already was a
8 professor of geology at Brown University, proposed going
9 to British Columbia to do some climbing in Glacier Park
10 in British Columbia. They had jointly led an expedition
11 into the Hindu Kush. Before Joe started as a teaching
12 assistant at the University of Minnesota, after he 0 13 graduated from Princeton he went into the Army. As soon 14 as he got out of the Army they led this expedition to
15 climb an unclimbed peak called Istoro-o-Nal in the Hindu
16 Kush, a real high mountain, and they made what everybody
17 considered at the time to be the first ascent. Later it
18 became questioned whether the actual point that they got
19 to was the main summit or not. But, nonetheless, on this
20 they had to have, they organized it themselves, getting
21 the porters and collecting clothes for them and trying to
22 gather food for this expedition. And they didn't have
23 very good equipment for themselves or for the porters,
24 and Joe froze his feet and he lost five toes -- I don't
25 know whether I told you that before -- and local people, 132
1 I mean this is an area of the world that's in hot dispute
2 these days. Some local people treated him and he got
3 back here, and I think they were amputated at what now is
4 Abbott, it was then Northwestern. So I knew that he had
5 had this not-good experience, you know, so I wasn't too
6 enthused with this idea, but on the other hand if we went
7 we would be camping, you know, in a tent and we would be
8 in quite some beautiful country that I had never seen,
9 but we couldn't take the baby. My parents said they
10 would take Michael so I weaned him, and this was pretty
11 exciting to be going.
12 It was a long trip because we went one way, one 13 direction up to British Columbia and lived in a little () 14 cabin with the Mutches with a potbellied stove and so on.
15 This was really a rugged area at the time, there weren't
16 paved roads. I don't know what it's like now. And then
17 we came back and we parted with the Mutches at some point
18 and we went to Jackson Hole, and the Tetons are just so
19 beautiful. In spite of what happened, I still have a
20 great love for them. But Joe said -- well, I left out
21 when we were going to go on our honeymoon he took me to
22 this boot store and said he wanted to get boots for me
23 with these treads and stuff, you know, like
24 mountaineering boots. I said I'm not going to do any
25 climbing, but he said, no, we might be walking in the 0 133
1 jungle and there could be snakes. So then when we had
2 gotten down to Mexico, he wanted to go -- this is all
3 related but it may not seem so apparent. He wanted to
4 visit the Mexican Alpine Club, and so he made an
5 appointment, we met them at some kind of bar, these guys
6 from the Mexican Alpine Club, and they didn't speak much
7 English. I spoke, at that time, not too bad Spanish, but
8 I didn't know any of the language for climbing as far as
9 routes or equipment or whatever, and so I was very
10 worried about this because Joe kept telling them he
11 wanted them to draw a map on a napkin from this bar the
12 best route where you could avoid avalanche. And these
13 people were telling him that this one area was avalanche,
14 and Joe didn't seem to care about that. He kept wanting
15 to know how we would go up that part.
16 So when we were in Mexico, then he wanted to go
17 out to Popocatepetl, which is a big volcano there, very
18 high mountain, beautiful mountain. And he said we'll
19 just go up a ways and you don't have to go farther than
20 you want or whatever, and so he takes all the gear, he's
21 got the mountain axes and the crampons and everything,
22 and we go up to a cabin that's up high that climbers use
23 and we stayed there, and then we set out from that and we
24 pitched our tent right at the bottom of where the snow
25 was. And this is really high because you were already 134
1 high in Mexico City, and this is a lot of work getting up
2 there, but it was really cold and windy and so we tried
3 to cook inside the tent and we got really sick. He had
4 bought what he thought was white gas that you can use
5 inside a tent but it apparently wasn't, and we got sick
6 so then we broke camp and went down. Boy, was I
7 relieved, because I didn't, I was worried about this
8 event.
9 So now we're back in Jackson Hole and Joe says,
10 well, let's go, let's do a little climbing, and so he
11 went and we registered, and I think we registered for the
12 Middle Teton or something, some part of that, and I had 13 to put down that I had been in British Columbia, I had l) 14 done a little bit, and this Popocatepetl, it was this
15 fraudulent deal, you know, but I put down the little bit
16 I had. So it was okay, we set off, we had been staying
17 at this climber's ranch there. Anyway, we camped out at
18 the base of the Tetons up in the hills, it was really
19 pretty, and then we started the more difficult part.
20 Then we got to one place where there was a raging, wide
21 stream and you had to jump from rock to rock to get
22 across it, and he helped me over these rocks but it was
23 very difficult for me. Then we got up quite high and it
24 was really beautiful and it was as far as I was going to
25 go. And this guy came along that was hiking and he asked C) 135
1 Joe if he wanted to do a little climbing, so Joe said
2 would it be all right? And I was worried, but on the
3 other hand I was so relieved that I didn't have to do
4 more and so I said okay, and there was a little stream
5 where I was and there was some caves. This all comes
6 about from asking about what it was like with the baby.
7 So then they told me there was a chimney of some
8 kind, I don't remember what its name was, that they were
9 going to climb, and off they went. And this maybe was
10 around noon. And hours passed and they didn't come back
11 and, of course, you get more anxious and more anxious,
12 and then the light began to fade, and it was hard not to
13 panic because I was worried about Joe, but I was also
14 worried about myself. And then I saw them coming, and I
15 knew that something was wrong by the way Joe was walking.
16 He was walking but it was a real odd way of walking and
17 he was really feverish and everything, and it turned out
18 that he had broken his back but it wasn't clear what had
19 happened. But this man, I don't remember his name, but
20 he helped Joe get in this, you know, we didn't have our
21 equipment and stuff because it was down at the tent
22 remember we had set off that morning in this cave, and
23 he said he would sleep in this other cave and as soon as
24 it was light he would go down to get help.
25 Unfortunately it was Labor Day when a lot of the 136 0 1 rangers are on, you know, it's a holiday. And he had a
2 can of -- we probably had some little, light dried food
3 or something. Joe believed in going very light, like
4 oatmeal or something, maybe some nuts or something. But
5 he had a can of Vienna sausages that he shared with us,
6 and nothing had ever tasted better to me in my life.
7 So Joe was sort of incoherent, which was a cause
8 of worry, and I could go get him some water from the
9 stream or put a cold towel on his forehead, but other
10 than that there wasn't anything I could do, and he was
11 clearly in terrible pain. And I would do that, you know,
12 and then I would go out and sit on this little ridge 13 there and look down and see nothing, and it was just () 14 awful because I knew he was seriously hurt and didn't
15 know what to do, and what if this, I didn't know this
16 person, would anybody come, you know, would he really
17 have gone to get people, if it was hard to get them or
18 whatever. And then finally, I think it was 1:30 in the
19 afternoon roughly, I mean it was a long time from the
20 first light, because in the summer it's early, you know,
21 especially up in the mountains, I saw people slowly
22 coming up, very slowly. And what had happened is they
23 had to form, you know, find people because they weren't
24 all on duty because of it being a holiday.
25 So they got up and it took them quite a while 0 137
1 from when I first saw them, but I saw they were there. I
2 mean that was one of my worries had been, too, that there
3 was nothing I could do because I was in a place from
4 which I couldn't get down by myself.
5 Anyway, they came and they had a stretcher thing
6 that they put Joe on and we set off. And, of course, I
7 hadn't really focused on this before, but they assumed I
8 was one of them, you know. I mean I was up there. And
9 so it was really hard for me to keep up because it was
10 difficult terrain. But then when we got to this broad
11 stream where you had to jump from rock to rock, I didn't
12 know what to do. I wasn't as assertive then as I am now, 0 13 because now I would have gone to one of them and said, 14 look, I can't do this, I need help all along the way, but
15 I didn't. But one of the rangers, and they were
16 naturally focused on Joe, but one of them did perceive
17 that I wasn't going to be able to make this, and he came
18 and he helped me across. He had a helmet. with his name
19 on it on the front, and then that winter he was killed.
20 I saw this in the American Alpine Journal. Every year
21 they have a special issue on mountaineering accidents in
22 that year, and he was on patrol and he had been crossing
23 one of those streams and fell through the ice and was
24 killed. And at the time I still remembered his name and
25 I had thought what a blessing, you know, it was like a 138
1 guardian angel all of a sudden appearing.
2 Anyway, we got down and they took him to the, at
3 that time in Jackson, Wyoming there was just a little log
4 cabin hospital, there's a big one now. And so I went, I
5 got a ride to the tent camp where we had our big tent.
6 Somebody must have gotten that other tent down for us,
7 the one that was up in the mountains. But anyway, I went
8 and took the other one down and closed the camp. I don't
9 think I went, did it right away, I think I went to the
10 hospital first, but he was in the hospital for a week
11 there. It was a big, old tent, you know, they were much
12 harder, you had to tie them onto trees and everything, it
13 wasn't with those rods and everything; I just remember it
14 being very difficult. It would have been later in the
15 week. Anyway, they discharged him after. a week, but he
16 was in such pain and they said we had a Chevrolet car
17 where the passenger seat could be put back, you could lie
18 down. You could also do the driver's, but you couldn't
19 do that when you were driving. And so they said he needs
20 a back brace, it was broken way down at the bottom of his
21 back, and the closest you can get one is Casper, Wyoming.
22 So we drove to Casper and he was fitted for one, they
23 made one, and then drove back all the way. I was driving
24 of course, and he was reading a book on geology and
25 pointing out peneplains and everything else. So then we 139
1 got back and he was confined to the house really for a
2 year in a lot of pain, and so in addition to this little
3 baby I had this wounded husband. That was probably the
4 hardest year I ever had.
5 I'm trying to think if that second year we lived
6 in, I think that second year I don't know. I'm trying
7 to think when I started getting active in the community
8 of activities. It may not have been until we bought our
9 house in 1960.
10 MS. BRABBIT: How long were you in
11 St. Paul, Judge?
12 JUDGE MURPHY: Two years. We were only in
13 that other place from September to -- well, we were there
14 one year. The duplex, the unpleasantness about the
15 duplex was that the people downstairs, they were Italian,
16 they fought all the time and they yelled, and it was
17 really very unpleasant because it affected your whole
18 environment.
19 MS. BRABBIT: How long were you gone on the
20 mountaineering trip?
21 JUDGE MURPHY: Well, it was scheduled to be
22 three weeks but it obviously got extended, probably a
23 couple weeks in all.
24 MS. BRABBIT: How did he fall? How did
25 that incident occur? 140
1 JUDGE MURPHY: The carabiner came out. Do
2 you know what a carabiner is? Well, you put a, I mean
3 they've got fancier equipment now than they had then,
4 this was 1959. When there aren't handholds and stuff and
5 you're climbing on real sheer rock, you put a spike, a
6 piton, you pound it into the rock, and then they were
7 descending. They had climbed to the top of this chimney
8 rock, or whatever it was, it's a well-known climbing
9 target there by the Grand Teton, and they were
10 descending. So you put the carabiner in that piton and
11 then you rope on the carabiner and you go down the rope.
12 MS. BRABBIT: And that came loose?
13 JUDGE MURPHY: Right, the piton must have
14 come loose. It's been so long since I've thought about
15 it.
16 MS. BRABBIT: How far did he fall?
17 JUDGE MURPHY: Fortunately only 30 feet.
18 He fell onto a ledge. But if he hadn't hit the ledge --
19 well, anyway, so this was a frustrating time because I
20 was pretty much confined, you know, other than going to
21 the grocery store. I mean I would take Michael out in
22 the stroller and walk and stuff, but a difficult time.
23 MS. BRABBIT: And then in 1960 you
24 purchased a home?
25 JUDGE MURPHY: Right. 0 141
1 MS. BRABBIT: Tell us about that, Judge.
2 Where was the home located?
3 JUDGE MURPHY: 2747 Upton in Minneapolis.
4 Joe had grown up, well, partly on the farm they had in
5 Wisconsin, but also in the city, but they had always
6 rented. They owned this farm near Hammond, Wisconsin.
7 They had a beautiful, wonderful old house and a
8 three-hole golf course laid out by the same guy that did
9 the Minikahda Golf Course, very nice. He had his own
10 pony, and he had a very happy time out there on that
11 farm, but they only rented in town, different houses in
12 Kenwood. So he wasn't thinking it was necessary to buy
13 anything, that's why I'm saying about my nesting
14 instinct, and I wanted to get out of that atmosphere with
15 the yelling, you know. We wanted to have another child,
16 but I thought it would be best to get the nest first, so
17 I went and looked at houses and stuff and then would get
18 him to go along, but he said it had to be in Minneapolis.
19 Because one other thing that happened in this time that
20 we were living there after the year when he was just
21 confined to the house, he was very, very thorough in his
22 researching, we had that in common, really, two
23 perfectionists, and his mother was concerned, and one of
24 her friends was a very good friend of a man that had this
25 investment house in Minneapolis, and they hired Joe as a 142
1 securities analyst. So did that happen when we were
2 already in the apartment or was it when we were already
3 over on 2747 Upton? What made me think about that is
4 because he did want to be in the Minneapolis phone book.
5 But that could have just been his old friends were, you
6 know, Minneapolis-based. I don't remember these exact,
7 little things. So that narrowed it down some.
8 One of the ironies of life is where I would have
9 loved to have lived was in North Oaks, and now both of my
10 sons have houses there, which is nice. But that didn't
11 make the grade because it wasn't Minneapolis. And then,
12 you know, houses weren't, the prices were not like now,
13 but nonetheless the sticker shock was great. So not only
14 was there this resistance to buying, but then when I
15 would come back with these prices, and then he would talk
16 to somebody and they would tell him, oh, you can get a
17 house for $15,000 that's very nice, and I would go look
18 at some and I didn't like them. But we bought this house
19 for $25,000, it was twenty-four-something, and that
20 house, which had had some renovation on it and some
21 additional building, was just on a page in the New York
22 Times where it said, "What you can get for 1. 2 million,"
23 and there was our first house. This is a little, white
24 colonial. At that time it had black shutters, two
25 beautiful trees, a birch tree and a beautiful maple tree 0 143
1 in the front. Those trees are gone. It looked so much
2 nicer then, from the front anyway, but the space that was
3 added would certainly have been needed.
4 MS. BRABBIT: Did you find this home?
5 JUDGE MURPHY: Yes. But I also found some
6 other ones. Well, I'm thinking that I'm beginning to
7 conflate looking for houses after when we were going to
8 sell that house but, yeah, I did. And he actually had a
9 great sense of neighborhood from the standpoint of the
10 value, property value, because there was a house that was
11 just a block away really that had the advantage of having
12 a bathroom on the first floor, too, and it had a little 0 13 bit more space, like in the kitchen. Because with a 14 child, you know, you don't want to have them in the
15 dining room all the time. The other house didn't. But
16 he said, no, two doors away from that there were some
17 unattractive apartments and stuff on the end, a big
18 traffic thing, railroad tracks, and I was just looking at
19 the house, you know. But he was right from the
20 standpoint of the value of it.
21 So we bought that house and we moved in there
22 and we had the second son. And while we were there I
23 think that I had gotten, I know when I was in St. Paul I
24 had joined the American Association of University Women,
25 they had a very nice clubhouse, they probably still do, 144
1 on Summit Avenue. I got active in that and went to the
2 meetings and programs that they had. I think I may have
3 also participated in the League of Women Voters over
4 there. But, anyway, when I got over to Minneapolis, then
5 I got involved in the League of Women Voters and the
6 Junior Women's Symphony Orchestra Association, Junior
7 WAMSO, and the Arts Forum at the Minneapolis Institute.
8 MS. BRABBIT: Is this before your second
9 son was born, or did you really get involved in community
10 activities after your second son?
11 JUDGE MURPHY: Well, I started before, and
12 in addition to belonging to these groups I got active in
13 committees, you know how life goes, and so by the time,
14 well, we moved -- well, what happened is that when John
15 was born in 1962 I had a severe attack 0£ rheumatoid
16 arthritis. I didn't recognize what it was, but I was
17 just stricken, I could hardly lift my arms, and I got as
18 skinny as you, and I ached, I just hurt. Trying to do
19 anything was so difficult, and I had the two children,
20 and Michael has always been very high energy and a little
21 baby, you know, needs a lot of attention, so that led to
22 the diagnosis that I had this disease.
23 I think probably I had had it earlier because I
24 had had passages where different joints had gotten
25 inflamed and giving a lot of trouble, but you tend to 0 145
1 think of it as just some sore part. So we lived in a
2 house that didn't have a bathroom on the first floor and,
3 of course, when you're a housewife with little children
4 you're in the kitchen a lot, and it became very
5 difficult. And the fact of not having any room to eat in
6 the kitchen, those were the things that were the most
7 difficult. So I went out again looking for houses, but
8 now I was looking at, you know, something where we could
9 stay, period. And there were some very interesting
10 houses I looked at; it was fun. Joe really wasn't
11 persuaded that we really needed to move. There was one
12 in Edina that was made out of gray stone that was on this 0 13 creek there. It was about, I'm trying to think now, 56th 14 maybe? What's the name of that creek that goes by there?
15 It was quite pretty, there was woods and stuff.
16 MS. BRABBIT: Minnehaha?
17 JUDGE MURPHY: I wonder if that is
18 Minnehaha. I don't think so. I liked the house a lot; I
19 wasn't too enthused about the location. And, of course,
20 Joe wasn't either, because he was working downtown and
21 that's a long way. Then there was another house I liked
22 that was over on Cedar Lake. There was a little part of
23 Cedar Lake where the houses front right up on the water.
24 The name of the street is -- I mean Burnham Boulevard
25 does that, too, but there's a big, steep cliff, ·but these 146
1 houses you could walk right out to the water. I can't
2 think of the name right now. There was a house there
3 that some friends of mine now have that I liked because
4 it had a bedroom -- in addition to the living room and a
5 bathroom on the first floor, it had a bedroom on the
6 first floor.
7 And then there was this house that was put up
8 for sale by the Buehler Corporation, a Swiss company that
9 owned it, that's on Lake of the Isles. That's the house
10 we bought, and it's seven minutes from downtown. It's
11 really good and the lake is really nice; it's been a nice
12 place to live. 13 MS. BRABBIT: And this is the home you're 0 14 in now?
15 JUDGE MURPHY: Right.
16 MS. BRABBIT: And that purchase, Judge, was
17 in 1960?
18 JUDGE MURPHY: ' 6 5.
19 MS. BRABBIT: 1965.
20 JUDGE MURPHY: Joe thought it was more
21 extravagant than what we should do and was quite peeved
22 about it, which of course, you know, he always likes to
23 make it sound like I was the one that, in teasing,
24 dragged my feet.
25 MS. BRABBIT: So you mentioned that Joe was 147
1 working downtown at this point in time. Tell us briefly
2 what he was doing, where he was working, and what he did
3 after he was a teaching student.
4 JUDGE MURPHY: Well, he was working at
5 Woodard-Elwood at first, which was this investment house,
6 they had public offerings, they sold stock. It was a
7 small one. They had maybe about 23 brokers, investment
8 people, and they hired him as a securities analyst. So
9 he was analyzing for value, you know, and Joe has always
10 been very, he taught himself statistics but he's always
11 been mathematically inclined, so he was really a real
12 pioneer as far as seeing what you could do with () 13 statistics in stock analysis or investment evaluation 14 and, of course, when you're pushing new things, you run
15 into resistance. But he did that, he reorganized some of
16 their things and so on, and then he got an offer from
17 what now is Wells Fargo Trust Department to come over
18 there. It was then Northwestern Bank, and that morphed
19 into Norwest Bank which bought Wells Fargo and then
20 adopted the name of Wells Fargo. He was a vice president
21 of the bank there, and while he was there he put in, over
22 resistance of everybody, got the place automated. Now,
23 of course, this sounds like how could anyone have fought
24 it. He inaugurated the use of statistical methods to
25 value investments. He's written a lot of articles and 148
1 books on this subject; on bonds, on interest rates, on
2 evaluation of the stock market, stock market probability,
3 et cetera.
4 -Anyway, from the standpoint of me, now by 1966 I
5 think I was on the board of the Minneapolis League of
6 Women Voters, and in those days, I mean the League is a
7 wonderful organization, it's been very influential in
8 this country. I was president of that from '69 to '71, I
9 think, and on my board, when I think of the women that
10 were on my board and what they later came to do; they
11 were majority leader of the house, state house, they were
12 chair of the Board of Regents of the University of 13 Minnesota, deputy mayor of Minneapolis. The two women 0 14 that I had as the co-chairs of our housing project, which
15 was for low-income minority housing, they developed
16 Brighton Corporation. First they did low-income housing,
17 then they morphed into what it's been doing now is the
18 highest end, changing the lofts that are along the river,
19 and I could go on. Suffice it to say that these were
20 very well-educated women who weren't working -- see,
21 there was a difference in the time -- who wanted to use
22 their minds. A couple had been on the Park Board. It
23 goes on and on if you really want to go into all of this.
24 And the League was a perfect way to do it because there
25 were important issues and you chose the issues you were () 149
1 going to do and you did all the research, you did the
2 development, and we did some things that were quite
3 exciting.
4 I put out something called Minneapolis Works For
5 Equal Opportunity, which evaluated the situation as far
6 as minorities went in Minneapolis in the areas of
7 employment, housing, public accommodations and some other
8 things, and I became an officer of the League. And then
9 when I was vice president, there were riots in
10 Minneapolis, like there were in a lot of other urban
11 areas. This was in north Minneapolis. There were fires,
12 shootings, it was a little like Detroit; it was really a 0 13 bad situation. We tried to, we created a project called 14 Citizen Power where we went out into the communities that
15 felt disempowered and taught them about how to vote, how
16 to get organized, how to do this and that, and some of
17 the business leaders, CEOs, were -- the violent riots had
18 scared everybody, I mean buildings were burned down,
19 cars, the police were up on top of these buildings up in
20 north Minneapolis, and so they decided to develop a
21 branch of the Urban Coalition. They were setting up a
22 board of directors that would consist mainly of the CEOs
23 at the biggest corporations around here and
24 representatives of disctffected groups, or groups that
25 were working with them. 150
1 And I went to the woman who was president of the
2 League and I said, look, we should be involved in this
3 because we're doing a lot in the community here. So she
4 said,-well,-why don't you make the case for it? In the
5 course of doing the work for writing this report I did on
6 equal opportunity I had to talk to a lot of people in the
7 community and so on, gotten acquainted with a lot of
8 them, and I had been put by the mayor on the Minority
9 Group Housing Committee for the City of Minneapolis, and
10 I had been hired -- there was a Commission on Human
11 Relations and the executive director wanted to take some
12 kind of a course down in the south, and so he asked me if
13 I would take over for him.
14 MS. BRABBIT: The director of?
15 JUDGE MURPHY: This Minneapolis Commission
16 on Human Relations I think it was called. He was a
17 professional person that was head of this, and so he
18 hired me to assume his position. It was only for three
19 weeks, but this was in a very unsettled time where most
20 of the leaders in the minority communities were up in
21 arms, and so here's this little, white housewife coming
22 in, without a whole lot of experience in this, but I had
23 had some, as I've told you. But I tried -- got quite a
24 bit of attention then and earned some more spurs, and I
25 was invited to work with members of the minority u 151
1 community on trying to get legislation in the area of
2 housing and public accommodations and employment and so
3 on. I first went and lobbied at city council for local
4 ordinances and spoke at public hearings, and then moved
5 on to the legislature and went with some of these people
6 at their invitation and so on, and actually worked on
7 some drafting committees for the language that was used
8 in the state civil rights laws.
9 Anyway, at the time that I was writing this for
10 the League of Women Voters, making our argument, we also
11 had a big study on Native Americans and what was going on
12 with the Native American community in the Twin Cities, 0 13 and that had been an invisible part. So I had a lot to 14 put in about our case for why we should be involved in
15 this, and they said, okay, we'll put a representative on
16 the board. And so I said to the president that she
17 should be on the board and she went and she was on the
18 board. But then, even though I was actually not supposed
19 to be her successor, there was another one that was in
20 line before me, at the last minute she didn't -- I don't
21 know, I've never understood why she backed out -- and so
22 then I became a member of this board of the Urban
23 Coalition of Minneapolis, at the time it was the most
24 active, and I was on some key committees there. I mean
25 it was a really energizing time. 152
1 Later, when I was up for federal district court
2 judge after not having been out of law school for very
3 long, the ABA actually gave me credit for these,
4 activ~ties that were like what a lawyer would have done
5 they recognized. I think it was mainly the lobbying and
6 the drafting part probably, but the Urban Coalition also
7 worked on legislation, legislative proposals.
8 MS. BRABBIT: How long did you serve on
9 that board, Judge?
10 JUDGE MURPHY: I would have been on the
11 board for two years while I was president of the League,
12 but I know that we then set up an Urban Coalition Action 13 Council that I chaired. 0 14 MS. BRABBIT: What was the charge of the
15 Action Council?
16 JUDGE MURPHY: You know, this is such
17 ancient history now, it's hard to think about it. The
18 CEOs, their main role was to put money into projects,
19 there were some community centers, so you can imagine,
20 and to engage in dialogue. Some of these meetings were
21 very dramatic. In one of them there was a black leader
22 named Matt Eubanks, and he had a colleague called Earthia
23 Wiley, who was a convicted felon, and they and their
24 group took over one of these meetings. They took over
25 all of the -- I mean these are armed people. The meeting 0 153
1 was held at what was then Northern States Power, this
2 particular meeting was, which normally would be, what now
3 is Xcel Energy, and they took over the meeting. They
4 closed all the doors, barricaded them, and you didn't
5 know what was going to happen, and they made demands.
6 You didn't know if it was going to erupt in violence or
7 not. And the chair of the board was an old, white guy, a
8 CEO, but he held his -- they went up and yelled in his
9 face, their demands and stuff, and he talked back to
10 them. There was violence in the air, you know, you
11 didn't know what was going to happen, but it passed.
12 There was a photograph that was in the paper
13 that I happened to be in, and I know who was sitting
0 14 right across from me, because it was Dennis Banks. Do
15 you know who Dennis Banks is? The founder of the
16 American Indian Movement and a convicted felon because
17 of -- well, before that, but a very famous person, Dennis
18 Banks. They took over Wounded Knee. And I consider
19 Dennis a friend of mine, and I was comforted by the fact
20 that he was there. I remember looking at him and our
21 eyes met and, you know, you didn't know what was going to
22 happen. But he and his colleagues were tough at least.
23 I get off into these little stories, I mean these are not
24 good --
25 MS. BRABBIT: They're interesting. 154
n'~•--A 1 JUDGE MURPHY: But they're off the point._
2 Okay, the Urban Coalition Action Council; and did I chair
3 there or did I co-chair there? I can't recall. But one
4 task would be to, if there was legislation, another would
5 be to work on projects to help in the neighborhood, and
6 there were a lot of things that got started, and there
7 was TCOIC, the League got involved in that, too, which
8 was Twin Cities Opportunities Investment Corporation or
9 Community or something. But the idea was you would go
10 out into the communities that had been, that were, the
11 enraged communities, shall we just say, and give them
12 some hope by training with job skills, bringing in people
13 to train in job skills, interviewing skills, give them
14 links to where they might be able to get jobs. We put 0
15 our Citizen Power thing then in these things. A lot of
16 it was oriented towards speaking to the public bodies
17 about changes that were needed.
18 MS. BRABBIT: It's very clear at this point
19 in time that you developed a significant passion for
20 public service. So tell us how that energized you and
21 what you enjoyed most about this very significant work in
22 the community at a young age.
23 JUDGE MURPHY: I was involved in some other
24 things that were more, well, Women's Association of
25 Minneapolis Symphony, those social kinds of things, the 0 155
1 wonderful Art Institute, and also my work at the Art
2 Institute in the Arts Forum. Also many aspects where
3 they are dealing with disadvantaged communities, but it's
4 mainly not that. I also was in the Junior Women's Group
5 at the Minneapolis Women's Club, and I was an officer in
6 that and I became chair of that, and the chair of the
7 Women's Group was also on the board of directors of the
8 Women's Club. In those days, that was the heyday of the
9 Minneapolis Women's Club. All these educated women
10 belonged, they had a lot of money because they all were
11 paying dues, substantial dues. They brought marvelous
12 speakers. I was on that speakers committee. I mean you 0 13 could get speakers sometimes for $30,000. This was back 14 in about 1970, so riot every speaker could you pay that.
15 And the president of the Junior Women's Group was on the
16 board of directors of the Club, and I did that for two
17 years, and that was a, you know, they have a very
18 beautiful clubhouse, I don't know if you've ever been
19 there, so you have a responsibility for the building, for
20 getting the speakers, for all of the employees, people
21 lived there, there was full-time food service, there was
22 a social program. They also gave money to the community,
23 and they had a very active, I got involved in the process
24 by which they made those decisions as to what were the
25 good causes they were going to contribute to.
\ 156
1 MS. BRABBIT: Was the first organization
2 that you were involved in that had a mission centered on
3 the advancement of women the League of Minnesota Women
4 Voters?
5 JUDGE MURPHY: Yes, but some of these other
6 groups had the same thing floating around there because,
7 you know, in those days there weren't many women on the
8 board of the orchestra. If you wanted to be involved in
9 the orchestra, it was through the Women's Association of
10 the orchestra__ But I would say that the organization
11 that most formed me in terms of my later life, I mean I
12 had also personally been interested in the arts and so 13 on, but with the League of Women Voters I learned a lot 0 14 about leadership skills there. I mean I had had
15 leadership experience before, as you know, and how to
16 develop policy and how to implement it, and I got
17 fascinated in learning about the suffrage movement,
18 because we had an anniversary of, what would it have
19 been, well, I was president when it would have been 50
20 years of women's suffrage, and I remember learning about
21 how the women had worn these white dresses and chained
22 themselves to the lamp posts in front of the White House
23 and everything, and it just appealed to my imagination.
24 And I got some of these old speeches and everything and
25 used them with ringing words. 0 157
1 Now when I became president, everybody was
2 identified by their married name. I mean if you weren't
3 married, it would be Miss Susan Smith, but everybody else
4 was listed in the League publication and our League
5 ballots and everything as Mrs. Joseph E. Murphy, Jr., and
6 I just changed it by fiat. Some people complained but
7 most of them, I think, liked it. But that was great, you
8 could do it. So I found quite a mission with that,
9 learning about the, how the women's suffrage movement had
10 been so associated with the abolition movement in the
11 19th Century, and then the women had sort of lost out and
12 then there had been this amazing surge and then that, you 0 13 know, fizzled out. 14 I know I'm going to touch on this when I'm in
15 St. Louis to speak on women in the law, because if I look
16 at the women in the federal judiciary you see a
17 connection; the first ones had been involved in that
18 suffrage movement.
19 MS. BRABBIT: So if you put yourself back
20 in the mid '60s, late '60s, how would you describe some
21 of the greatest challenges for women at that time?
22 JUDGE MURPHY: Well, I couldn't open a
23 charge account in my own name. All these property laws
24 that still existed, where if you were married the male
25 has to agree to various things. I mean you, as a young
\ . ~-/ 158
1 woman, couldn't appreciate it. Plus, you know, I would
2 go to dinner parties and I would notice how quiet the
3 women were. If you saw these women separately, they were
4 interesting women, they were well-educated. A lot of
5 them had been off to fancier schools. I mean I'm very
6 proud of the University of Minnesota but, you know, Smith
7 and Vassar and everything. But when you're at the
8 general table, it would be the men that did the talking
9 mainly. And I thought about this, you know, interesting,
10 because if you were with the women alone they were very
11 intelligent and well-spoken.
12 But then I decided this is myself thinking, 13 you know, I'm sharing these little thoughts with you 0 14 the men were making their living talking. They were a
15 lot of business executives on the way up, lawyers, and
16 the women are home all day talking to little children and
17 out of touch with the stimulus of what's going on and so
18 on. But I can't say I was thinking, gee, women can't get
19 these jobs, because that isn't what I was thinking about
20 at that time. But I got very mad about things where you
21 weren't your own, independent self; you go from being
22 subservient to your father and then to your husband as
23 far as economic rights.
24 So I loved what I had been doing, but there was
25 a woman at the Women's Club, Harriet Holden, who was 0 159
(,--~ I , 1 president of the Women's Club, the overall Women's Club
2 about the time I was involved, and she had been president
3 of every women's group in the Twin Cities practically. I
4 don't remember what they all were. And as you know, I
5 had been president of the Junior Women's Club, I had been
6 president of the Minneapolis League of Women Voters, I
7 had been vice president of Junior WAMSO, you know, on the
8 leadership track there, been an officer at this Arts
9 Forum. I saw my life stretching out into the future and
10 I thought did I want to just continue doing this kind of
11 thing? I could see trailing Harriet Holden, who was an
12 admirable woman, but I didn't want to do that.
13 I thought about going to law school, and the
0 14 reason I wanted to go to law school was to be more
15 effective with the kinds of stuff I was doing in the
16 community. I observed how well lawyers, how organized
17 their presentations were, and also lawyers could
18 represent people or groups that needed representation,
19 and there were a lot of things going on in the courts at
20 that time. The other option I thought about was I could
21 write. I had enjoyed doing this little booklet for the
22 Minneapolis League of Women Voters and writing speeches
23 and stuff while I was president, and I had gone to the
24 National League Convention. I mean you could continue on
25 in this League work and you could get on the state board, 160
1 that was a natural track if people had been president of 0
2 the Minneapolis League, and people then had moved on to
3 this national board. But I was thinking mainly, well, I
4 could write. What was I going to do with my life; I
5 could write or I could go to law school.
6 So, you know, when I had applied to go to
7 graduate school at the University of Minnesota, I had
8 written from Germany like at the end of the -- I mean I
9 think maybe even in September, asking for a job, and then
10 I took some tests when I got back and I got in. I don't
11 think you could do that today because of I mean I had
12 to take some kind of, whatever test they had right then,
13 but I was able to get in the University into graduate
14 school just when I got back from my Fulbright, I had been 0
15 there as an undergraduate. But today I think there's
16 perhaps more red tape and stuff, and the places may be
17 fewer, I don't know. But I had done well in schdol so I
18 didn't think it was a big deal to, you know, think I can
19 go in fall.
20 I ran into a woman named Bobbie Levy at the
21 pediatrician's office, and I knew her from League of
22 Women Voters, and she was a lawyer and she had done some
23 practicing while her kids were little, and I told her I
24 was thinking about it. And she said, well, have you
25 taken the LSAT? And I said, no, you know, and she said, () 161
1 well, if you want to go to law school in the fall you
2 have to take it, and there's one coming up this Saturday.
3 You have to do it or you won't be able to enter in
4 September, so she told me where to call. So I called and
5 then I went and took the test and I got in.
6 And later when I asked Walter Mondale to speak,
7 they asked me to get Walter Mondale to speak at our
8 graduation from law school, and he gave a little
9 introduction and said I had gotten him, and he said that
10 I had gotten the highest grade in the Law School
11 Admission Test - the highest grade in Christendom. Well,
12 Christendom, that was a -- politically incorrect now it 0 13 would be seen as. Anyway, I don't think he even knew 14 what grade I had, and it doesn't matter. But this is
15 another good story, because I wouldn't have gone to law
16 school that fall if it hadn't been for running into
17 Bobbie Levy at that time.
18 Later, and we'll get into this, there were three
19 women that were the finalists for the first woman on the
20 Supreme Court; Rosalie Wahl, Bobbie Levy and me. And I
21 thought to myself at the time that she must have rued the
22 day. It wouldn't have been then so much, though, because
23 she wanted to be a federal district judge. Remember when
24 that happened? And that would mean she -- it really
25 wouldn't have happened, because for me to get it, and I 162
1 hadn't been out of law school that long, it would have
2 been even less time.
3 MS. BRABBIT: Good story.
4 JUDGE MURPHY: So then I got in law school
5 and so --
6 MS. BRABBIT: And this was at the
7 University of Minnesota?
8 JUDGE MURPHY: Right. But I went over to
9 talk to the admissions director. I discovered, once I
10 was going to go, to my surpris~ there was a lot of "What?
11 How are you going to be able to do that?" I had always
12 known older people, I mean when I started I was 37, which 13 was regarded as ancient, but I had always known older () 14 people that were going. In retrospect, they were going
15 to William Mitchell, you know, they were working and
16 going at night. But in our book group there was a fellow
17 who was a professor at the law school, Andy Schoettle, he
18 said to me one day, you know, you won't be the oldest
19 person at the law school, and then he showed me a picture
20 of some woman. But that stunned me because I didn't
21 think of it that way. But anyway, people began making
22 noises and I began to worry that maybe I wouldn't get in.
23 You had to have some letters of recommendation, and I had
24 some professors, I'm sure Harold Deustch, and I had asked
25 Warren Spannaus, who was then attorney general, and I c, 163
1 asked him, but later I realized that those political
2 recommendations aren't the ones that are the most
3 persuasive. But anyway, I took the bull by the horns and
4 I went over and met with Dick Swanson, who was the
5 admissions dean. And he has laughed with me about this
6 subsequently, but he gave me a really hard time and he
7 said, you know, you've got to go full-time here. You
8 can't go half-time and you can't go a year and then take
9 off. I mean it was just a belief, a projected belief
10 that this housewife doesn't realize what she's getting
11 into and she can't do it, this woman with these little
12 kids and stuff.
13 In our class there were three older people; the
0 14 man that owned Porky's restaurants, and he never
15 practiced law, and Betsy Norton, who was sort of a friend
16 of mine, was an acquaintance of mine, and she had just
17 gone through a bitter divorce, and so she had, she hated
18 every minute of law school, she didn't want to be there,
19 but she had to go to work and she felt that was the best
20 way to do it. And while I felt, you know, Jake Schunk,
21 my law clerk, saw a picture of me when I was a new
22 federal district judge, I would have been 46, and he
23 said, "You look so young." Of course, he's looking at me
24 now. But when I was 37 I looked a lot younger, but not
25 to those students, because people would turn around and 164 () 1 stare, do a double-take when you would walk in the hall.
2 It was very uncomfortable. People were talking about how
3 I shouldn't be there, I shouldn't be taking the place of
4 a-man who could be supporting his family~ Plus it was
5 hard for me physically because the books are so heavy,
6 and because of my arthritis it was very hard for me to
7 carry the books. It was hard for me to go up and down
8 stairs, and they didn't have an elevator that went
9 everywhere there was to go in that old building. And it
10 was hard just getting to school and parking and then
11 having to walk with all that stuff. Before I graduated I
12 did get a handicap permit, and that was a lot easier
13 because then I was able to park right by the law school,
14 but that was in the last part. 0
15 MS. BRABBIT: Judge, you mentioned that
16 there were three nontraditional students in your class.
17 Do you have a recollection of how many women in the
18 class?
19 JUDGE MURPHY: Ten percent.
20 MS. BRABBIT: Ten percent.
21 JUDGE MURPHY: My civil procedure class,
22 which was a wonderful class, Professor Louisell, who had
23 written the book, he was here that year from Boalt Hall.
24 (End of session.)
25 0 165
1 (May 25, 2006.)
2 MS. BRABBIT: Thank you again, Judge
3 Murphy, for meeting to continue your oral history.
4 Today's date is May 25th, 2006, and the last time we were
5 together we were visiting about your involvement in the
6 community and leadership positions, volunteer positions
7 within the community, and before we move too heavily into
8 law school and your experience with law school, can we go
9 back and talk a little bit about your involvement with
10 the Civil Rights Movement.
11 JUDGE MURPHY: Yes. I guess it was part of
12 the reason that I volunteered to work on President 0 13 Kennedy's campaign, but my most direct involvement 14 started when I was chair of a committee at the
15 Minneapolis League of Women Voters that was concerned
16 about all civil rights issues, and I would say that maybe
17 in about, this would be in the '60s, I don't remember the
18 exact year, or I could give it to you, you know, look it
19 up, but we did a lot of research, we met with a lot of
20 people in Minneapolis in the black community or in the
21 Native American community, and did research on areas in
22 which there were problems, whether it was education,
23 housing, employment, transportation, and what avenues
24 there were to make improvements, what agencies there were
25 that were working on it. 166 C) 1 I wrote a little book, it's not really a book,
2 too long for a pamphlet, but a study called "Minneapolis
3 Works For Equal Opportunity" that was then the basis for
4 positions that the League of Women Voters took on issues
5 coming before the Minneapolis City Council and before the
6 state legislature. The League took positions on these
7 issues, and I began going and speaking on behalf of
8 legislation that was proposed by others. Gradually I
9 became part of wider groups that were working on these
10 issues and got involved in the drafting committees of
11 groups working on housing and on other kinds of equal
12 opportunity issues, and so then got involved in the 13 actual drafting proposals, as well as lobbying on their 0 14 behalf, and I was appointed then to the Minority Housing
15 Committee for the City of Minneapolis. That was made up
16 of community people that, of color, that understood the
17 needs and the concerns, some of the people were in the
18 construction business or development business, and others
19 in the community that were concerned about this, and I
20 was involved in some other committees. It's hard to
21 remember each one.
22 I think I already mentioned that there was a
23 Minneapolis Commission on Human Relations that I was
24 quite involved in, attended the meetings and got involved
25 in some of their work, and to the extent that when the 0 167
1 executive director had some kind of training session he
2 wanted to go to in the South, he asked me to assume his
3 position for three weeks. That's a little three-week
4 period of employment while I was a stay-at-home mother,
5 but it showed a confidence in leaving a white housewife
6 in that position working with some very vocal community
7 leaders.
8 There was an activist center on the. north side
9 called The Way. It was seen by some as fomenting
10 revolution, and I got involved in some projects up there.
11 I think I already mentioned that we started a project
12 called Citizen Power in the League, which was to work 0 13 with groups, particularly minority and disadvantaged 14 groups. We made a wonderful book about who you could
15 contact about problems of various kinds, but mainly how
16 to organize and how to make your voice heard, not just by
17 voting. Of course, voting is important, and that was
18 part of the whole arcane system of precinct caucuses in
19 Minnesota; it's not the easiest way to understand how you
20 get involved in politics. So we trained a group of
21 people who went in wherever asked to give courses on
22 this, and it was very well-received.
23 We started working with something called the,
24 oh, it was something started by this Sullivan from South
25 Africa, and it was TCOIC, I think it was called, 168
1 Opportunity Industrialization Centers. This is also
2 arcane. It was back at the time of the riots in our city
3 and in others. That group was to provide training skills
4 in various kinds ,of indus-try or -employment skills, and
5 they wanted us to come and provide the Citizen Power
6 component to this program, and some of the areas that we
7 went in were burned out from the riots and so on.
8 I was also involved in getting the League to do
9 a history of Native Americans in Minneapolis, and they
10 were.much more nf an unnoticed part of the community
11 because they hadn't, until the American Indian Movement,
12 hadn't made noise on their behalf, and because so many of 13 them went back and forth between the reservation and the 0 14 city, people weren't aware of their presence, and they
15 also weren't aware of all the reservations in Minnesota
16 and the history of the Indians. We had, in the Twin
17 Cities at that time, some thought the largest urban
18 concentration of Native Americans, but I think part of
19 that was because people in other cities didn't have them
20 counted either. Anyway, we did a wonderful study on
21 that, and that went to some active programs, because the
22 League was involved in that.
23 I think I already told you about my wanting to
24 get the League at the table in the Urban Coalition
25 Movement, and I won't repeat that, but that was great () 169
1 because we were involved with the corporate leaders who
2 were trying to make a difference, as well as the people
3 who were organized in the communities, and we had people
4 involved in many of the task forces that were set up, and
5 I was on some of them myself. Then an action council was
6 developed that, I think I was a co-chair of that with
7 Franklin Knoll, and I was on that after, for a couple of
8 years I did that after I went off the board of the
9 coalition; and that was, we were going to take some of
10 the principles, things adopted by the coalition as goals,
11 and try to achieve concrete things as a result of it. So
12 that was, of course, related to lobbying, too. 0 13 I may have mentioned that when I was up for 14 federal district judge I had not been out of law school
15 that long, and there was a 15-year standard of being out
16 of law school at the time. I don't know what the ABA
17 standards are now. At the time I was sworn in, or when I
18 started in February of 1980 -- well, I started in
19 February of 1980, and I graduated in June of 1974, so if
20 you did the subtraction it looked like six years out of
21 law school, but of course it was even less at the time I
22 was nominated. And so that became something that, a
23 valid issue for people to talk about, whether, although I
24 had more, probably had more experience as a lawyer than
25 many did because of the kind of work that I got in the 170 (~ \ ) , __ , 1 firm, and also because of the fact that I was older and
2 had more life experience and maybe got more
3,responsibilities at the beginning. But they gave me
4 credit for some years because of the lobbying that I did
5 in connection with civil rights, because I was still
6 doing some of this when I was in law school. When I
7 graduated and started working, I was the first woman
8 hired by this large law firm, and I told you that the
9 head of litigation had told me, well, okay, you can come,
10 but if you don't make it, that's it. So I knew that I
.11 needed to knuckle down, and some of the community work
12 that I was doing went by the wayside. 13 MS. BRABBIT: With respect to that 0 14 community work, at that time was the community
15 recognizing or voicing issues of particular concern for
16 minority women?
17 JUDGE MURPHY: Well, I think the history
18 shows that the first movement was mainly related to
19 blacks without a focus on gender, but the leaders in the
20 black community were largely men. I mean there were
21 people like Angela Davis, but there were many women that,
22 black women and white women, that got involved in the
23 movement and, of course, as the native community was --
24 some of the strategies weren't in the comfort level of
25 some of the native groups, but the American Indian 0 171
1 Movement was a more activist thing. But there, too, it
2 was an issue of native traditions and it was mainly, not
3 entirely, but mainly male leaders, and the focus was on
4 the black culture and the history and where there were
5 injustices and where the needs were, and there were a lot
6 of women that worked on these.
7 But, you know, you began to be tired of being
8 made the secretary or the ones that did the calling lists
9 and, I think studies have shown this, many of the women
10 that were involved in these groups began thinking about
11 women's issues. That's one thing about the women's
12 movement, you know. Black women at some points in time 0 13 have said, well, it's just run by white women for white 14 women's interests. I don't think that's been true of all
15 groups and all people working in it but, anyway, there
16 were a lot of issues in all of this.
17 I got first into civil rights and then got
18 really interested in the women's, being, as I told you,
19 it was the 50th anniversary of the amendment for women's
20 suffrage. I learned a lot more about suffrage, the
21 suffrage movement. I was just so excited to see what
22 fearless advocates those women had been. You know, first
23 of all, you see some of those pictures of these stout
24 ladies and they didn't look, you know, to the '70s
25 perspective, like what you thought of as revolutionaries 172 C) 1 but boy, oh, boy. And then I got active in all of the
2 women's groups at that time. I was a founding member of
3 the DFL Feminist Caucus and the Minnesota Women's
4 Political Caucus·, and those things I couldn't do anymore
5 after I became a judge, of course. And I told you about,
6 just by fiat, changing the practice in the League of now
7 we're going to call everyone by their name, Diana Murphy,
8 instead of Mrs. Joseph E. Murphy, Jr., and how nobody
9 complained. You know, it was a bold move, I felt, but it
10 turned out not to have been.
11 I was chair of the Minneapolis Charter
12 Commission, I had been appointed to that by the mayor, 13 and I was very involved in some things there to benefit 0 14 the community. The Minneapolis Charter has given most
15 power to the members of the city council and it was a
16 weak mayor system. We had a mayor then, Al Hofstede, a
17 very good mayor, and he wanted to get more power for the
18 office, and the civil rights groups were very interested
19 in giving it to the mayor because the mayor wasn't able
20 to give the leadership that he wanted on these issues
21 that were common issues because the city council didn't
22 all have the same goals in mind. First of all, to get
23 the Charter Commission to agree on a city charter change
24 was quite a challenge. The head of the labor group was
25 quite opposed to any change; they were very comfortable 0 ' 173
1 with the system that existed where they knew how to reach
2 all the people around town and be able to get done what
3 they wanted. And I worked really hard with that leader
4 and we were able to all come together and we had meetings
5 out in all the communities, particularly where there were
6 minorities that could be heard, and it got on the ballot
7 and it won, and it gave the mayor more planning and
8 budgeting power. It really was a great victory.
9 Inexplicably, when Don Fraser became mayor, he
10 gave it away. He made an arrangement with the city
11 council where if he could become a member of the council,
12 or sit in on the council, he gave this power back. And I C> 13 have a lot of respect and admiration and love for Don, 14 but I never understood this particular thing.
15 So I know that when I was practicing law I was
16 chair of the Charter Commission. What the overlap in the
17 years are, I think I was, I mean the overlap in the
18 years, we would have to go back and look. You've got the
19 resume, or some of it there, you probably could find it.
20 MS. BRABBIT: Let's see, the Minneapolis
21 Charter Commission chair, you were chair from 1974 to
22 1976. You were a member from '73 to '76.
23 JUDGE MURPHY: Yes. '76 is when I went on
24 the bench so I quit, I had to quit. And I also was chair
25 at that time of something called Operation De Novo, which 174
1 was a pretrial diversion program, and that also was a
2 civil rights kind of organization because it was working
3 with first offenders to try to get them diverted from the
4 criminal system. It was a nonprofit that had counselors
5 and advocates, and you needed an advocate to get the
6 county attorney to be willing to let somebody go into the
7 program and hold off continuing prosecution, and then,
8 depending upon what their needs were, the kind of
9 counseling that they might need to try to divert them.
10 This was generally for first offenders, but sometimes if
11 they had been a minor offender they could get in, and it
12 was a well-respected program, and a very large percentage
13 of minorities in it.
14 I also was involved in Amicus, I was on the
15 board of that, and I set up the first advisory group for
16 Amicus, was chair of that. Amicus is a group that works
17 with people incarcerated in Minnesota prisons. I think
18 there may be a program in the federal prison, but it's
19 basically state prisons, and it's linking up people
20 one-on-one while they're still in the institution, giving
21 them a friend -- that's what the word means, of course --
22 and being with them, getting acquainted with them, trying
23 to help them get reestablished when they leave the
24 institution. Some of those relationships were very
25 successful, but it was very intensive work for C) 175
1 individuals. I never was a friend; rather, organizing
2 the system of it. That also is, you know, if you look at
3 the statistics, very heavily minority oriented, trying to
4 get people jobs or housing when they got out.
5 And, of course, when I was in law school I told
6 you I did those two related programs that were
7 representing misdemeanants in Hennepin County court and
8 representing prisoners in state prisons. There again,
9 the majority of the clients were black, they all went
10 there, so all of this tied together, everybody trying to
11 deal with these problems, and I am convinced that things
12 would be worse if you didn't have the programs, but () 13 they're not, there aren't simple solutions. 14 MS. BRABBIT: You mentioned the last time
15 we were together that one of the reasons you went to law
16 school was to become more effective with the things you
17 were doing in the community. Tell us about your law
18 school experience and then, if you will, in looking back
19 and being reflective, did law school give you what you
20 were looking for and allow you to be more effective?
21 JUDGE MURPHY: Well, I think I told you the
22 observation I made early in my marriage with my husband.
23 He went to private school, went to Princeton University
24 and had affluent friends, and a circle where the women
25 stayed at home raising a family and the men became 176
1 captains of industry, so to speak. I mean they were on
2 their way to those. Many of them achieved very prominent
3 positions. I just was struck at dinner parties how, you
4 know, boy/girl seating, of course, at these.parties, but
5 how the conversation was largely controlled by the men,
6 other than little comments every now and then by the
7 women. The men were such good talkers and I thought it
8 over and I thought, well, that's what they're doing all
9 day in their jobs is they're talking, and that's one
10 thing I learned how to do better in law school.
11 I spoke at a celebration of someone's life about
12 ten days ago and I said, well, you know, I wasn't quite
13 sure what to make of Buddy Ruvelson at first because he
14 talked in stream of consciousness, and as a lawyer I was
15 trained to state what the problem is and then what you
16 need to consider to solve it and then to go to the
17 solution, you know, and you do learn, it's valuable
18 training in law school. And this particular man would
19 start out and you would think he was talking about
20 something entirely different -- many women do talk this
21 way, myself probably sometimes also, too -- but you go
22 the whole way with him to lead up to the position that he
23 gets to, which is very wise, this man that I'm talking
24 about, and along the way he has seen things, and he
25 doesn't necessarily say what he thought as a result of 177
1 it, you just pick that up as he goes along and what he's
2 thinking about next, you know. That just came to my mind
3 because that is something that I learned to be more
4 effective in how to present a position and how to be
5 heard in a meeting. Honestly, I had been in a lot of
6 meetings and done okay before, but I did gain skills.
7 MS. BRABBIT: What was your law school
8 experience like overall?
9 JUDGE MURPHY: Well, I liked it. It was
10 very stimulating. I had never talked with anybody about
11 law school, I didn't have any idea what to expect, so it
12 was sort of a shock. The Socratic method was much in
<--, 13 force at the University of Minnesota Law School at that l) 14 time, and I may have told you that we had a friend that
15 was a professor there who had said that, he got out this
16 yearbook and he showed me, he said you won't be the
17 oldest woman, the oldest student at the law school, and
18 he showed me a picture of a woman in there that was, I
19 guess, a little older than me. And that was such a
20 surprise because I had always known of people that were
21 going to law school, but I'm sure I told you that in that
22 respect they were going to a different law school, night
23 law school.
24 But it was a culture shock when I got there
25 because I would walk down the hall, I was 37 years old, I 178
() \ I 1 looked quite good at that time, but they were all just
2 out of college, some of them had been in Vietnam for a
3 couple of years, but nonetheless they would turn around
4 and stare, like -who is that old lady, and that was an
5 uncomfortable feeling. It was a time when people were
6 wearing combat boots and combat outfits and swearing left
7 and right, and I'm afraid I picked up some of those
8 habits. It's very easy, you know, when you want to make
9 a point and everybody is using a certain kind of language
10 and using drugs, I mean I didn't pick that up, but it was
11 all around. The law school got sprayed with tear gas,
12 inadvertently, because big, massive protests were outside
13 the building, but this was when Cambodia was invaded.
14 I told you about the people that bet against me,
15 my friends bet on me, I think I told you that.
16 MS. BRABBIT: I don't recall that.
17 JUDGE MURPHY: I only found that out later.
18 My very good friends, honestly when I tell you this
19 story, they told me years later that a friend of theirs,
20 who I knew from parties, when he heard I was going to go
21 to law school he predicted failure and they said, oh,
22 she's going to be great, she's going to be top drawer.
23 So he bet, I forgot how much money it was but it was not
24 insignificant. Well, it was many years later, of course,
25 after they collected the bet that they told me. I'm so u 179
1 glad they didn't tell me at the time, it would have
2 been -- knowing that they had money resting on my
3 performance.
4 I was very lonely at the beginning because you
5 felt like the outcast of Poker Flats. My husband wasn't
6 happy, he wouldn't like my saying that, I guess, but
7 let's say he wasn't very enthused about my going to law
8 school. So I tried to hide all vestiges of it from my
9 family, and I went home right after class every day and
10 took care of my kids and made dinner and did the wash and
11 had dinner parties and continued with life as before as
12 best I could, so that didn't provide time for hanging 0 13 around and getting to know the other students. Every 14 hour that I was on campus I needed to study in between
15 class because I couldn't take the studying home, I tried
16 to hide all evidence of it, so it wasn't easy.
17 Plus I think I may have mentioned, you know, I
18 had severe rheumatoid arthritis but you couldn't see it
19 at that time like you can see it now, the vestiges of it
20 several years later, but I was in a lot of pain. There
21 were these heavy books, it was really very difficult
22 trying to manage, and the law school had all these steps,
23 and there was an elevator that went between some levels
24 but it was like a service elevator, it was very hard to
25 get in and didn't go everywhere you needed, so it was 180 () 1 real hard for me.
2 While I was there, the governor appointed me to
3 the Constitutional Study Commission, I was only in my
4 first year of law school, and the dean of the law school
5 was also on it. They asked him to do a particular
6 project for the Commission during the summer and he asked
7 me, he offered me a full-time job during the summer
8 between my first and second year but, there again, I
9 didn't want to work because I wanted to be home with my
10 kids so I turned that down. You know, every time you
11 turn down something like that it puts some feeling on
12 some people's part that you're not as serious. 13 But anyway, that was a very interesting 0 14 experience; that Constitutional Study Commission; I think
15 I talked to you about that a little bit. The first
16 decision was whether we would have a constitut~onal
17 convention, and there were some states that had them at
18 that time, Illinois had had one, and I was a proponent of
19 that. The majority of the Commission, there were 15
20 people on it and eight of them were legislators; of
21 course, they wouldn't want to have a constitutional
22 convention and I was all for it. I think, of course, you
23 get more conservative as you get older, but you could see
24 some of the mischief that could have been accomplished.
25 The Minnesota Constitution was, oh, it had come about at 0 181
1 different times and a lot of arcane language, especially
2 in the Bill of Rights section, not clarity. We voted
3 against, the majority voted against having a
4 constitutional convention. That would have been exciting
5 all around, real democracy in action. Then we divided up
6 into task forces, in addition to the regular Commission
7 proceedings, and I think I may have already told you that
8 I chaired the group that was dealing with the Bill of
9 Rights and the election articles and wanted to get a
10 far-reaching equal rights kind of thing for everybody,
11 for all disadvantaged groups, but also an Equal Rights
12 Amendment for women and lower the voting age, and there 0 13 were a lot of other initiatives. 14 I think I may have told you how I got a lifelong
15 enemy, apparently, in the National Rifle Association
16 because our committee, our task force had hearings around
17 the state, and they had a proposal on a very far-reaching
18 right to bear arms kind of thing, much more so than in
19 the U.S. Constitution, and our committee, these are
20 little committees because you only had 15 people on the
21 Commission to divide up these committees. There were
22 three; one was a state senator, one was a state
23 legislator, both Republicans, quite conservative, both of
24 them, and they both voted for it and I voted against it.
25 There was an editorial in the Thief River Falls paper, a 182
1 town way up in northwestern Minnesota, with a headline
2 about "Mrs. Murphy, Go Home," or whatever it was. On
3 behalf of the committee I presented that amendment, of
4 0ourse, to-the full.committee; nonetheless, hardly
5 earthshaking. But on the day that I went to my
6 confirmation hearing, Senator Durenberger's first words
7 to me were that the National Rifle Association was going
8 to be there to oppose me, but they didn't show up. That
9 made me a little nervous on that day, and it amazed me so
10 much because I had had such a minor role in that issue.
11 Anyway, we weren't able to get as much done as I would
12 have liked, but here again I liked working with civil 13 rights groups, and we did get some simplification in the CJ 14 constitution that was of value.
15 MS. BRABBIT: That was a committee you were
16 involved in in the early '70s, is that right?
17 JUDGE MURPHY: Well, it was an official
18 state commission, so it was a Constitutional Study
19 Commission.
20 MS. BRABBIT: Okay.
21 JUDGE MURPHY: That governor had also
22 appointed me to the State Equal Opportunity Commission,
23 which was my dream. Or was it called Human Rights
24 Commission? I don't remember. It was my dream to be on
25 that one. l) 183
(~ I. I 1 MS. BRABBIT: When was that?
2 JUDGE MURPHY: Well, it was right after he
3 was elected. He was elected in 1970.
4 MS. BRABBIT: And who is "he," Judge?
5 JUDGE MURPHY: Wendell Anderson. So I went
6 to the meeting, but it was a case of who had the right,
7 because the governor had made some last-minute
8 appointments, Governor Levander, last-minute Republican
9 appointments. And I don't remember what the deal was,
10 but I remember going there and being sort of turned away,
11 and Kathleen Ridder, who subsequently became a good
12 friend, was the last-minute appointment of the governor.
13 MS. BRABBIT: For the Human Rights?
14 JUDGE MURPHY: Right. Whether it was Equal
15 Opportunity Commission, I forget what it was called now.
16 But anyway, so I didn't -- she may not have been a
17 last-minute one, I'm just trying to think. There was
18 something about the timing of when he thought he could be
19 appointing people. At any rate, some time went on and
20 the legislature passed a bill to have this Commission,
21 and then the governor appointed me to that.
22 MS. BRABBIT: Was this during law school?
23 JUDGE MURPHY: Yes.
24 MS. BRABBIT: So you were serving on the
25 Commission -- 184 0 1 JUDGE MURPHY: First-year law student.
2 MS. BRABBIT: -- as a first-year law
3 student.
4 JUDGE MURPHY: The person who sat next to
5 me was Justice Otis of the Minnesota Supreme Court, and
6 there were two ex-governors on the Commission, the state
7 labor leader, Dean Carl Auerbach. I mean this was a
8 pretty heady thing for a little law student.
9 MS. BRABBIT: And at the same time raising
10 two children, and tell us their ages at that time?
11 JUDGE MURPHY: Well, they were nine and
12 twelve when I started law school in the fall. I would 13 have to look back to see, you know, the timing of it all. 0 14 MS. BRABBIT: How long did you serve on
15 that Commission?
16 JUDGE MURPHY: It was a couple years. And
17 then we finished our work and went out of business. It
18 was a fascinating experience, I learned a lot, I think I
19 told you that. I learned a lot from Ernie Lindstrom, who
20 was majority leader in the house, very conservative, at
21 that time. I think he would be a flaming liberal now.
22 Very conservative Republican. He sat on one side of me
23 and Justice Otis sat on the other side. One day I made a
24 motion, it was in connection with some of the work
25 related to civil rights, and he then made a motion to 0 185
1 amend mine to make it even better from my point of view.
2 And I was so naive, when I tell this I'm embarrassed, but
3 it was a great lesson. So I thought to myself, gee, I
4 had him wrong, this is wonderful. I didn't dare go as
5 far with what I wanted to accomplish in my motion, you
6 know, because I didn't think it would pass. Well, that
7 should have told me something. And so that passed and,
8 of course, then when it came up for a vote it got
9 defeated. It was a way to defeat it.
10 MS. BRABBIT: It pushed it over the edge?
11 JUDGE MURPHY: Yes, it was a way to defeat.
12 He was afraid that my motion might have gotten passed.
13 That was such a learning experience. I tell you, when I
14 saw that happen, it happened quite quickly, you know, and
15 the electric light bulb went on. I had thought in the
16 past before that that I would like to be in the
17 legislature possibly, you know, when I was back in the
18 League; certainly important work. But that experience on
19 the Commission I thought, no, because it was, you had to
20 bargain for everything. You had to give up what you
21 believed in on this in order to get a little bit on that,
22 and I thought I don't know if that's for me at all.
23 Of course, ultimately then when I was chair of
24 the Sentencing Commission, it's like a little
25 legislature, but there's enough different that I wouldn't 186 0 1 say it was the same. And being the chair of it was a lot
2 different than being an individual commissioner. But at
3 any rate, I'm getting off the point.
4 In those days you could write on the Law Review
5 but you could also get on by grades, and I knew that Law
6 Review was a good thing to do as far as your training and
7 so on, but I didn't want to spend the time in the summer,
8 which turned out to be the last summer I had with my
9 kids, you know, doing that, and of course I didn't know
10 what my grades were because it took them a long time to
11 get them, but fortunately they were good enough so I got
12 on. I did get involved in some activities. That first 13 year I was involved in, I think, in the Law Forum, I got () 14 speakers to come. But the Law Review, of course then you
15 get to really work individually, and I think it was in
16 that second year that I really made very close friends.
17 That was a wonderful thing about being a
18 generation older because I was, you know, 37 and they
19 were, you know, 12, 14 years younger than me, to have
20 really close friends because, you know, the last two
21 years of law school I developed some really close
22 friendships that have prevailed, and not many people have
23 that opportunity in life. So that turned out to be
24 great. It wasn't lonely for long.
25 MS. BRABBIT: Any faculty members that had 0 187
1 a significant impact on you and your professional
2 direction?
3 JUDGE MURPHY: Well, I had two really
4 outstanding people when I was a first-year that were
5 visiting professors. Louisell, who had written the main
6 leading book at that time in civil procedure, this was an
7 all-year program at that time, so I had him for all year,
8 and then Bob Keeton for torts for all year, he came here
9 from Harvard, he had some family connections, and
10 Louisell was here from Berkeley, so I was really lucky to
11 have those guys. To have Bob Keeton ask you, you know,
12 do Socratic questions, oh, boy, terrorized, but you got 0 13 something out anyway. 14 But I wanted to tell you about Professor
15 Louisell; he was a wonderful professor. His family was
16 originally from Minnesota, too, that's why they were
17 here. He would frequently say, "Now, gentlemen, remember
18 the facts," and he would present these problems to the
19 class, "Now, gentlemen." And this was a big class, it
20 was two groups together and, you know, it was 10 percent
21 women in the law school, and I'm sure that was reflected
22 in the number of the people in that class, and it really
23 began to grate on you. But he did a thing, there was
24 another thing that, I mean the overall thing is he was a
25 wonderful professor, I loved his class, but the "Now, 188 0 1 gentleman" would get me. He did another thing that was
2 mysterious to me, it was only years later when I saw how
3 brilliant it was, and as years go on it's more and more
4 brilliant. And I will tell my law clerks of this and I
5 think they would because it looks so simple. He would
6 ask the student, or whoever volunteered or however they
7 got to be in that position at the particular time, to
8 start telling about the facts of the case. And he would
9 listen like this, his hand under his chin or something,
10 you know, in an attentive manner, and all of a sudden he
11 would go up to the board and he would write a capital P.
12 And you thought, well, of course, that's the plaintiff, I 13 mean, you know. And then he listened a little bit more 0 14 and he would go up there and he would make an arrow. And
15 he would listen a little bit more and then he would get
16 at the point where he would go over and make a capital D.
17 He did that all year and it seemed so simpleminded. But
18 the whole point is there's got to be somebody, for
19 whatever reason they're going to go forward with this
20 lawsuit and they set it in motion, that's the arrow.
21 They're aggrieved in some way and they dream up some
22 theory and what they want out of it. I mean he never
23 said all of this. And then they launch it, that's the
24 arrow, and they picked out, meanwhile, somebody to sue
25 and try to think about what they could get out of that 0 189
1 person and what their role is. And he never said any of
2 this, but it's that -- because when you're writing an
3 opinion, I mean that same old thing, I don't literally
4 sit here thinking, okay, now, have I done the P and the
5 arrow and the D, but I try to get the law clerks thinking
6 about that, too. Because it's very easy to take for
7 granted, well, here is this inert thing, and it isn't
8 inert. I mean it's frequently still in motion, even on
9 the appellate level now. Anyway, I always liked that.
10 The women weren't called on as often, and that
11 was fine for me, but to the extent that they helped grade
12 on oral participation that might go against you, but it C_) 13 was blind grading, so I can't -- oh, I did fine, I can't 14 complain about that, but there were many annoying
15 hypotheticals that were very sexist.
16 The one that I did want to mention to y~u was
17 about one day in professional responsibility a professor
18 invited a long-time and respected county attorney, Ramsey
19 County attorney, and somehow the topic got around to rape
20 cases, and he said, well, you know, you've got to figure
21 out whether they're just trying to get some nookie on the
22 side, referring to the victims, and there are a lot more
23 stories about that, even from sitting in on some classes
24 current Harvard professors, you know, famous Harvard
25 professors, current Harvard professors teach, so that 190 () ·1 whole subject is hard for some males to talk about in a
2 way that recognizes the victimization point of view.
3 Then, of course, you're regarded a little bit
4 differently, too, once the grades come out. Because I
5 told you that there were people in the first year who
6 said, you know, she's taking up a spot for a man with a
7 family and who would hire her, or nobody would hire her,
8 whatever. But then the second year, well, they see who's
9 in the Law Review or, I don't know, because they didn't
10 post grades, but all of a sudden we were treated in some
11 different way, you know, because they figured, well,
12 we're not as dumb as they thought or whatever. 13 But then when it came time for people to run for 0 14 the head of the Law Review, I didn't think about it at
15 all because I was busy with my life. I had some other
16 community activities still, I cut out most of them but I
17 still had some, and my family and everything. But then
18 they started to talk about -who was going to be the head
19 of it, and there was one individual that seemed, we had
20 somebody, the head of the review at that time that some
21 people thought was too stern or strict, or I don't even
22 remember why they didn't like him but they didn't. So
23 there was one person that seemed, a candidate that seemed
24 like he might be just like that person, and then there
25 was somebody else, so then some people said you should 0 191
1 run for that. I wanted to be on the editorial board, so
2 it wasn't that I was devoid of all -- but I was really
3 more interested in being involved in the writing as
4 opposed to, but then, you know, some people said, well,
5 look, you've had a lot of experience in leadership roles
6 and you should do this. There had never been a woman
7 head of the Law Review, it was some years after that, so
8 I said, well, okay, I would put myself up. But there was
9 a lot of feeling among some of the men on the Law Review
10 that, you know, that wouldn't do to have a woman and a
11 housewife, you know, to be head of it. Somebody else was
12 elected and that was not, you know, there have been times 0 13 in my life when I was up for something and I've been 14 disappointed when it didn't happen, but that was not one.
15 And then they wanted me to be managing editor,
16 which we all know what that work is like, and I was more
17 interested in the writing.
18 The only reason that came to my mind was, you
19 know, what role was it like as being a woman. There were
20 almost no bathroom facilities, that's important to
21 mention. I only remember the one bathroom right now, it
22 was like with three stalls in it in the basement, and
23 this building was a building on many different levels,
24 you know, so there were features like that.
25 MS. BRABBIT: You did serve as a senior 192 () 1 editor when you were in your last year of law school?
2 JUDGE MURPHY: No, I was a note editor,
3 which is working with the people getting their notes
4 done.- It was a writing job. Senior editors are people
5 who don't get an editor position at Minnesota Law Review.
6 It's like that's not what you want to be.
7 MS. BRABBIT: You were a note editor.
8 JUDGE MURPHY: Yes.
9 MS. BRABBIT: How many women in the Law
10 Review commu~ity? Was ,it proportionate to the number of
11 women attending law school?
12 JUDGE MURPHY: I think so. I don't know 13 for sure, but I think so. I already told you about how I 0 14 was thinking I was going to spend that next summer, that
15 summer between my second and third year with my children,
16 I told you about that, but somebody told me it was
17 important to clerk at a law firm.
18 MS. BRABBIT: Tell us about that.
19 JUDGE MURPHY: I thought I already told
20 you.
21 MS. BRABBIT: I don't think we covered
22 that. Last time we got together we just started to get
23 into law school. I don't think we've been through that
24 progression yet. The summer between your first year and
25 your second year you mentioned that you were home with C) 193
1 your kids and that was your last summer.
2 JUDGE MURPHY: That was when I turned down
3 that job. That would have been a very interesting job,
4 because it was going to be the writing the history, I
5 guess, of what the Commission had done.
6 MS. BRABBIT: So tell us about your summer
7 between your second and your third year.
8 JUDGE MURPHY: Well, I was planning to
9 spend it with my children again, because I always
10 figured, well, graduation, then I've got to go out in the
11 real world. A good friend, a social friend who was a
12 lawyer at Lindquist & Vennum, had asked me if I had been 0 13 thinking about clerking, and I said, well, no, why would 14 I want to do that, because I didn't need the money, you
15 know. And he said, well, it's an important part of your
16 training and you should think about it. He said it
17 fortunately early enough that there was still, the
18 interviewing season was just going to start or something,
19 I can't remember when they did the interviewing and it's
20 changed over time, so I interviewed and I went and talked
21 to a number of firms and got a number of offers, but went
22 to work at Lindquist & Vennum and liked it there very
23 much. Lindquist & Vennum had been formed out of two
24 small law firms and it then had, and may perhaps still
25 has, a culture of a small law firm that's grown large. 194 0 1 There's a good side and a bad side. I mean it's not
2 regimented, at least at that time they didn't have a real
3 training program when you got there, and they didn't have
4 a definite time when they were going.to make the offers
5 and it was all more loosely organized. I can't remember
6 if at one of the interviews, I think it was when I was
7 coming up for law clerk I was talking to, you know, one
8 of those things where you have a lot of lawyers sitting
9 there, and Bob Sheran came in, who had at that time been
10 a justice of the Minnesota Supreme Court and shortly
11 thereafter was made chief justice. And he stood up, he
12 was a very able lawyer, and he stood up and he said, 13 "Well, Diana, I have to go now, he said, but I want you (~) 14 to remember one thing; we've got more lawyers in this
15 firm that voted for McGovern than anywhere else, or going
16 to vote for McGovern." I can't remember the month, and
17 there had just been a big story in the paper that we had
18 had this big fundraiser for McGovern. Not that we were
19 that actively involved, but the planners knew us and
20 asked _if we would have it at our house.
21 MS. BRABBIT: And for those that aren't
22 familiar with politics, can you give us the background on
23 McGovern?
24 JUDGE MURPHY: Well, George McGovern wasn't
25 from Minnesota, he was a senator from South Dakota, but 0 195
1 he was the Democratic nominee for president of the United
2 States. I 3 MS. BRABBIT: So they asked you to have
4 this at your home?
5 JUDGE MURPHY: Yes, and it was megabucks at
6 that time, it was a thousand dollars a person for the
7 people that came. We didn't have to pay it. He arrived
8 by helicopter. For my son John it was so exciting,
9 that's the younger son.
10 Anyway, I liked the people there and I went to
11 work there and I found it all so fascinating. I thought
12 before I went to law school that corporations, for (_) 13 example, was going to be a boring class, and I found it 14 to be one of the more fascinating classes. And I
15 discovered while working at Lindquist & Vennum that a lot
16 of these business problems and so on that I had thought
17 would not be interesting were actually fascinating, and
18 really it dawned on me that the development of the law
19 was often where the money was. In other words, where
20 parties had enough at stake to put money forward, the law
21 got developed in interesting ways. And that's true on
22 constitutional issues where there are issues that have
23 wide support. I mean you take issues today, and First
24 Amendment issues are, abortion issues and so on, where
25 you might have all kinds of groups. 196
1 MS. BRABBIT: So you served as a law clerk
2 between your second and your third year. Tell us about
3 that progress, because we know that that's where you
4 started your legal career.
5 JUDGE MURPHY: Well, I had some really
6 interesting things, as I told you, and I was working on a
7 case that had been lost in the district court -- I think
8 I mentioned this to you before -- and we needed to write
9 an appellate brief for our client, and one of the senior
10 partners gave me the job. I wrote the brief, it was
11 submitted unedited, exactly the way I wrote it, and the
12 case was reversed, and it developed the law on this -- it 13 was the liability of contractors, or the contractee, so 0 14 to speak, in construction, and it became the law in
15 Minnesota. In order to finish that job I had to stay on
16 through September, and they didn't tell me that they
17 weren't going to start the process of considering hires
18 or interviewing until after that. So I worked there
19 through September, even though I was going to school that
20 month and doing Law Review. So then the interview
21 sessions started in October, and so I had to, even though
22 I liked Lindquist, they hadn't given me an offer. At the
23 end of the summer I would have taken it without any more
24 thought because I just found it very stimulating, I
25 enjoyed the people there, but I didn't know whether I was 0 197
1 going to get an offer and so I signed up for
2 interviewing. I must say it was awkward, you know, when
3 you go around and they ask you when you were at the firm,
4 well, you got an offer from Lindquist? And you would
5 have to say no. But anyway you explain that -- you don't
6 want to badmouth them so you couldn't say they didn't get
7 their act together. But at any rate, the funny thing was
8 I discovered, you know, having been at the firm, I got
9 more interested in how firms are organized and
10 everything, and so I really was quite a hit on this
11 interview session because I wanted to know how much, what
12 the compensation was, how it was computed, who decided 0 13 it, and they loved questions like that because it looks 14 like you're one of us. I'm joking now, but I was a big
15 hit, I got a lot of offers.
16 I also had interviewed at the Supreme Court and
17 I did get an offer from Justice Otis, and I just felt so
18 bad about not having taken that offer, although I really
19 felt, I was 40, I needed to get on with my life at that
20 point. I think he understood. He was a wonderful man.
21 Be sure to ask me about Justice Otis and the Jaycees
22 case, unless I've told you already.
23 Meanwhile I was feeling sort of used or
24 resentful about how I had been treated, you know, by the
25 firm. I mean it wasn't intentional on their part but it 198 0 1 put me in an awkward situation. I think I mentioned I
2 got an offer from them at some point in this process.
3 But then somebody told me that Ed Glennon, head of
4 litigation, was opposed to having women do any trial
5 work. It was a law professor who told me that. I was
6 really troubled by that. I had never met him. I kept
7 hearing about him when I was at the firm that summer but
8 he was always gone doing depositions or trying cases
9 elsewhere and so on. I think I've told you about how I
10 called him up then.
11 MS. BRABBIT: No, you didn't.
12 JUDGE MURPHY: Well, I was debating what to
13 do, I had ~his clerkship that was very tempting to me
14 because I thought the world of Justice Otis, he was such
15 a wonderful lawyer and human being, and some very good
16 offers from law firms I respected, and I knew there were
17 a lot of people I liked at Lindquist but some of this
18 process thing was troubling to me, and then to hear this,
19 so I really was torn about what to do. And it came down,
20 and I was thinking about one other firm here, and
21 Lindquist and Justice Otis, so I called up Ed Glennon.
22 Fortunately for some reason he happened to be in the
23 office, and I told him what I had heard. I thought he
24 would deny it, but he didn't. He said that was true, and
25 he said, you know, it's not what I think, but it's, you 0 199
1 know, juries are just not going to believe what a woman,
2 a woman is just not going to have the kind of
3 believability with the jury, but something about all the
4 others wanted me to come. He said, all right, you can
5 come if you want, but he said if you can't cut it, then
6 that's it, you know, as far as doing litigation work.
7 MS. BRABBIT: You were the first woman at
8 that law firm?
9 JUDGE MURPHY: I was the first woman hired,
10 yes.
11 MS. BRABBIT: And for how long until they
12 hired another female? During your tenure or after?
13 JUDGE MURPHY: Well, when I got there in
14 the fall there was no other woman there, but they had
15 hired another woman, Kris Erickson, she was Kris Strom at
16 that time, who had been in law school ahead of me and
17 then had gone skiing for a year afterwards, and so she
18 wasn't there yet. She was going to be in the corporate
19 part, and she came a few months later. So I was the
20 first one hired, the first woman law clerk and then the
21 first woman hired for the firm, and she was going to be
22 in this other area.
23 On the first day that I showed up at the firm I
24 decided to go, despite that little -- the one thing about
25 that conversation with Ed, very tough-minded guy, very 200
1 able trial lawyer, not the easiest guy to work with, but
2 I respect him so much. One thing about it was I
3 respected that conversation, you might think it would
4 make you not want to go there, but I respected it because
5 he didn't say, oh, how could they get that idea. He was
6 very open about it.
7 Well, let me tell you about this other thing and
8 then I'll come back to the first assignment he gave me.
9 I had noticed when I was there, I knew of course, that
10 the men's bathroom had a plaque outside that said
11 "Lawyers Lounge," and I thought, isn't that dumb, you
12 know, but I didn't, it was just, I mean the whole system 13 was so different in those days. When I interviewed, a (J 14 leading lawyer -- in fact, he was one of the final ten
15 candidates for federal judge at the time that I was, for
16 the two positions. When I interviewed at his firm he
17 asked, "Do you make breakfast for your husband?" I mean
18 it was just like fascination, you know. And a partner at
19 the law firm I went to work at asked me what would you do
20 if your children are sick, how could you, I mean how can
21 you work as a lawyer? I mean all kinds of questions
22 that, of course, nowadays are -- and it wasn't like, you
23 know, they knew, of course, there was the danger you
24 could have another one, too. But, anyway, I suppose by
25 having gone to law school when I already had them, in 0 201
1 their minds, I don't know, they didn't ask that question.
2 Anyway, the first day I get to work as a lawyer at
3 Lindquist & Vennum, all of a sudden one of the senior
4 lawyers, one of the top guys came in, storming in, and he
5 started yelling at me, and I didn't know what he was
6 talking about at first, but I gathered that somebody had
7 taken~down the sign that said ''Lawyers Lounge" because
8 obviously somebody felt it was inappropriate now that
9 there was a woman. And he blamed me, probably thought I
10 had been complaining about it or something, and to this
11 day I don't know who took it down. I would love to know
12 because somebody -- but it was always very unpleasant 0 13 having this real senior guy be so mad at me; why did 14 things have to change like this, you know. And being
15 innocent of the misdeed, in his mind, but still it was
16 very supportive to know that there was a secret
17 supporter, and who knows who it was. It could have been
18 the cleaning lady, I don't know, a woman.
19 So then the first assignment I got from Ed was
20 questionable whether I could do it, because he came up to
21 me, stopped me in the hall one day, and he said, we've
22 got this case involving a young man, I forget now whether
23 he was 11 or whether he was 13 or whatever, and he was
24 somewhat, he wasn't retarded but he wasn't the brightest
25 kid, and he had been jumping a freight train and he got 202 0 1 his legs cut off. He said, could you work on that case,
2 could you appear in court without crying?
3 MS. BRABBIT: How did you respond?
4 JUDGE MURPHY: I mean I can't give you the
5 full flavor of how he talked about it, because in his
6 mind I responded, no, I was as tough as they come.
7 But his idea was as a mother I wouldn't be able to take
8 this kid's deposition because you would naturally feel so
9 sympathetic instead, but our client was the Soo Line
10 Railroad.
11 MS. BRABBIT: Did you stay in the
12 litigation side for the full two years that you were 13 there? 0 14 JUDGE MURPHY: Yes, although they got me
15 involved also in one other area, and I wasn't happy about
16 it at the time but it turned out to have been a wonderful
17 thing. One day the managing partner and the named
18 partner, main named partner, Leonard Lindquist, I got
19 called into the office and they looked very
20 uncomfortable, and I sat down, and I thought, well, are
21 they going to fire me? What is this, you know? It was
22 very strange because I could tell they were very
23 uncomfortable. And then they started in, and they needed
24 somebody to do this work in the administrative area,
25 administrative transportation and rates, you know, these 0 203
/\ I I I 1 are all controlled by commissions, and there was a Public
2 Service Commission at that time in the state of Minnesota
3 that controlled all the routes that trucking companies
4 had, or delivery services, the rates they could charge,
5 the rail rates, gas rates, lots of different stuff, and
6 they said, now, this is really good experience because --
7 and Lee Levinger, who became head of the FTC, he always
8 took Louise, this is that part of the, the Lindquist part
9 of the firm, you know, they had been these two small
10 firms. Louise Saunders had been a lawyer there, Lee
11 Levinger always took Louise to court with him on these
12 kinds of cases. And that made me all the happier, of 0 13 course, you know, so I was really mad sitting there and 14 thinking I could have gone to a leading firm and wouldn't
15 have to put up with this, but I thought, well -- this is
16 all inward, you know -- well, I thought I'll try it.
17 That's what I said to them, I'll try it and see what I
18 think of it. Well, it turned out to be great for me,
19 because I got so much experience.
20 First of all, there were trials all the time
21 before administrative law judges, and so right away, I'm
22 just out of law school, I'm handling witnesses, I'm
23 planning the strategy. We had a very important national
24 client that I represented, Purolater Courier Corporation,
25 later merged, but it was an important national company, 204
1 and we were always battling against Loomis, and my
2 counterpart was a partner at Briggs and Morgan, a very,
3 very good lawyer, and here I was just fresh out of
4 nowhere, and I learned so much. I worked with Dan
5 Lindsay on some of the complicated cases, and he was
6 great to work with. He long ago became partner of Irwin
7 Jacobs and has become a multimillionaire.
8 MS. BRABBIT: Was he a partner at Lindquist
9 & Vennum at the time?
10 JUDGE MURPHY: I don't know that Dan was a
11 partner yet. I can't remember. He was some years ahead
12 of me. These clients were Leonard's clients. Then there 13 was another guy named Bill Fox, who was a senior partner, () 14 that worked on some of this stuff, and I worked with him
15 on many of the -- well, we worked on trying to get
16 authority, because the trucking companies had to get
17 authority if they wanted to go someplace, or the people
18 that hauled -- Morgan Drive Away was another client.
19 Well, this whole thing, I was dealing with trucking
20 companies across the country. Transportation lawyers are
21 special types, you can imagine, unusual to be a woman in
22 this area. And another great thing working on Leonard 's
23 clients was I did the billing. Here I am, fresh out of
24 law school, and that's a very sobering experience, you
25 learn a lot from that. So at the time I would say maybe 0 205
1 a third of my work was in this area, with two-thirds
2 working on Ed's stuff, and there were other lawyers that
3 gave me litigation stuff, too, and even some bankruptcy
4 stuff, bankruptcy court stuff.
5 But at the time that I came up for judge --
6 well, when I became a state judge they didn't really look
7 into this because I got the offer, and it came out of the
8 blue to be a state judge. We can talk about that more at
9 some other time. But at the time I was up for federal
10 judge, you had these huge applications to fill out for
11 the merit nominating commission, and of course later for
12 the Justice Department, and later still for the Senate, (J 13 and you had to list all the cases you tried and opposing 14 counsel and the names of the cases and everything, and I
15 had not practiced that long. But a lot of my experience
16 was in this area, and it came in very handy. Well, I
17 can't tell you how miffed I was at the time that I
18 thought they were shunting me into this sort of women's
19 work, you know, when they mentioned Louise, you know, but
20 I said I wanted to be in litigation and I didn't feel
21 this was it. But it turned out I had lots of appearances
22 before the Public Service Commission, too, which is like
23 appearing in court and, as I say, before the
24 administrative law judges, as well as state and federal
25 court.
···~ 206 C) 1 MS. BRABBIT: And then you had to list all
2 of this experience, not for the state judge, we'll talk
3 about that and how that offer came about, but when you
4 took the federal bench you outlined all that experience?
5 JUDGE MURPHY: Yes, it was hard to do,
6 because I didn't have the files or anything. You know,
7 if you were sitting in your law firm you would be able to
8 do it. It was hard to do. But I successfully did it.
9 MS. BRABBIT: This is good. Tell us,
10 before we get too far down the path on the federal bench,
11 let's go back to 1976 when you transitioned from -- well,
12 even before we transitioned from Lindquist & Vennum.
13 This is a good time to break, Judge.
14 (End of session.)
15
16
17
18
19
20
21
22
23
24
25 0 207
1 (August 8, 2006.)
2 MS. BRABBIT: Today's date is August 8th of
3 2006, and this is the sixth taping of the oral history of
4 the Honorable Diana E. Murphy. Judge Murphy, thank you
5 again for your continued·effort to this ABA project. The
6 last time we met we spent some time talking about your
7 tenure at Lindquist & Vennum, and I would like to revisit
8 some of that.
9 If you would, please, provide us with additional
10 information about your experiences at the firm as well as
11 other opportunities that may have come up for you while
12 you were an attorney at Lindquist & Vennum. 0 13 JUDGE MURPHY: Well, I think we were 14 approaching the point near the end of my time at
15 Lindquist & Vennum when I got an offer from the governor
16 to go on the bench, but our conversation earlier today
17 led me to recall that I had gotten another offer for an
18 appointment from him.
19 I mentioned last time that while I wanted to be
20 in regular trial work, and ended up doing roughly 50
21 percent of that with my time, they also asked me to go
22 into this administrative law area, which involved a lot
23 of testimony, evidentiary hearings before administrative
24 law judges about transportation regulation, route
25 authority, rates, protesting others who were applying for 208 () "-.._ __ / 1 routes, and arguing before the Public Service Commission
2 relative to appeals that would go from an administrative
3 law judge, or in some cases as issues of law that would
4 be-presented to it in the first place, and there were
5 railroad rates, public utility rates, a variety there,
6 and it turned out, ironically -- and I think I mentioned
7 this before -- ironically that this was a boon to my
8 desire to be a trial lawyer because I had so much
9 experience handling witnesses, planning either the
10 applicant's case or the protestor's case, very much like
11 you would in a court of law, and appealing it, filing
12 motions and so forth. But because of that I also, this
13 Public Service Commission, I think there were five people
14 on it, and I can't remember what the term of office was, CJ
15 but it was quite a well-paid position and it had some
16 prestige,· quite a bit in some circles of authority. I
17 got a surprise offer from the governor's office saying
18 that the governor wanted to appoint me to the Public
19 Service Commission. That was an easy one for me to
20 handle. It was one of those times when your gut tells
21 you this isn't what you want to do. I didn't want to get
22 diverted over to that area entirely and be dealing with
23 the kinds of issues that they would be dealing with
24 there. Not unlike a judicial office in many respects, in
25 fact almost every respect, but I declined it. I was 0 209
1 conscious of the fact that, you know, I appreciated the
2 confidence that the governor had in me to want to appoint
3 me to that, and I realized that by disappointing the
4 governor it might mean that I wouldn't get any other kind
5 of appointment. I wasn't sitting around thinking about
6 appointments but that thought did cross my mind. And I
7 don't know that I was thinking about the possibility of a
8 judicial appointment, but I was very interested in, I
9 enjoyed very much being on the Constitutional Study
10 Commission and there were a lot of interesting things in
11 state government. Anyway, I turned that down, but I
12 think we were at the point where I was having lunch with 0 13 someone at the top of the, at that time the University of 14 Minnesota had a club that's on the top of the tallest
15 building in town, and it was a very nice venue to eat,
16 wonderful view all over, see all the lakes and the rest
17 of town, and lots of people you knew who would be there
18 and so forth, when a friend, who was close to the
19 governor, came up with an urgent look and said he needed
20 to talk to me right away. He said that there was a
21 vacancy on the Hennepin County Municipal Court and the
22 governor wanted to appoint me to it, but he had to know
23 by the next day, and I should let him know whether I
24 wanted it now or later. In other words, did I want this
25 judgeship or would I want one at some other time, and so 210
1 24 hours, that wasn't very long to think about it. And I
2 went back after lunch and I talked with some of the
3 partners at the law firm and most of them, I didn't have
4 a chance to talk to very many, but they.said, no, I
5 shouldn't do it. One of them who was in bankruptcy, very
6 noted bankruptcy lawyer, said, oh, you would be dealing
7 with a bad class of people, and another one, oh, these
8 are minor cases you would be dealing with, you shouldn't
9 do it. I was at a meeting, I've always been very active
10 in community events, community affairs, and I was at a
11 meeting of the board of the University of Minnesota
12 Alumni Association later that day, and the then Chief
13 Justice of the Minnesota Supreme Court, Robert Sheran,
14 was also a member of that board. So at the end of the
15 meeting I told him, and I said, you know, what do you
16 think I should do? And one of the ·factors is, you know,
17 I was very aware that I had only been out of law school
18 less than two years. I knew that there was a lot more
19 that I could learn, but who knew what would be the best
20 thing to learn anyway. I had actually had that practice,
21 through legal aid, some practice in municipal court where
22 I represented somebody at trial and some other things,
23 limited as that was. So I asked him, and he said, well,
24 Diana, if what you want to be in life is a municipal
25 judge, then you should do it. But if what you want to be 211
1 is a state district judge or a supreme court justice,
2 then you shouldn't do it. And I perceived at once what
3 he was talking about, and that is he no doubt knew many
4 people who thought they were going to be moving up the
5 ladder and who became embittered because it never came
6 about.
7 I can't remember, you know, everybody that I
8 talked to. There wasn't time to talk to very many
9 people, but about 10:30 at night I was going home and I
10 realized that one of the partners at the law firm lived
11 just a few blocks from me. He had been a state ·district
12 judge but then he had left the bench for a variety of 0 13 reasons, one of course was the salary, and he got 14 frustrated with some of the kinds of cases. But anyway,
15 I stopped at his house, and he and his wife took me in at
16 that terrible hour, maybe it was about 20 after 10, and
17 they said come in, Diana, and they took me into the
18 kitchen. They had one of those booths like they used to
19 have in kitchens, you've probably never seen one, but it
20 was nice, it was like a little nook, and they sat me down
21 at that booth, and Ed looked at me and he said, Diana, do
22 it. You'll never regret it. And that really clinched
23 it. I mean I already was leaning in the direction of
24 accepting it on the theory that a bird in the hand is
25 better than two in the bush. I didn't know if I would 212
1 like it, but I felt confident that if I didn't, that I
2 could do something else interesting in life, worthwhile
3 in life, and here was an opportunity and, you never know,
4 even though the governor had made that comment, "would
5 you like it now or later," and so I did it.
6 MS. BRABBIT: What was Ed's last name?
7 JUDGE MURPHY: Parker. And then that
8 turned out to be the last appointment that that governor
9 ever made to the Hennepin County Municipal Court,
10 probably to the Hennepin County court, period, because a
11 vacancy in the Senate occurred. He resigned as governor
12 and the lieutenant governor appointed him as United 13 States Senator. 0 14 MS. BRABBIT: Remind us again, who was the
15 governor at that time?
16 JUDGE MURPHY: Wendell Anderson, who had
17 been widely popular, recognized as a wonderful governor,
18 been on the cover of Time magazine, but who was defeated,
19 though, when he ran for the full Senate term; whereas if
20 he would have appointed somebody, like a lot of people
21 do, a temporary person, a friend who doesn't want to hold
22 it forever, and would have run in the election, I can't
23 imagine anyone beating him. But this appointing yourself
24 strategy was very effective for the person who defeated
25 him in that full term. But at any rate, it turned out 0 213
1 that the old saying, once again, there's a lot of truth
2 to it.
3 MS. BRABBIT: So here you have the partners
4 and your colleagues at Lindquist telling you not to do it
5 and then you decide on your own terms that you're going
6 to accept it.
7 JUDGE MURPHY: Well, one colleague did tell
8 me to do it.
9 MS. BRABBIT: What colleague?
10 JUDGE MURPHY: Ed Parker, because he was a
11 partner at Lindquist.
12 MS. BRABBIT: That's right.
13 JUDGE MURPHY: There probably were other
0 14 people that maybe encouraged me during the day but I
15 can't remember. I had to work, too, it wasn't like I
16 was -- and my friend, who was the emissary, of course
17 encouraged me to do it.
18 MS. BRABBIT: So how did you go back and
19 deliver the news to Lindquist? How did they react to
20 that?
21 JUDGE MURPHY: Well, they were
22 disappointed, which was nice, but they had a big party
23 for me. They gave me a clock. They were very good about
24 it.
25 MS. BRABBIT: And at this point in time in 214
1 your professional development, you've now worked a good C)
2 two years as an attorney, and that --
3 JUDGE MURPHY: It's a little less than two
4 years.
5 MS. BRABBIT: Little less than two years.
6 JUDGE MURPHY: Yeah, you know how if you
7 say 1974 to 1976, but let's not go into the details of
8 it, but "a good two years" is not correct.
9 MS. BRABBIT: We're coming up on this next
10 transition, but before we lose the opportunity to talk
11 about this overall transition from law school to
12 practice, what I would like to ask you about is what type
13 of impact did that have on you, your family, juggling now
14 a new set of responsibilities while at the same time ()
15 really wanting to get a great start?
16 JUDGE MURPHY: I would like to say a little
17 bit more about the work that I did there because I'm not
18 sure we covered it. It's been a long time since we met.
19 MS. BRABBIT: Sure.
20 JUDGE MURPHY: I talked a little bit about
21 the administrative law part, I think, but the other part
22 was, you know, regular trial work, both in the state
23 court and in the federal court. And I remember I worked
24 on one big bankruptcy case, that was interesting, a
25 corporate restructuring, and I had a variety there of () 215
1 little cases that would come into the firm and they were
2 given to you, you know, and you could work up the whole
3 case, and then some big cases. And I had one, a couple
4 clients who were professors at the University of
5 Minnesota that had employment cases, one of which I won
6 for a male professor, and another one of a woman
7 professor that was alleging sexual discrimination, but
8 that one wasn't completed when -- you know, I left
9 clients and gave them to other people in the office. I
10 believe that case was eventually settled, but maybe not
11 to her complete satisfaction. I know she was
12 disappointed when I left.
13 So I had a variety of kinds of experience
0 14 working with different partners. It wasn't the case that
15 I had one mentor really, because some of the cases I
16 worked with Ed Glennon, but then I worked with other
17 people, too, so it was a lot of experience and, you know,
18 you run into, you know, you run into ethical problems
19 that you don't recognize at first, you know, about
20 potential conflicts and so on. And nobody ever taught me
21 how to defend depositions or take depositions, I just
22 went and did it. I mean I had watched Ed do it
23 sometimes, so you learn a lot because you're out there,
24 instead of I told you before Lindquist & Vennum was a
25 wonderful place to work in that you could, they're great 216
1 people, there's a lot of flexibility, you could move
2 around, you could go ask somebody to do work, you weren't
3 slotted just in one place, because I worked on some
4 corporate stuff, too, and that was all to the good, but
5 they didn't have a real training program at that time.
6 So my classmates who were off at some of the other large
7 firms, like Dorsey or Faegre, you know, they were
8 carrying people's briefcases for a long time, but on the
9 other hand they got more of a formal training period. I
10 mean no terrible thing occurred because of this, but you
11 learn, and it made quite an impact, I must say.
12 I mean like the day on a Saturday when I was
13 down there Saturday morning -- talking about a home life,
14 it all relates to that -- and I discovered, because I had ()
15 been really busy and Ed had given me some files I was
16 trying to get done, a big case for the National Football
17 League, that was a real interesting matter, but anyway, I
18 went down, I thought I would catch up on some of these
19 other things, and I pull something out and I see that the
20 time to answer it had expired. Oh, my heavens, I almost
21 died on the spot. I thought this is so terrible; not
22 just for the client, but my whole career going down the
23 drain. And on Saturday morning there weren't many people
24 there, but there was a man named Curtis Greenley. And I
25 knew that any lawyer that was down there on Saturday 0 217
1 morning was there because he really had to do something,
2 but I just, my heart was thumping and, you know, to have
3 to acknowledge that you did this terrible thing. At the
4 time I never even looked, because I was so horrified at
5 this, but there wasn't that much of a timeline between
6 when Glennon had given me the case without saying
7 anything about the deadline. But, anyway, I didn't think
8 those thoughts at the time. And I went in and I said,
9 oh, Curt, I've done a terrible thing, and I told him.
10 And he said, oh, that's easy to fix, you just file a
11 motion and, you know, you have another day to explain
12 what happened, and there's no problem. It was a prose
13 case, and of course the prose person filed an opposition
0 14 but, of course, the judge granted me the time to file it
15 late.
16 But, you know, there are other people in the
17 firm that would have just said, well, you know, maybe
18 yelled at me and then said, you know, go look at the
19 encyclopedia or something. I don't know what. But he's
20 always been very high on my list. The thing is, you
21 know, while we're talking about Curt Greenley, very
22 knowledgeable guy, very good lawyer, he refuses to call
23 me Diana, you know, he only calls me Judge. I mean look
24 at how it began. And I said, Curt, I wish you would call
25 me Diana. And he says, I can't do it because of the 218
1 respect I have for you. So you lose something, you know,
2 in a way. I mean he was never a social friend, but I
3 respected him so much and appreciated so much what he did
4 for me on that Saturday.
5 Anyway, this was difficult because they hadn't
6 had a woman, hadn't had a woman in litigation obviously.
7 They did not think a woman would be able to flourish in
8 this field. You knew you had to scramble to make good on
9 your own, but you also felt an obligation for other women
10 because there weren't -- I told you at that time there
11 was only one other woman that I knew of, or that I now
12 know, that was in litigation or trial work in a law firm.
13 There was some in government. She's a bankruptcy judge.
14 I told you how she had gotten restless about what she was
15 doing. We had lunch at the New French Cafe and she was
16 confiding in me, and I knew that there was going to be an
17 opening on the bankruptcy court, and so I told her about
18 it, and I said~ ~ave you ever done any bankruptcy? Right
19 away she was very interested. She hadn't really done
20 direct bankruptcy, but she had been, in her corporate
21 practice, a very smart woman, because a lot of her work
22 turned out not to be trial work, but in a firm it isn't
23 like, unless you're in a plaintiff/PI firm, you're not
24 going to have that. But anyway she got it, and she's
25 still there, very successful bankruptcy judge. u 219
1 MS. BRABBIT: Are you able to share her
2 name?
3 JUDGE MURPHY: Yes, it's Nancy Dreher. So
4 there are a number of women where I know, I directly put
5 them on to what's been a great thing for them, so that
6 always makes me happy.
7 MS. BRABBIT: And let's take a short
8 diversion from our traditional timeline and talk about
9 this, because these are wonderful stories for you to be
10 able to share now, and to help other women to reach out
11 and help them achieve their personal goals and
12 professional goals, and hear about Judge Dreher and her
13 position, her very distinguished and honorable tenure as
(J 14 a judge, but tell us about some other situations.
15 JUDGE MURPHY: I would have to think. This
16 just came up because I was thinking it was Nancy Dreher
17 that had been cited to me.
18 MS. BRABBIT: We'll come back and we'll
19 revisit that. We'll come back and talk about that a
20 little bit as well.
21 JUDGE MURPHY: She was the one in the law
22 firm, the woman who did trial work in the civil law firm.
23 MS. BRABBIT: Okay, okay.
24 JUDGE MURPHY: Private law firm.
25 MS. BRABBIT: And this would have been back 220
1 in the late '70s? 0
2 JUDGE MURPHY: No, it's 1974. Not when she
3 went into bankruptcy court, but when I first heard her
4 name, because I-was, well, actually I would have been
5 interviewing in the fall of '73.
6 MS. BRABBIT: Right.
7 JUDGE MURPHY: See, this is quite a while
8 ago now.
9 MS. BRABBIT: Okay, all right.
10 JUDGE MURPHY: Then back to what it was
11 like there. So anyway, I never got home until 7:30 at
12 night, and I always had work with me. Well, I do now,
13 too, but it was different. And many Saturdays and
14 sometimes even Sundays, and a lot of times, you know,
15 anybody in a law firm it happens to, a senior partner
16 comes in and says he needs something and he needs it by
17 tomorrow morning. You find out later he didn't need it
18 at all, it's just the client was coming in for a meeting,
19 and there was no rush or there was nothing, and you do a
20 rush job and it's not as good as you would have liked,
21 and it really ruins your plans with your family and
22 stuff, but you have to do it. I mean at that time I
23 think it was really, I think now you might have more
24 freedom but, you know, it was really a time when it was
25 very difficult because of all the views about women and 221
1 how they wouldn't be available because of their families
2 and so on and blah, blah, blah.
3 So it was very demanding, and you would be
4 really tired out. My children were 12 and 15, but this
5 was the hardest time on my family because my younger son
6 really, he would come and say, Mother, I need to talk to
7 you, and I would say, I just can't talk. Guilt, you
8 know, just thinking about it. He got into some
9 situations where it would have been certainly better if I
10 had been there to talk to him, rather than going in and
11 rescuing him later, you know. I mean he's just a
12 wonderful man, there's no permanent damage that I can
13 see, except on me while I'm thinking about it. And it (_) 14 was very difficult for my husband because, you know, he
15 married somebody who in his view was going to be home and
16 making a home, making the family, having the center
17 there, and all of a sudden, I mean, I think it was quite
18 a jolt when he found out that I intended to go to work
19 for money. I mean that was a thing that didn't happen
20 with families and the people he knew and associated with
21 at that time.
22 Now after I was out there for some years a lot
23 of women then started to go back, but it was early, and
24 I'm not talking just about in law, but other areas, too.
25 So that was the hardest time as far as my family having 222
1 to sacrifice and my family being unhappy and my not being 0
2 there for them.
3 MS. BRABBIT: Who did you find at that time
4 were you~ biggest supporters?
5 JUDGE MURPHY: Well, my father always
6 supported me, he was very proud of me. I think I
7 mentioned that my father had wanted, was always talking
8 to me about how you had to be able to support yourself,
9 and he had a limited idea of what women could do
10 originally, but he also supported my going to law school.
11 I never talked to him about the difficulties I was
12 having, so it was just that he wouldn't be nagging on me
13 about doing it or trying to get me to quit. And my
14 mother was very against it, I think I told you that, too, 0
15 because her fears that there would be a divorce and so
16 on. But once I got to be a judge, and I think I might
17 have mentioned that, she got a kick out of that, she was
18 only alive for three months afterwards. But that
19 February, maybe the single-most liberating thing I ever
20 did was, I think it was in February of that year, I went
21 and bought a car by myself. It was the first time I ever
22 did it. I bought this really bright red/orange Camaro, a
23 particularly nice one with the fancy trim and stuff. So
24 when I would drive over, I went over every weekend to see
25 them, and when I would come up she would say, "Here comes 0 223
1 the judge." She got such a kick out of that. And the
2 car, she liked the car, she had a design inclination.
3 MS. BRABBIT: Okay. Do you have a picture
4 of the car?
5 JUDGE MURPHY: No. I mean maybe somewhere
6 there's a picture of the car, but I don't think so. It
7 was a sporty looking car, all right. It was long. I
8 mean some of the Camaros were sort of short; this one was
9 real cute.
10 MS. BRABBIT: Fun to think about. How
11 about some of your friends through law school and your
12 friends in your social circles; what was their reaction
13 to --
14 JUDGE MURPHY: Well, some of them were
15 dumbfounded because it was so close. And I was having
16 lunch the next day that I had to give my answer with a
17 classmate of mine who was having some difficulties in her
18 finding the right job and stuff. She wanted to have
19 lunch and was picking my brain about things, so I went to
20 lunch with her. And I was telling her about this thing,
21 and I told her about the appointment, and her face fell.
22 It was just like she resented it. Now she wasn't a
23 friend, she was just somebody I knew at law school that I
24 was open to helping her get this other position. So that
25 was interesting. 224
1 And some of them, you know, the ones that were
2 the good friends just thought it was terrific. Well, you
3 know, my friend, Jonathan Lebedoff, who I was having
4 lunch with· the day that the emissary came, who happened
5 to be his brother, David Lebedoff, his twin -- or his
6 triplet, he's both, but they're identical twins and
7 they're part of a set of triplets -- he thought it was
8 wonderful. And so, of course, on that day he told me to
9 do it, you know. And he took me over to Charlie's, which
10 existed then, one night after work to talk about this,
11 the municipal court, and he had cut out of Finance and
12 Commerce, which was a legal newspaper at that time, I
13 think it's called something else now.
14 MS. BRABBIT: Minnesota Lawyer?
15 JUDGE MURPHY: Yes. And he had a list of
16 all the municipal and district judges, and he brought
17 that over and he gave me the most valuable orientation
18 that anybody could. It had nothing to do with, you know,
19 learning to send jury instructions or something like
20 that. I mean he later did that. What he did was he gave
21 a thumbnail description of each of these judges, which
22 turned out to be very savvy, and which gave me a really
23 good idea about what to expect from the standpoint of
24 colleagues and so on. It was very, very useful.
25 MS. BRABBIT: What was, at that time, the 225
1 gender composition on the bench? Were you the first
2 female?
3 JUDGE MURPHY: No, at that time there was
4 one other woman on municipal court, and on the district
5 court there was Suzanne Sedgwick. She had gotten to the
6 bench not in the usual way, but she had run against a
7 sitting judge, and she had run for the municipal court
8 and then she wanted to get appointed to the state
9 district court. The only way she could was by agreeing
10 to be the family court judge, which wasn't something most
11 people wanted to do. So she was appointed to family
12 court on the district court, and then she wanted to get
13 out of that position and she couldn't, but she did
0 14 something very clever. She got the statute changed, not
15 right away, but eventually, so that that position was,
16 there was no longer a position that was just slotted for
17 that but it would be filled by judges of the district
18 court. And at one point the other judges on my court
19 came to me, on the municipal court, and tried to get me
20 to take that position and they said, this will be really
21 good for you because all this stuff, you know, the kinds
22 of cases. They didn't go on too much, but they said,
23 when you go on to run for election, you meet more lawyers
24 in family court, and lawyers, of course, lawyers know who
25 you are. Of course, if you know very much about family 226
1 court, a lot of them are mad all the time, of course.
2 I think I may have told you this before, I
3 didn't want to do the family court. I didn't want to
4 be -- it was sort of like the Public~Service Commission,
5 it's too narrow. I mean it's very important for the good
6 of families and children, I don't mean that that's
7 narrow, but as far as the law goes. And what I wanted, I
8 really love the law and all of its complexity and the
9 different areas and so on, but that comes later. But
10 they were so insistent, and they had like a little
11 delegation that they came to see me, so I said that I
12 thought it was sexist that they were trying to get me to
13 do it. And they were outraged by that but then they
14 backed off. I really felt that was true. 0
15 MS. BRABBIT: Tell us more about the
16 transition from law firm to the bench.
17 JUDGE MURPHY: Well, you know, I worry that
18 I've told you things before, but an unusual thing
19 occurred. They didn't have a chambers for me. There
20 were chambers available, but the chamber I was going to
21 be assigned to, the judge that was there was having a
22 particular trial that he thought was a tough trial so he
23 couldn't move to his other chambers, so I just, they had
24 me just go to this room, and I didn't really have an
25 assigned chambers. I wasn't outraged or anything at the 0 227
1 time because I didn't know better, but I never saw
2 anything like that happen on any court that I was on
3 after that. And there was a judge on my court named Neil
4 Riley who -- well, Neil had an eye for the ladies, I have
5 to say that, but he was a wonderful friend to me.
6 Anyway, he came to introduce himself, and he was
7 outraged, you know, that I was in that situation where I
8 didn't have any place to really hang my hat or leave my
9 stuff, and he was going to go and complain to the chief
10 judge and the court administrator, and I said, no, please
11 don't, I didn't want to ruffle any feathers.
12 I had a very nice story in the paper, it
13 pictured me in my office with a view. You know, this was
() 14 the tallest building in town at that time, the 42nd floor
15 of that building was way above all the others, so it was
16 a spectacular view, very nice picture, and a lot of
17 people thought it was wonderful, and the paper gave a
18 nice write-up. But, you know, other people were
19 outraged, how can this woman be doing this when, you
20 know, she's just out of law school, so to speak, and
21 people like these appointments, you know. But more
22 people were, seemed to be really so happy that a woman,
23 because this was a lot of publicity, and why I got that
24 much publicity, I don't know. I had been real active in
25 the community, maybe that was the reason, but I got right 228
1 away calls to do weddings the very first day, as soon as 0
2 that picture was in the paper.
3 But on the converse, the court reporter of the
4 judge in the chambers next to mine came over and said
5 that that judge wanted to see Judge Riley right away,
6 which was very strange, you know, when you have a judge
7 visiting you. So he excused himself and he went next
8 door, and he was there for, I don't know, ten minutes,
9 whatever. And he came back and he said that that judge
10 had said that it was terrible, my being appointed to the
11 court, that it was a token appointment and so on. So
12 now, you know, I have a friend here, Judge Riley is
13 telling me this, which is good to know. Good to know you
14 have a viper next door, you know. But that judge, you 0
15 know, if you looked at that judge's background, it wasn't
16 as varied as the background I had had, although, you
17 know, many years of doing tiny, little cases before
18 getting this appointment. So, you know, there were
19 various things to deal with.
20 MS. BRABBIT: What was the culture overall
21 of that court? Was it collegial, did it work well
22 together, did you find you made lifelong friends there?
23 What was that like?
24 JUDGE MURPHY: Well, I made many friends
25 there. It was like most places in life. There were some 0 229
1 people that you had a real affinity with and others that,
2 you know, just had different interests. There was a
3 greater contrast in work ethic and ability than I found
4 in the federal courts that I've been on, where the work
5 habits and ability have been more homogenous. But there
6 also is another factor, too, and that is on the federal
7 courts I've been on, people have been happy with their
8 jobs and content; not to say that some haven't wanted to
9 get another appointment. But there, there were an awful
10 lot of people that were envious of others or cutthroat,
11 you know.
12 When I was on the state district court there was
13 one judge who went to every meeting, very experienced
0 14 judge, and a good judge, very smart man, but he would
15 attack whoever wasn't there at the meeting, say nasty
16 things about that person. So I discovered that and, of
17 course, I made it a point to always be there. You know,
18 it was self-preservation. That judge could be, he could
19 really talk about you behind your back and say untrue
20 things, which was very aggravating, but he could be very
21 kind, too. Because the first time I got reversed, and it
22 didn't happen very many times in state court, because at
23 that time the appeal went directly to the Minnesota
24 Supreme Court, they didn't have the intermediate court of
25 appeals, so your chance of getting reversed was not that
\ _/I 230
1 great because the supreme court couldn't take all the
2 cases, but I did, in at least this instance. And he
3 called me up and he said, you know, don't feel bad about
4 that because it's t-he-, you ,kn-ow, the judge needs to make
5 decisions, and don't worry about it if you get reversed.
6 You're doing your job, you're not afraid to make
7 decisions. That was a very thoughtful thing, especially
8 coming from this man. So some of the judges I went on,
9 you know, sought out to go on judicial education things
10 together and everything and became lifelong friends.
11 Neil Riley, for example, I spoke at his -- he died
12 unfortunately a few months ago, and I spoke at his
13 memorial in December.
14 MS. BRABBIT: You mentioned Judge Neil 0
15 Riley. Were there others who you felt really took steps
16 to help you in your professional development at this
17 time?
18 JUDGE MURPHY: Well, of course, Jonathan
19 Lebedoff, I'm sure I've told you. One thing that
20 happened, as soon as I accepted the job I was told that I
21 would have to take the reporter, the court reporter of
22 the judge that had left the position, he was moving to
23 the district court, and I don't know why he didn't take
24 the reporter. No doubt he was going to keep the one that
25 the other judge had or something but, you know, I didn't CJ 231
1 like that, but I accepted it. And that court reporter,
2 there was a problem with the court reporter in only one
3 respect, and that was that he had an outside business
4 where he organized all of the court reporters in
5 scheduling depositions and everything. At that time
6 there was no rule against it. And so he had an
7 assistant, so you wouldn't always have that court
8 reporter, you might have the assistant come. Somebody
9 was always there when you needed them. Always. But he
10 would get all these phone calls, you can imagine, but it
11 turned out to be wonderful for me because -- his name was
12 Herb Peterson, and he had been a court reporter for many
13 judges. He knew so much, and from his depositions, all
0 14 the depositions he had taken. He was the old style, he
15 was a stenographic court reporter, the only one I ever
16 saw, and he wrote it out by hand. He was a wonderful
17 advisor in a very appropriate way. He would come back
18 and he would say, Judge, you know, this might be the
19 first case that you have that could go to the supreme
20 court. And I said what? And it was some kind of labor
21 dispute. What it was, this is municipal court now, right
22 at the beginning, you know, the idea that this was of
23 significance in the larger scale of things wouldn't have
24 occurred to me, particularly because it looked like a
25 fairly minor dispute. And there were just a lot of 232
1 things where he would, he was quite wise and he had been n'-,__ _ 2 experienced, and he didn't have the knowledge of the law,
3 but he knew a lot about the different lawyers.
4 You-know, so often in life it's not the
5 so-called important people that are the ones that you can
6 learn the most from. Eventually the court decided to
7 forbid the practice of having outside income, and so at
8 that time I had to, I gave Herb his choice; he could
9 either be a full-time court reporter or do his business.
10 And of course the business was the more lucrative of the
11 two, and so we eventually parted our ways in an amicable
12 fashion.
13 That was an interesting thing, because I
14 resented it' you know, this being forced on me, but I ()
15 didn't know enough about the system, whether you could
16 resist that or whether you really were expected to do
17 this, and I did it, and it worked out, you know.
18 There is a lot to learn. There's a lot for
19 everybody to learn when you become a judge because you
20 never would have had practice in all of the fields that
21 come up, because even in municipal court you got some
22 really important constitutional questions. Certainly a
23 lot of it was misdemeanor criminal, but there was a big
24 calendar of housing disputes, landlord/tenant, many, many
25 civil disputes. The amount in controversy was limited, 0 233
.0 ) 1 but like in a lot of the constitutional cases there was
2 no amount in controversy really, it was some other kind
3 of issue. So there was a big variety, and I loved it.
4 At the time when I went to my swearing-in,
5 somebody that spoke at it was then secretary of the
6 Minnesota State Bar Association, but he was the Hennepin
7 County representative, and he was a senior lawyer at
8 Dorsey & Whitney, later became president of the American
9 Bar Association. Nobody I had ever had any contact with.
10 He gave the most wonderful talk. I commented on this to
11 him subsequently. It was about how this was about the
12 most important court because it dealt with the people and
13 that was their -- see, it was the opposite of the
(J 14 partners that had, some of the partners that talked to
15 me, that this is the way people get their sense of the
16 justice system, and that it was a wonderful appointment
17 and that I had the understanding, because of the
18 community work I had done and the kind of person I was,
19 blah, blah, blah. That's why it was such a surprise
20 coming from somebody that I didn't know.
21 MS. BRABBIT: Who was this person?
22 JUDGE MURPHY: David Brink. And I later
23 performed his marriage, not that long ago, maybe about
24 five years ago, maybe they've been married ten years. It
25 was his second marriage. And every time I see him, they 234
1 go to the Minnesota Orchestra a lot, and his wife in
2 particular, Irma, she's so fond of me, we've got a very
3 wonderful association. It's funny how life works, you
4 know.
5 MS. BRABBIT: What did you like most about
6 your position on the municipal court?
7 JUDGE MURPHY: It was fascinating. Oh, it
8 was fascinating. You saw every kind of person that comes
9 in there and there's so much to learn, and the first
10 trials you start out, they're little, bitty ones, and you
11 have traffic court. And the first trial that I
12 remember -- and I don't know if I've talked to you about
13 this. Why would I have talked about this yet?
14 MS. BRABBIT: I don't think you have.
15 JUDGE MURPHY: So the first trial I had,
16 we're talking simple, it's a stop sign. There's two
17 witnesses. One is the police officer who said that he
18 saw this guy not come to a complete stop and, you know,
19 go through the stop sign. Then the defendant gets on and
20 he says, he was very well-spoken, looks good, says, I
21 came to a complete stop. I mean that's his testimony.
22 And I thought, help, what do you do, and it wasn't that I
23 was ever spending time watching television or anything,
24 but the popular idea is that you get it all linked up.
25 And you see that with juries, when you talk to juries 235
1 after complicated cases. They have some of the same
2 feeling. They get a lot of witnesses, and the defense
3 lawyers always play this up, there are no fingerprints,
4 they didn't take any fingerprints, they didn't do this,
5 they didn't do that. And I'm sure it must be worse now
6 because of all these CSI shows, they didn't do the
7 spectrograph, who knows what all they didn't do. You
8 know, you can't spend all your money doing all those
9 tests for every case and so forth.
10 But anyway, there you have a case and you have
11 to think about the burden of proof, but also who's got
12 the reason for their testimony and so on. And as I
13 recall it, I believe I found that person guilty, but
0 14 there were other cases that get a little bit more complex
15 where I found I maybe didn't tell you about the
16 police. See, I can't remember what I've told you.
17 MS. BRABBIT: No, I don't think we've
18 talked about this.
19 JUDGE MURPHY: Here's another traffic case.
20 Two police officers testify on this, and they say that
21 this guy -- I think it may have been a red light. It was
22 downtown, this one was downtown. The other one was out
23 somewhere, some neighborhood. And in their testimony
24 they say that this guy was belligerent with them.
25 MS. BRABBIT: The defendant? 236
1 JUDGE MURPHY: Yes. And he says whatever, 0 2 you know, he obviously says he didn't do it, and he
3 complains about the way they treated him. And I just got
4 the feeling that they just didn't like this guy from the
5 description, you know, and that maybe they were out to
6 get him because he -- he wasn't a minority but he was
7 sort of a rough guy. So I found this particular person
8 not guilty. And it was at the beginning of a long
9 calendar, so I felt a little nervous because I saw these
10 two cops sitting in the back of the room. They stayed
11 for a couple of hours, and I thought maybe they're
12 witnesses in another case. And the prosecutor was a
13 classmate of mine. It was funny that she became a 14 prosecutor because she was such a rabid radical in law u 15 school. But anyway, at the end of calendar she asks if
16 she can approach the bench. She says, Judge, those two
17 police officers would like to talk with you, and will you
18 talk with them, they're unhappy about the case. And I
19 said, well, sure. I can't remember now whether we spoke
20 in the courtroom or whether I had them come back to the
21 chambers, but I knew this was not going to be
22 comfortable. It wasn't going to be "you're the best
23 judge ever."
24 Anyway, they said, you know, we would like to
25 invite you to come ride with us so that you can get a 0 237
1 sense about how these things work, so I said all right.
2 And so they were on the graveyard shift at that time, and
3 so that was like from 11 until the morning. I don't
4 remember the complete hours. So it was fascinating and,
5 of course, the one was an expert speed driver and so he
6 did this one race thing, oh, my God, I thought I was
7 going to die, but you don't say that. I realized later
8 that he had been showing off. But anyway, it was
9 exciting, they went in and they had the guns out and
10 everything and you're thinking are you going to get
11 killed. It happened to be a very exciting evening. So
12 then about 4:30 in the morning, or maybe it was 5, they
13 never said anything about the case, they just talked
0 14 about instances that people called in child abuse and
15 various things, and so we end up -- at that time the
16 police headquarters was across the street in city hall
17 here, and they took me down into this sort of command
18 center where they've got the pictures from the cameras in
19 a lot of different places around, other precincts I
20 suppose, I don't even recall, and they have the
21 communication system with the squad cars and everything.
22 Sort of exciting, you know, bunch of guys sitting there,
23 so there was maybe 13 cops and me.
24 This is about 5 a.m., and they start in about
25 this case, the one driver is the leading one on this, 238
1 about how could you decide this this way, and all the 0
2 other cops just sitting around, hearing him tell what the
3 story was, and how incredible this was, I mean how could
4 you do this,-you know. It was very uncomfortable, and a
5 little intimidating because it's an enclosed space, the
6 time of night, you know, all these big guys. It was
7 uncomfortable. And you end up, you explain from the
8 judge's standpoint how you make a decision, and that's
9 what I went through, and then we went out and had
10 breakfast. I rode with them a couple times after that,
11 it was very enlightening, because you understood things
12 in a lot different way, you know. When I read a police
13 report ever since, that's been a long time ago, you know,
14 and they talked, they called some people thumpers, and I 0
15 mean they weren't saying everybody is great. That was
16 one thing that was interesting, too. But you saw how
17 important it was to have backup when you're in a
18 dangerous situation and so on.
19 Anyway, so it was a great experience and I went
20 to, when that fellow's son got an Eagle Scout thing they
21 invited me, and the other cop was more educated, and he's
22 got a high position in the police department now. But he
23 later applied for a Bush Fellowship and I was able to
24 write a letter for him, and he got one and he went off to
25 Harvard, and he introduced a lot of these computerized 0 239
1 programs and the idea of finding areas where the crime is
2 and being able to put your resources in there, so that
3 was all very interesting.
4 MS. BRABBIT: Any other relationships you
5 developed while you were on the bench?
6 JUDGE MURPHY: On the municipal bench, yes.
7 That's just an example. But people weren't used to a
8 woman in this position, and the one time I remember, and
9 here again I don't think I've told you this, but you did
10 a lot in your chambers -- unlike in federal court where
11 everything is in the courtroom and everything is
12 recorded -- because they would try to work out plea
13 agreements and they would sort of see if it was going to
0 14 fly with the judge. The judge is not supposed to get
15 involved in negotiation, although some of them did. So
16 they bring the guy back, the lawyers come back, and the
17 guy happens to be black. And I knew it wasn't the
18 lawyers because they had already been in there. So the
19 guy comes in, and these chambers were all alike, they haq
20 a big desk, like this one, and two chairs in front, and
21 then a chair, unlike the one I'm sitting in right now,
22 they had a high back, you know, a judge chair. And I'm
23 sitting in the judge chair, and this guy comes in, and
24 we're just like this, and he sees me sitting in the chair
25 and he gets this look of confusion and he starts looking 240
1 around the room like, you know, where is the judge. And 0
2 that was one of those or lawyers that would sit there,
3 you would have your robe on in the courtroom, but I can
4 remember this one lawyer in particular, I haven't seen
5 him for a few years now but I never liked seeing him, who
6 was sitting where you are right now and I'm sitting in my
7 regular clothes, you know, and he's looking at my breasts
8 in a way like he wants to let me know that he's doing
9 that, and it's very uncomfortable. I mean if only he
10 were in the room you would probably confront him about
11 it, but you aren't going to when all these other people
12 are in there. But very discomforting kinds of things,
13 you know, that would never happen these days.
14 I remember going up, when I was at the law firm, 0
15 to Carlton County, to the district court up there, and I
16 was arguing a case. A senior partner was with me but I
17 was doing the whole thing, and we go in and the lawyer
18 for the railroad, Burlington Northern, was somebody that
19 I had been on opposing sides with before. And we go in
20 and sit down at the desk and the judge says, my, that's
21 just a pretty dress that you have on. And that's one
22 that many women have talked about, you know, but it
23 really is, it throws you for a loop when you are here to
24 fight this railroad.
25 MS. BRABBIT: Did you have other reactions 0 241
1 from people in your courtroom to a woman judge?
2 JUDGE MURPHY: Sometimes lawyers would ask
3 you to disqualify yourself because it was a case
4 involving discrimination against a woman or something.
5 Connie Motley was a very outspoken federal district court
6 judge, and when the judges there tried to tell her that
7 she couldn't handle any cases involving women, she said,
8 well, how can the men hear them? Anyway, those things
9 happened and people were really serious about it.
10 I think I probably told you that when I was a
11 judge I went to a meeting of the Hennepin County Bar
12 Association, these lunch meetings, I was really active in
13 the bar, and in the state bar. Oh, I learned so much 0 14 that way. You know, you learn about a lot of areas of
15 the law and about lawyers and this whole period, I just
16 learned so much every day. I mean I still learn a lot
17 every day, but not the percentage-wise. Anyway, this one
18 lawyer got up and he said, I can still see him, you know,
19 "the quality of the bench is deteriorating, I mean we've
20 got, you know, women on the bench." And so these lawyers
21 came to see me after the meeting and they said, we want
22 to apologize to you, that was really uncalled for and,
23 you know, it's really important to have women on the
24 bench because they have a lot to bring on these family
25 law cases. And here's a judge that's not even in the 242
1 family law area or anything, and they think they're doing n 2 me a big favor by telling me this.
3 I told you some of the things that people said
4 in the interviews, but one day when I was working on a
5 dissolution case, I think they still called them divorces
6 at the time, with somebody, a partner at Lindquist &
7 Vennum, who never acted flirtatious with me or ever
8 touched me, we went over to the judge's chambers, I had
9 written a memo, and the purpose of the memo, it was all
10 on the law but relating to the facts, and the lawyer told
11 me then that the purpose of memo, the real purpose of the
12 memo was, it was a so-called trial memo, was to get a
13 settlement of this. So we go into the courtroom and 14 we've got the brief, I did all the work on it, he didn't 0 15 do anything except he didn't like long paragraphs so he
16 cut the paragraph in part in some places, but that was
17 the extent of his work, and I'm carrying the brief and
18 everything, and he puts his arm around me. Now the judge
19 is here, too, in the courtroom, and in this belittling
20 way, do you know what I mean? Like here's my little
21 trixie, you know, and I felt like hauling off and socking
22 him, you know, but you can't do that.
23 MS. BRABBIT: Did you ever find yourself in
24 a situation like that or similar to that where somebody
25 else voiced opposition to the behavior, or did you 0 243
1 primarily find yourself in a situation where people would
2 watch and either, because they were oblivious to it or
3 accepted it, let it pass?
4 JUDGE MURPHY: Well, I've certainly been in
5 situations where others would say, well, where are you
6 coming from, but I think it's probably in a later time
7 period. I think I told you that Kris Strom, now Kris
8 Erickson, was in the corporate area, and we would have a
9 cup of coffee together every day at the start of the day
10 as sort of a fortification. I had been around a lot.
11 You know, life experience counts for something, even
12 though people didn't seem to think, the critics didn't
13 seem to think it. Of course, I was interested in the
0 14 work I was doing, I don't know about that, but still it
15 was really nice to have another woman there.
16 MS. BRABBIT: Was she there when you moved
17 on to the bench?
18 JUDGE MURPHY: Yes.
19 MS. BRABBIT: She was still at Lindquist?
20 JUDGE MURPHY: Yes.
21 MS. BRABBIT: Did you two remain friends
22 after that?
23 JUDGE MURPHY: Yes, we're still friends but
24 we don't see each other very often. She doesn't practice
25 much anymore, and her life is filled with, she has one 244
1 child and he's just gone to college, but she's been very,
2 very involved in his activities and everything, and she's
3 involved on a lot of boards and stuff.
4 MS. BRABBIT: What was your greatest -
5 JUDGE MURPHY: I'll tell you one of the
6 upsides. The fellow that's the managing partner at
7 Lindquist & Vennum right now, Daryle Uphoff, was a great
8 friend of mine when I was over there because he was
9 iconoclastic, sort of a radical by nature, and you could
10 always go in there and he would sort of scoff at what
11 somebody was doing somewhere else. He was a free spirit.
12 So it's so ironic that he would end up being this
13 managing partner and really thriving on it, and I think
14 doing a wonderful job from what I hear, and loving it. 0 15 So, you know, the nature of this kind of interview is
16 that it sounds like you're whining because you're picking
17 out some of these things that might be of interest
18 historically what it was like, but there were many people
19 who supported me. In fact, it was a family friend that
20 encouraged me, I did mention that earlier, to go to work
21 at a law firm, to go get a summer clerkship, and he was
22 at the law firm all the while I was there. I could
23 always go talk to him if I wanted to. And a lawyer that
24 I worked with that now is a partner of Irwin Jacobs, Dan
25 Lindsay, he was such a free spirit, I loved working with () 245
1 him. I worked with him on those administrative law
2 things, and he was always supportive, and still is. So,
3 you know, I had wonderful -- I've been so lucky. So I'm
4 only telling you these things sort of out a duty to give
5 some flavor about how it -- there were hard things, but
6 there were wonderful things, you know.
7 MS. BRABBIT: Sounds like you actually
8 loved working at Lindquist.
9 JUDGE MURPHY: I did, and I told you that
10 working for Leonard on those other cases, the great thing
11 was I was able to do the billing for those clients, and
12 that's what you, you know, you learn what it's really
13 like to be practicing law.
0 14 MS. BRABBIT: What would you tell law 15 students about the importance of client relationships?
16 JUDGE MURPHY: Well, you aren't going to be
17 able to do much of a job if you don't understand the
18 needs of your client, and to do a good job for the client
19 you also have to be communicating to the client. That's
20 so important. You see that as a judge. These people
21 that are so mad, and a lot of times the bad feelings
22 between the parties all originated with a lack of
23 communication, with their lawyers maybe, and then they
24 start blaming the other side for it and everything.
25 MS. BRABBIT: I don't want to digress too 246
1 much, but in addition to loving what you did at
2 Lindquist, you have described a situation that you loved,
3 and was fascinating for you, in your first judicial
4 experience as well.·
5 JUDGE MURPHY: Right, and there are
6 judicial education programs. I did ask the then chief
7 judge should I go to some course at the beginning, and he
8 said, no, no, much better -- of course, he was trying to
9 fill the slots for the summer I see now but anyway,
10 it's much better if you work for about a year and then
11 think about going to some education. And it's true that
12 you learn a lot. Boy, you learn by being in the fire.
13 And there are resources that you can look at and you can 14 go ask other judges if you want, but usually you don't do 0 15 much of that because everybody is busy with their own
16 things. But there are sample orders, and also in
17 municipal court, a lot of it is you make oral findings
18 and it takes you a while to get the hang of that, but you
19 have written opinions and so on, and you can look at what
20 other people have done in other cases. You rotated at
21 that time in the suburbs quite often. Now they do it,
22 it's one unified trial bench, they do it but they don't
23 have to do it as often. Then the district judges didn't
24 have to do that, but have to do it now.
25 MS. BRABBIT: Did you have law clerks at 0 247
(~ ' \ 1 that time?
2 JUDGE MURPHY: Oh, no, no. At the very end
3 of my state district court experience I had a law clerk
4 for the last year but, no, in municipal court no law
5 clerk. You were on your own. I mean you could get help
6 from the lawyers by ctsking them to provide things, which
7 sometimes they're helpful and others aren't.
8 MS. BRABBIT: So tell us about
9 JUDGE MURPHY: One nice thing, though,
10 about being a judge in the courtroom is everybody, almost
11 everybody is very nice to you. Maybe they would say
12 something behind your back. One of the things if I had
13 realized, it's not surprising, if I realized I would have 0 14 been paralyzed, because I knew I had a lot to learn but I 15 knew I would work really hard and I would be able to do
16 it, I was confident about it. But little did I realize
17 that your reputation gets formed immediately and it's
18 almost impossible to shake off. Now if I would have
19 known that, I would have been more worried.
20 MS. BRABBIT: Well, we now know that you
21 did all the right things.
22 JUDGE MURPHY: One thing, though, that some
23 of the, like in the clerk's office, they said I was slow,
24 and some of the lawyers said that, too. But this was to
25 the good, because if you didn't know about something, 248
1 then you should ask questions. Or if you've never come ()
2 across this problem before, you should do a little
3 research. So I never, I didn't do stuff just off the top
4 of my head. Well, a lot of it you had-to; when you're on
5 those calendars, you've got to move the calendar along.
6 But that was the only criticism I ever heard, and it
7 wasn't a unanimous criticism. But that's a better one
8 than, you know, they don't make good decisions and
9 they're biased and partial and all the different kinds of
10 things people could say, she gets mad, or whatever.
11 One thing that happened when I became a district
12 judge, we'll have to get to that, was the National
13 Association of Women Judges was founded, and Sue Sedgwick
14 was very much of a feminist, and she came to me and told C)
15 me about this organization, she had gone to some meeting
16 where it was going to be organized, and I joined
17 immediately. I mean I could see the importance of that.
18 MS. BRABBIT: This happened when you were a
19 district court judge?
20 JUDGE MURPHY: Yes, but something had
21 happened that was significant when I was a municipal
22 court judge, because when Rudy Perpich, I think it was
23 when he was running for reelection, that would have been
24 in '76, at any rate I may have just been reading that
25 into it because of Reagan and his making an announcement 0 249
(\ I ] 1 about the U.S. Supreme Court when he was elected, but
2 anyway, Rudy Perpich announced that he wanted to appoint
3 a woman to the Minnesota Supreme Court, and the Minnesota
4 Women Lawyers came up with a list of seven people, I
5 think, candidates. Anyway, he asked the Minnesota Women
6 Lawyers -- this was the height of power of the Minnesota
7 Women Lawyers seriously -- to come up with a list, and
8 they had a committee and they came up with a list of, I
9 think, seven, maybe there were nine names on it, I don't
10 know. And some people said to me that I should be
11 interested in the supreme court. And when I looked at
12 the names on this list I had, in my view, equivalent
13 experience; not maybe the years of it, but having had a 0 14 lot of experience at Lindquist & Vennum and as a judge 15 and, you know, I was a member of the Minnesota Women
16 Lawyers, and nobody knew about this process or anything.
17 And I suspect that, I know I talked to somebody about it
18 didn't seem fair that people hadn't had a chance to put
19 themselves forward but, anyway, so then they let you
20 apply.
21 MS. BRABBIT: To be on the list?
22 JUDGE MURPHY: Right. They had the list
23 but they said, well, this isn't the final list. But when
24 they released the list, this was the list, do you see
25 what I mean? But then they said, well, and I don't know 250
1 what feedback they got on that, so then they had some
2 kind of a process, I remember Katie Sasseville was the
3 person that came to see me and gave me some forms to fill
4 out, and you had to give some examples of your work. I
5 don't even remember what you had to do, give names or
6 whatever. And I truly, as I sit here, I can't remember
7 whether I just had the interview with her and then she
8 reported back on it, or whether there was a committee, a
9 larger committee. I just remember talking to Katie
10 Sasseville, who was on the committee. Whether she had
11 been on the original committee that they had or whether
12 they enlarged the committee, I don't know, but I think
13 Rosalie Wahl actually chaired the committee. But here 14 again, I don't want to get into the names. In the end, 0 15 you know, there's some of these names I don't want to get
16 into. If you think it over, you might think why.
17 So anyway, then they came up with a new list,
18 and I think it was about seven, and I was on that list.
19 I was the only new name, as I recall, that got on the
20 list. So then I think everybody on that list talked to
21 people that they thought could talk to the governor or
22 the governor's office. One person who was very helpful
23 to me was Harry McLaughlin, who then was still a
24 Minnesota Supreme Court justice, I think. Could that be,
25 or could I be confused with when he helped me later? 0 251
(") ; I 1 It's confusing, you know, after this time, because
2 there's a lot of judgeships here.
3 MS. BRABBIT: But you remember him being
4 helpful to you during this one?
5 JUDGE MURPHY: Not necessarily, it could be
6 that I'm just conflating, because he was helpful in
7 advising me about the federal district court. No, I'm
8 quite sure, as I think about it, that he also gave me
9 some advice on this.
10 MS. BRABBIT: Okay.
11 JUDGE MURPHY: And there were various
12 people I talked to.
13 MS. BRABBIT: And just to recap, Rudy
() 14 Perpich is the governor?
15 JUDGE MURPHY: Yes. He had been the
16 lieutenant governor when Wendell Anderson was governor.
17 So everybody did whatever they did, and the governor's
18 office released that there were three finalists; they
19 were Rosalie Wahl, Roberta Levy, and me. And one of the
20 funny things about the way life works out is Roberta Levy
21 had been, I don't know if I mentioned her to you before,
22 but when I was thinking about whether I wanted to spend
23 the rest of my life as a writer or go to law school and
24 see what would happen, it was in January or something, I
25 ran into her at the pediatrician's office. 252
1 MS. BRABBIT: You did mention that.
2 JUDGE MURPHY: And she told me, she
3 encouraged me to go to law school; it was wonderful of
4 her. And the irony of this extends on in the process.
5 So anyway, she said it's wonderful, but have you taken
6 the LSAT, how did you do in that? And I said, no, I
7 haven't taken it. I just pictured taking it in August or
8 something. She said you have to take it right now, I
9 think there is one test, I think it's like next Saturday
10 or something. So I signed up and went in, never knew
11 what the test was or anything. But anyway, so it was
12 Rosalie Wahl, Roberta Levy and me. And at that time
13 Rosalie Wahl was teaching her course over at Mitchell,
14 and she had worked for Legal Assistance, and Roberta Levy ()
15 had worked at a law firm, maybe more than one firm, some
16 of it part-time while her kids were little, and she also
17 at some time had worked for the public defender, maybe
18 the state one, too, I don't know. And then you already
19 know what my experience was. They both had, Rosalie Wahl
20 had gone back to school late in life, too. I think she
21 graduated from William Mitchell in 1967. If that's the
22 correct year, that would be five years before I
23 graduated. And I don't remember right now when Bobbie
24 had gone to law school, but I think she went to law
25 school right after college, you know, in the regular way. C) 253
1 I don't recall. But anyway there the three of us were.
2 And one day I had the car radio on and, you
3 know, I knew that I hadn't been out of law school for
4 long, and to go from the municipal court to the supreme
5 court would be a little like our new appointment to the
6 court of appeals is a magistrate judge going to the 8th
7 Circuit, big jump. But he's been out of law school
8 longer. Anyway, I had the radio on, and it wasn't that I
9 thought I was going to get this, or that my heart was set
10 on it, I had a lot of time anyway, you know. But I just
11 thought, well, when I saw that list of women, I thought
12 why shouldn't my hat be in there. You know, if I had 0 13 looked at the list and it had been, I don't know who, but 14 people with more experience, you know what I mean, that
15 had so much more experience, and there were some lawyers
16 that I might have thought that about, but they weren't on
17 that list. So anyway, the reason I'm saying this, I
18 hadn't really set my heart on it and I knew what the odds
19 were, it's because of the reaction I had, it was
20 unexpected to me. I was on the way home from work and I
21 heard this on the radio that they had narrowed it down to
22 two finalists, and it was the other two. And I must not
23 have been far from home. I went home, I went in the den,
24 and at that time we had this big, brown leather chair,
25 and I curled up in that chair and I cried. I mean it was 254
1 a surprise to me that I was crying. But, you know, like
2 lots of experiences in life, you pick yourself up and you
3 go on. Like I say, I hadn't counted on it or thought I
4 was going to get it, although there had been some
5 promising things because people had talked to the
6 governor, had told me, oh, he's thinking positively about
7 you and it looks good, you know, things like that, which
8 had perhaps built up more than I was willing to
9 acknowledge.
10 Anyway, I think that weekend he appointed
11 Rosalie Wahl. No, it couldn't have been that weekend.
12 The sequence here, maybe the days are off, but what 13 happened was I wrote a letter to the governor and I C) 14 thanked him for -- I wrote a letter when Rosalie Wahl was
15 appointed, I wrote a letter congratulating her, and I
16 also wrote a letter to Bobbie Levy, maybe wrote a letter
17 to the two of them congratulating them on being
18 finalists, and I wrote a letter to the governor thanking
19 him for considering me. So the following Monday I got a
20 call from the governor's office.
21 MS. BRABBIT: Is this after you wrote the
22 letter?
23 JUDGE MURPHY: Yes. So that would have
24 been earlier in the week, you know, when this had all
25 happened. For sure he would have gotten the letter by () 255
1 that Monday. It was just this kind of letter that says,
2 you know, thank you very much, it was an honor to be
3 considered. And his assistant calls up and says the
4 governor would like to see you, can you come over here.
5 So I went over on the lunch hour and he invited me into
6 his private office and sat down, he was a very informal
7 kind of guy, and I didn't know him, you know. I had
8 been, my husband and I had been against the Vietnam war,
9 and Rudy Perpich had been one of the public officials, he
10 had been in the state senate, I had been at functions
11 with him, but I had never talked to him or anything. I
12 knew what he looked like, but as you would from the 0 13 paper. So he sat me down and he was real informal and he 14 sort of slides in his seat and he says, you know, I was
15 going to pick you until just the last day, or whatever
16 the day of the week had been, but then somebody pointed
17 out to me that -- and I knew which advisor this was --
18 that there had never been a justice on the Minnesota
19 Supreme Court that was a public defender, and that
20 appointing me would just be appointing another big law
21 firm person. And Rudy Perpich was a populist, so this
22 big law firm idea was bad, so the seed had been planted.
23 But anyway, that was really very pleasing to me, that I
24 had come that close. He said I decided on you but then I
25 decided, well, I could see that we should have a public 256
n~./ 1 defender. I never told anybody about this at the time.
2 It meant a lot to me that he had given me his time and we
3 had this conversation, and I'm sure I thanked him for
4 talking to me and whatever.
5 Well, then there was an opening on the district
6 court, and there's another judge who was helpful to me in
7 giving me advice at the beginning, my husband and I had
8 known him, he had been the scout leader of my husband,
9 Bob Bowen, very good reputation. And he was very, very
10 highly thought of. So all the judges thought he should
11 be going to this district court because he was a good
12 lawyer and a good judge and he worked hard, and so I told
13 him that I wasn't going to apply for it because I
14 appreciated what he had done for me. Well, then the
15 governor announced that he wanted to appoint a woman.
16 MS. BRABBIT: So the governor had announced
17 that there was --
18 JUDGE MURPHY: He was going to appoint a
19 particular woman to the position. And from information I
20 received as a judge there in municipal court, it was a
21 very surprising appointment. And as it turned out, other
22 people thought that apparently, and information was
23 brought to his attention, to the governor's attention,
24 that caused him to withdraw the appointment after he
25 announced he was intending to appoint this first person. C> 257
1 So then I went to Judge Bowen and I said, I know I told
2 you I wasn't going to put my hat in the ring, but the
3 governor has said he is going to appoint a woman to this
4 position and so I think I should. And he said, I think
5 you should, too. So then I wrote a letter, and then
6 almost immediately I got the call that the governor
7 wanted to appoint me to it. The reason I told you about
8 when I went in to see him before lS that I was very
9 honored that he bothered to talk to me in this cordial
10 way. I mean he didn't apologize at all, of course, for
11 his appointment, it was a very good appointment to the
12 supreme court. But I think if it hadn't been for that, I () 13 probably wouldn't have written the second letter. It was 14 so quick, because he was in a situation where he wanted
15 to fill that appointment, and it just, things lined up
16 apparently. So that was when I went to the state
17 district court.
18 MS. BRABBIT: Tell us about the
19 conversation that you had with the governor during that
20 appointment.
21 JUDGE MURPHY: Well, I already told you
22 about it.
23 MS. BRABBIT: Did you have a follow-up with
24 him?
25 JUDGE MURPHY: No, no, I never talked to 258
1 the governor, I don't think. I believe it was just his
2 assistant who called me.
3 MS. BRABBIT: Okay. I thought the governor
4 had c-a 11 e d .
5 JUDGE MURPHY: No.
6 MS. BRABBIT: Now tell us about the
7 transition from the
8 JUDGE MURPHY: Well, I think I said then I
9 got the, I believe it was a phone call from the
10 governor's assistant saying that he wanted to appoint me
11 to the district court; would I accept it. Of course I
12 said yes. So then I moved upstairs in the same building,
13 Hennepin County Government Center. At that time we had ,,-,--" / .. \ \\\,- ) 14 the two-tiered court, so naturally the municipal court
15 judges were on the lower floors and the state district
16 court judges were on the upper floors. Each court was
17 about the same size, there were about 17 judges, could be
18 even 19 on the state court. There were fewer on the
19 municipal court, maybe a little bit, so they were small
20 courts. Now it's huge courts, a consolidated court and,
21 of course, the caseload has risen.
22 MS. BRABBIT: Did you have an opportunity
23 to select individuals to present or speak at your
24 swearing-in?
25 JUDGE MURPHY: Yes, but this swearing-in
rr--~, l) 259
1 was interesting because it was a joint swearing-in,
2 because the person that was appointed by the governor to
3 fill my position on the municipal court was Roberta Levy.
4 MS. BRABBIT: So you did a joint
5 swearing-in with Judge Levy and yourself?
6 JUDGE MURPHY: I think so, or at least the
7 cover of the Hennepin County Bar Association was with the
8 two of us with our hands up. Maybe it was a separate
9 one. I can't remember. I remember my first swearing-in
10 the best because it was such a unique experience, and the
11 governor came and Judge Lebedoff robed me, and then they
12 took a picture of him kissing me on the cheek. You know, 0 13 when did you ever see a picture like that? You know, you 14 could talk about the times and the sexist things, but it
15 was a charming picture, I have to say. It was quite a
16 big picture in the paper. So I don't remember the
17 latter, the governor wasn't at the second one, and I
18 can't remember who spoke or anything. I mean if I put my
19 mind to it, I probably could come up with -- I know on
20 the second one I had two people robe me, I had Jonathan
21 Lebedoff, who was a district judge, of course, and
22 Stanley Kane, because I was taking Stanley Kane's seat,
23 and he was one of those judges whom all the judges
24 admired. He was very learned in the law. He died some
25 time ago, but his wife, Betty Kane, who had been active 2 ('') ,, ; 1 INDEX OF INTERVIEWS
2
3 February 6, 2006 Pages 3 - 31 4 February 28, 2006 Pages 32 - 65
5 March 2 0, 2006 Pages 66 - 121
6 April 11, 2006 Pages 122 - 164
7 May 2 5, 2006 Pages 165 - 206 8 August 8 , 2006 Pages 207 - 260
9 September 19, 2006 Pages 261 - 290
10 November 1 , 2006 Pages 291 - 327 11 December 2 0, 2006 Pages 328 - 358
12 April 2 5, 2007 Pages 359 - 390
13 June 2 6, 2007 Pages 391 - 430 (',) 14 July 3, 2007 Pages 431 - 473
15 August 2 3, 2007 Pages 474 - 501 16 April 2 5, 2008 Pages 502 -- 539
17 June 23, 2008 Pages 540 - 570
18 April 7 , 2009 Pages 571 - 607 19 May 21, 2009 Pages 608 - 64 6 20 June 23, 2009 Pages 647 - 685
21 February 18, 2010 Pages 686 - 705 22
23
24
25 0 261
1 ( September 1 9 , 2 0 0 6 . )
2 MS. BRABBIT: Today's date is
3 September 19th of 2006, and we continue with the oral
4 history of the Honorable Diana E. Murphy. Judge Murphy,
5 thank you again for convening to continue your oral
6 history. The last time we got together we had chatted a
7 bit about your transition to the Hennepin County District
8 Court bench, and that would have been in 1978. Is that a
9 good starting spot for you today.
10 JUDGE MURPHY: Well, you have to start
11 somewhere.
12 MS. BRABBIT: I think I'll go with that. 0 13 Can you tell us a little bit about what that transition 14 was like for you, and I would like to also just make a
15 notation that I believe this was one of your firsts of
16 many firsts, because I believe you were the first woman
17 to be appointed to the Hennepin County District Court?
18 JUDGE MURPHY: Oh, no, no.
19 MS. BRABBIT: Oh, I don't have that right?
20 JUDGE MURPHY: Well, I take it back. It's
21 possible, because Suzanne Sedgwick ran for election, so
22 she was elected to the Hennepin County District Court, or
23 she may have been elected to the Hennepin County
24 Municipal Court and then appointed to the district court,
25 to the family court position, so that's why I say no. 2 62 (' '·,.) 1 Sue Sedgwick was there.
2 MS. BRABBIT: When you took your position
3 as --
4 JUDGE MURPHY: Sh£ was Dn the Hennepin
5 County District Court, but she had become a judge
6 originally by running. She had the courage to run
7 against a judge who some lawyers were not high on and she
8 got herself elected, but I think she was appointed then
9 to the district court, too, but to a special seat. At
10 that time there was a special slot, Hennepin County Judge
11 of Family Court, which was a district court level, and
12 then she wanted to get out of that after she had served 13 there for some time but she wasn't able to get switched, CJ 14 so she got the legislature to change the law, ending its
15 unitary status and making the position just a regular
16 Hennepin County District Judge. There are many ways to
17 skin a cat, you know. But she was on the district court.
18 That must have happened before I was there, because she
19 was there.
20 MS. BRABBIT: I might be just one step
21 ahead of myself, because I'm quite certain you were the
22 first woman to serve as chief of the district court in
23 federal.
24 JUDGE MURPHY: Yes.
25 MS. BRABBIT: Okay, okay. 0 263
1 JUDGE MURPHY: I was the first woman to be
2 on the federal district court.
3 MS. BRABBIT: Okay.
4 JUDGE MURPHY: I believe I was the second
5 woman on the Hennepin County District Court.
6 MS. BRABBIT: And perhaps the first
7 appointed woman to that bench.
8 JUDGE MURPHY: Well, that's why I
9 hesitated, but I think that she had gotten appointed.
10 MS. BRABBIT: Tell us about the transition.
11 JUDGE MURPHY: When I went on the Hennepin
12 County Municipal Court, there was one woman sitting on 0 13 it, Delila Pierce. Well, it involved moving upstairs, 14 you know, you're in the same building. The chambers are
15 a little bit bigger, but the furnishings were quite
16 similar. The courtrooms were similar, but they were
17 bigger. At that time the judges didn't have their own
18 law clerk, but you did get one clerk or courtroom deputy.
19 Before I left I had one law clerk there, probably in the
20 last half of the second year I was there. You no longer
21 had to go to the suburbs to do the arraignments for
22 traffic court and minor offenses.
23 Well, of course, this was the court of general
24 jurisdiction in this metropolitan area, and so you had,
25 in the criminal area, all kinds of serious offenses, as 2 64
1 well as lesser felonies, but really many violent cases,
2 many mentally disturbed individuals who were repeat
3 offenders, and on the civil side you had all kinds of
4 cases from simple, little ones to_ gigantic cases. And at
5 that time it was a general calendar, so when we were on
6 civil, the clerk's office would assign the cases and the
7 lawyers, when they checked in in the morning, would be
8 told what judge to go to and they would bring the file
9 with them. So sometimes you would have two dozen lawyers
10 bringing up huge files ready for trial that you had never
11 seen before and, of course, they would have pretrial
12 motions and so on. It's not like in federal district 13 court where you would preside over the case, you would (_) 14 have ruled on all the motions, you would have gotten jury
15 instructions and so forth from the lawyers before they
16 arrived. Here you didn't have anything, and it might be
17 an area of law that you were very familiar with, it might
18 be something you had never dealt with. And typically on
19 the motions, they would be arguing about the
20 applicability of some case or another, and I would go
21 over and pick a book off the shelf that had the case that
22 they were arguing about, typically from the Minnesota
23 Supreme Court, and you would read it with them all
24 sitting there, you know, and rule. In many ways it was
25 sort of a free-for-all. 0 265
1 The motions were handled on special term. I
2 mean after you got the case for trial, of course, any
3 motions after that you would be dealing with, but all the
4 discovery motions, the summary judgment motions and so on
5 were all handled by the special term judge, and you took
6 turns being the special term judge. The lawyers would
7 find out which judges were going to be on special term at
8 what time, and then they would go to the judges that they
9 knew were going to be willing to rule on cases and not
10 just turn them over to the next judge. So you would end
11 up, Judge Amdahl, for example, and I would have maybe 23
12 cases on a day and Judge X would have two, so it was a 0 13 very unfair distribution of the work. And you would get 14 cases where there was, you know, discovery abuse of some
15 kind, and many of the judges would say, well, don't do it
16 again and wouldn't impose any sanctions. And then
17 finally there would be a judge who would do it, but you
18 see they would just get kicked over. So that was a
19 feature of this general -- they now have an individual
20 calendar system, I'm not sure how it works exactly.
21 I tell you, at the time I moved to federal court
22 I thought, well, it was awesome to be moving over to
23 federal court because I had practiced in it when I was
24 practicing law and there had been very high-level, very
25 well-prepared and good lawyers, so I thought that's what 266
1 I would be finding when I went over to federal court. In
2 retrospect, I had just been fortunate in the cases that I
3 had been involved in because they happened to have
4 well-prepared lawyers and so on on the other side. There
5 was a wide disparity in the lawyers when I arrived in
6 federal court.
7 But to go back to the state court, you got some
8 wonderful trial lawyers, because this was a trial court.
9 You never had as many trials in federal court because
10 many of the lawyers were, the good ones, were able to
11 evaluate and settle the case because there were cases
12 that probably had been going through the state courts 13 I don't know the reason. But I saw wonderful lawyers in 0 14 the state court. Not in every case, but many of the big
15 trials, and that was exciting. Another thing that I
16 liked about the state court was the jurors would just
17 basically serve for one trial and then they would be
18 excused. Many of the judges had the practice of talking
19 with the jurors and debriefing them afterwards and
20 finding out how they saw the case and so on. It was very
21 illuminating, you learned a lot, and I loved to do that.
22 In federal court it didn't feel right to do that because
23 the jurors there serve for three months at a time and
24 they serve on more than one case, and so you can't help,
25 by the kind of questions you ask the jurors, or the 0 267
1 interchange, you would be in danger of influencing them
2 for some future jury work, so I lost that when I moved to
3 federal court. I enjoyed that very much. But you had
4 every kind of case from large, huge, million-dollar
5 cases, whether they were fraud or products liability or
6 whatever, and then a lot of serious felonies.
7 And there, the public lawyers, the prosecutors,
8 as well as the public defenders, would pretty much be
9 operating by opening the file on the day they were going
10 to start the case. I mean somebody would have subpoenaed
11 the witnesses, this is particularly true for the
12 prosecutor, because the volume of the cases is so high. 0 13 So that's a very different situation where you have the 14 defense lawyers coming in more prepared than the
15 prosecutor, and the prosecutors not having that many
16 resources to call upon. I mean they might have some
17 police officers, but they wouldn't have really trained
18 witnesses like you see in federal court. Everything was
19 a lot more unpredictable, and you had a lot of cases of
20 first impression, they had never been handled before, new
21 theories, and that was fun.
22 There was a very frustrating voir dire culture
23 because the voir dire would take, in a big case it would
24 take some days, because the lawyers, other than the
25 original questioning of the judge, the lawyers did the 2 68
1 voir dire. I remember when a prosecutor, a federal
2 prosecutor moved over to state court, it was after I was
3 gone, but she limited the voir dire there and got
4 reversed by the state appellate court. So there's a
5 culture that defendants have come to regard, or defense
6 lawyers, as the right to ask questions over and over
7 again of these jurors. So you had some ability to be
8 reined in by defining areas that were appropriate for
9 their questions, because they wanted to really give
10 instructions on the law but, you know, that was a
11 management challenge because of the culture of it. That
12 was the practice, and it had come to be viewed as the 13 rights of the parties, and particularly of the defendant C) 14 in a criminal case. Just a wide variety of lawyers all
15 the time, I said that already, but it was really
16 interesting and challenging.
17 MS. BRABBIT: Did you ever feel as though
18 you didn't receive the same level of respect from any of
19 the attorneys that appeared in your courtroom?
20 JUDGE MURPHY: I've been a judge so long,
21 you know, I have to stop and think. It's hard to know
22 whether their reaction is because you're a woman or just
23 because you behave differently from what they're used to.
24 I always remember, on one case I got, it was a big
25 insurance case, and this was early on, and I had some 0 269
1 dealing with insurance law when I was in practice but I
2 wasn't an expert, and they started to argue about some
3 issue, and it related to a binder, and I wasn't sure what
4 a binder was. I could guess what a binder was and, in
5 fact, I guessed correctly but, you know, it was too
6 important. And you do this all by the seat of your pants
7 is what I'm saying, because in other words you could go
8 look it up but there isn't time, the jurors are waiting,
9 you've never seen this case before, and so I asked what a
10 binder was, and somebody gave me the answer without
11 particular expression. But I heard very quickly that
12 this one lawyer had said, "but she didn't even know what
13 a binder was. II Or behind my back they would say, "Oh, I '(__)[' 14 got Murphy and, you know, this involves some kind of
15 mechanical apparatus or something, she's not going to be
16 able to understand that. II That's before the trial
17 proceeds. So they didn't say in front of me, "well, this
18 is a machine, golly, you won't be able to get this," but
19 I don't think, you know, with the male judge they
20 wouldn't be gossiping behind, and they say it to other
21 judges. So if the judge is a friend of yours
22 maybe they'll tell you, and I always thought it was good
23 to know what people are saying. It's better to know than
24 to be blissfully ignorant, but I think some of that
25 definitely was because I was a woman and they had certain 270
1 preconceptions.
2 MS. BRABBIT: How about the culture on the
3 bench with your colleagues? Did you find that was a good
4 working culture? What challenges were there?
5 JUDGE MURPHY: I think I've talked to you
6 about that a little bit because I may have gotten into it
7 when I was talking about Hennepin County judging. I
8 think I talked to you about judges' meetings?
9 MS. BRABBIT: That's not sounding familiar
10 to me.
11 JUDGE MURPHY: Okay. Well, at that time
12 the Hennepin County District Court was about, I would
13 say, 17 judges and they had regular meetings, and there
14 was one senior judge, not senior in the way that federal
15 judges are senior, you know, the difference between
16 senior and active judging, but senior in the sense 0£
17 time of service. And he sat down at the end of the table
18 with the court administrator and there would be a big
19 space and then the rest of the judges would sit down
20 here. He wasn't the chief judge at the time. I quickly
21 perceived why that was, because he cut up whoever wasn't
22 there, and he might also attack somebody who said
23 something that he thought was worthy of attack. So I
24 could see it was a very important thing to be at every
25 meeting. I've thought about him many times, because he 0 271
1 must have been an unhappy man. He was a capable judge
2 but he spread things about me behind my back that weren't
3 true, and he did that for other judges probably that
4 weren't true. I mean saying that -- I don't even want to
5 get into it, it's not worth it. But on the other hand,
6 he could be, he had a case -- I thought I had told you
7 this, the concentration camp?
8 MS. BRABBIT: I don't think so.
9 JUDGE MURPHY: He had a case that a man
10 wanted to change his name, it wasn't a concentration
11 camp, but he wanted to change his name to a number. It
12 was a number, I don't remember now, but maybe seven 0 13 numerals, and this judge didn't think that was right. He 14 knew that I had studied in Germany, so he called up and
15 he wanted to, he didn't ·understand these numbers. He had
16 read about the numbers, and they had KZ in front of them,
17 and he wanted to know what the letters in front of the
18 numbers meant. And so he asked and I told him what that
19 meant, and then he denied the guy's -- this was on the
20 motion, it was special term, sort of an interesting case,
21 he denied the guy the right to, the guy felt it was a
22 first amendment right and everything to change his name,
23 it was a very unusual case.
24 At that time any appeal from the municipal court
25 or the district court went to the supreme court and, of 272
1 course, there were so many cases that pretty much 0
2 whatever you did was okay, whether the parties liked it
3 or not. I got reversed on something, and he called me up
4 and he said, you know, don't feel bad about this. I mean
5 I didn't, because I understood the system and it's part
6 of the system. And he said, you know, it's important to
7 get reversed because it shows that you're brave and you
8 do what you think is right, and he was quoting, you know,
9 so and so, who was a wonderful legendary judge and so on,
10 so that was a very nice, kind thing to do. I've
11 meandered off on this, but it was just sort of some of
12 the striking things.
13 MS. BRABBIT: Who were some of your other
14 mentors at that time in your professional development? 0
15 JUDGE MURPHY: Well, I had a trial that was
16 really one of the most interesting I ever had, and it
17 ended up in a very large verdict, and that may have been
18 the best-tried plaintiff's case I've ever seen. Boy,
19 that guy was a good plaintiff's lawyer, he wasn't from
20 Minnesota, and he was really outstanding. He succeeded
21 in turning these corporate witnesses into monsters. It
22 was a fraud case brought by a high executive employee who
23 had moved here to this big corporation and was promised
24 XYZ and so forth. So the corporation really fought this
25 afterwards, and I wanted to talk to somebody about it, C) 273 n 1 and I went to see Judge Amdahl, I respected him a lot.
2 But that was about the only time I ever went to talk with
3 another judge about anything, and that was just about my
4 post-trial motion. And it wasn't about the motions, it
5 was just more about some of the issues. Not expecting
6 him to, because he wasn't up on the law, you know, but
7 just to get his gut feeling. So I don't want to go into
8 the details about this case, but if you would say do I
9 have a mentor, he wasn't my mentor, but on that one
10 occasion I did go and talk to him and he was glad to sit
11 down with me.
12 You know, people think that judges sit around
13 and talk with each other, but you don't have time. In
0 14 fact, that experience helped me see that even more. But
15 I always recognized that everybody has got their own work
16 to do, and in order to explain what your question is that
17 you're debating you have to fill in so much. It's just
18 not a good use of time.
19 MS. BRABBIT: On the flip side, were you
20 finding at this point in time that more women attorneys
21 were coming to you and saying, you know, can I talk to
22 you about your past? Had that started to happen already
23 at this point?
24 JUDGE MURPHY: Well, it happened even when
25 I was still at the law firm because there weren't many 274
1 women that were at big law firms at the time, and it was
2 probably because I was older than the women, even if they
3 were classmates. More life experience. I don't know.
4 MS. BRABBIT: So would you take the time to
5 meet with these women?
6 JUDGE MURPHY: Every one that's ever tried
7 to talk to me. I made it a priority, I really have. You
8 know, when I think about these women as a class, they
9 don't really have anyone they can talk to that
10 understands the legal environment where they may be
11 working and that doesn't have any axe to grind and they
12 know won't talk to anyone about it.
13 MS. BRABBIT: And did you also
14 JUDGE MURPHY: And the more of the women 0
15 you hear, the more helpful you might be to people in the
16 way this experience is not unusual, or maybe sometimes it
17 is unusual.
18 MS. BRABBIT: At this point in time you had
19 so many connections as an attorney, and I know you have
20 done this for women, I want to have an understanding how
21 prominent it was at this stage. Making that phone call
22 to help another women advance, or connecting with a
23 lawyer in town, help someone coming behind you, or
24 writing a letter or reaching out or helping other women
25 to advance in the profession; would you find yourself 0 275
1 doing some of those things for women who were coming to
2 you asking for your advice and your insight and guidance?
3 JUDGE MURPHY: Well, of course, judges are
4 prevented from doing some of what you suggest. Sometimes
5 I've been able to put in words for people, but you're
6 more limited than you are if you're not a judge because
7 you can't talk to a law firm about it because then it's
8 like they owe you a favor, do you see what I mean?
9 MS. BRABBIT: I see.
10 JUDGE MURPHY: So a lot of my value, to the
11 extent that people have felt it was a value, is in
12 listening, being a knowing listener, and in asking
13 questions for them to think about, and in saying what
14 some people have found to be good alternatives, or in
15 just making suggestions of my own about what they might
16 do, what they might consider. But the more you talk to
17 them, you get to be sort of a professional. But as far
18 as community activities, you know, I've been heavily
19 involved in them from the time when my children were
20 toddlers.
21 MS. BRABBIT: And I believe at this point
22 in time when you were on the Hennepin County District
23 Court bench, that was, weren't you president of the Bar
24 Foundation? I believe you were, maybe that was a little
25 bit later, but the Minnesota State Bar Association Board 276 () 1 of Governors at that time as well?
2 JUDGE MURPHY: R+ght, I was co-chair for
3 one year of the Hennepin County Bar Association Program
4 Committee, and at that time ~here were meetings, I think,
5 every two weeks, and made a lifelong friend in Tom
6 Keller, because I didn't know him at all but we were made
7 co-chairs. I was on the governing council of the
8 Hennepin County Bar Association, too. I was chair of
9 Operation De Novo, which I think still exists, but it was
10 a young organization then, and I had been chair of the
11 Minneapolis Charter Commission but I had to give that up
12 when I went on the bench. I was involved in the Hennepin
13 County Pretrial Diversion Program, and there were some r·,,_) 14 very rocky issues that came up. An employee sued the
15 board, it was a nonprofit board. Did I tell you this
16 before? I don't think so.
17 MS. BRABBIT: I think we talked a bit about
18 Operation De Novo, but I don't think you talked about
19 this suit.
20 JUDGE MURPHY: Well, right away some of the
21 people quit as soon as there was this lawsuit, and I
22 remember being at the law firm and getting served,
23 getting a call from the secretary saying, there's a
24 United States marshal here to serve you, she chirped real
25 happily, and I thought, my God, what happened, and I tell 0 277
1 you my heart beat -- it was quite a ways from where my
2 office was to the reception desk. And I was chair of the
3 board at this time. I hadn't been at the time that this
4 woman had the experience that she was complaining about.
5 So I had to get a lawyer, and she sued in federal court.
6 Judge Earl Larson found that because we got some state
7 money we were state actors. It's a completely
8 independent, nonprofit organization. We had a volunteer
9 attorney that represented us, and he got the case
10 settled. That was a great disappointment when we were
11 found to be state actors. I mean that was a far-out
12 decision by the federal judge. But it was a decision.
13 And, you know, you don't like to work on a volunteer
0 14 board and have to hire yourself a lawyer, but I got a
15 very good one through legal advice clinics. He was an
16 employment law specialist at Faegre & Benson.
17 MS. BRABBIT: How long were you
18 JUDGE MURPHY: I was on the board of
19 Amicus which -- I don't know if I've mentioned my friend
20 Neil Riley to you. He was on the Hennepin County
21 District Court, and befriended me from the beginning, and
22 then I went on the district court before he did, but then
23 he got himself elected to the district court, and he
24 always was a big fan of mine, very supportive. I told
25 you about him coming to see me in the hospital every day. 278
1 MS. BRABBIT: When were you in the
2 hospital?
3 JUDGE MURPHY: When I went on the municipal
4 court I -had surgery scheduled. I had all of the
5 metatarsal joints resected, in other words, cut out, so
6 ten joints, and the doctor wanted to do it all at one
7 time. I didn't tell you about this?
8 MS. BRABBIT: I don't believe so, Judge.
9 JUDGE MURPHY: Well, that was pretty
10 traumatic because actually I was in the hospital for five
11 weeks. They do it differently now. But five weeks in
12 bed, you can imagine how weak you are when you get up 13 after that. So I talked to the chief judge about it in (J 14 municipal court. Here you are, the endangered woman, and
15 you right away have to take leave because you're so weak
16 as to have to have this surgBry. I talked to him about
17 two things; one about going to some seminar, educational
18 seminar, and I think I told you that, and he said, no,
19 no, do that later, and I realized it was just because
20 they wanted somebody there doing the work, you know, and
21 it didn't matter, worked out just fine, but he said, no,
22 you should go ahead with it right now in the summertime.
23 So I was sworn in in May and I had the surgery at the
24 beginning of June. Not the way you want to start, you
25 know. I was in the hospital, as I told you, for five 0 279
1 weeks and then had to recuperate from home for a little
2 bit.
3 MS. BRABBIT: And Judge Riley, was he a
4 judge at that time?
5 JUDGE MURPHY: Yes, and I didn't know him
6 at all. Another thing they did, and I know I told you
7 this, and they wouldn't have done this to a man. They
8 didn't give me a chambers because Judge X had a trial and
9 he was too busy to move, because he wanted to move to a
10 different chambers, and Judge Riley had commented, you
11 know, was the only one that said this isn't right, you
12 know, and can I help, which was very nice of him. Well,
13 then soon I went into the hospital, and all of a sudden
(J 14 he showed up at the hospital. And every weekday that I
15 was in that hospital, he may have missed one or two days,
16 he came by, he lived in Wayzata, he lived on Lake
17 Minnetonka, he came by my hospital room. At that time he
18 was a very dashing-looking guy, and he had this white
19 linen suit, I'm sure he had more than one because they
20 always sparkled, you know, and the nurses would say,
21 you've got to hurry, we've got to get you cleaned up here
22 because Judge Riley will be coming. And he would just
23 stay for a few minutes, you know, but it was such a
24 wonderful thing. One day his wife came to see me, I
25 think she just wanted to see what is this. And he would 280
r, __ ) 1 always, like if he got done with his work and I had a
2 difficult calendar, he would offer to take some of the
3 stuff. There were many wonderful people.
4 MS. BRABBIT: Was he on municipal court or
5 the district court?
6 JUDGE MURPHY: Well, he was on the
7 municipal court. I was appointed to the district court
8 and then subsequently he got himself elected to the
9 district court, so he came after I did. But why I
10 thought of him right now was he was really the founder of
11 this Amicus, which is a wonderful organization that is
12 devoted to trying to prevent prisoners from recidivating,
13 and they link up a volunteer with the prisoner while the
14 prisoner is in the institution, and Amicus is the Latin 0
15 word for friend. And this volunteer goes in, visits the
16 person in the institution~ helps find a place for them to
17 work, a place to stay, and it's made a difference in
18 many, many people's lives. So I was on the board of
19 that, and I started an advisory council and was the first
20 chair of that. I was on the board of the University of
21 Minnesota Alumni Association and held various offices in
22 that. I became the national president just after I went
23 into federal district court. There was a Victims
24 Advisory Council, I was on the board of the Harriet
25 Tubman Battered Women's Shelter, I was on the Crime and 0 281
1 Justice Council or Board, you know, you forget what some
2 of the names of these things were. I had resigned some
3 things when I became a judge. The Civil Liberties Union,
4 I resigned that at some point. I'm not sure if I
5 resigned when I was in state court, but I certainly did
6 before I went to federal court, but I would have to look
7 at the years.
8 MS. BRABBIT: I have '73 to '75.
9 JUDGE MURPHY: Yes, when I was about to
10 move to the district court, the state district court,
11 where you would be more apt to run into the MCLU.
12 MS. BRABBIT: How did you balance your work
13 on the bench with your significant volunteer activities
0 14 and a number of initiatives as far as leadership
15 positions and then obviously everything at home; what
16 tools did you rely on?
17 JUDGE MURPHY: Well, as I said, I don't
18 play golf. Most of my colleagues over there played golf
19 all the time. Well, you know, you have to set priorities
20 about what to do when, and deadlines. While you do write
21 some opinions in state court, you don't have time to
22 write big, long ones, and you write more limited findings
23 and conclusions, so you don't spend the time. It's more
24 done in the courtroom. You've got to be on your toes as
25 far as that goes. And, of course, you've got to do some 282
1 research outside of the courtroom. Not every judge does,
2 but I felt that I needed to anyway. I don't know, I 've
3 always liked being involved with other people. I really
4 think thatj in fact I know, that having been involved in
5 a lot of other organizations and leadership, it gives you
6 some perspective on things. You understand the needs
7 people have. You also learn how to handle people, and
8 that's a lot of what trial judges do, you have to handle
9 people, you have to move things forward, you have to
10 prioritize the goals of whatever, you know, what needs to
11 be done now. So I learned a lot from my involvement in
12 activities outside of the court.
13 MS. BRABBIT: In terms of the demands of
14 the job, were you finding that you were bringing work 0
15 home? You hear about a lot of people who talk about kind
16 of a 24/7 environment. Was that what you experienced?
17 JUDGE MURPHY: Well, the subject of taking
18 work home, I'm a little uncertain about. I mean I always
19 have taken work home from the day I started on the
20 federal bench. You've got to read about so many cases
21 that are happening and so forth. But I did read all the
22 Minnesota Supreme Court cases, of course, on a regular
23 basis, and you don't have time during the day to do that.
24 Certainly on times when there was a particularly sticky
25 thing where I was going to write opinions or findings, 0 283
r"'\ ) 1 I'm sure I took them home. I certainly thought about
2 things and how to handle things when I wasn't at work.
3 It wasn't lengthy homework, lengthy written homework that
4 you have as a federal judge, although I daresay there are
5 some federal judges that may not do it that way. I don't
6 know of any court of appeals judge, I don't know all of
7 their work habits.
8 MS. BRABBIT: So before we move forward and
9 talk about your next transition, are there any other
10 things you want to highlight in terms of your greatest
11 challenges and your greatest joys about your time on the
12 Hennepin County District Court bench?
13 JUDGE MURPHY: Well, the variety of cases
0 14 and all the different lawyers and working with the
15 juries, even the spontaneity of it all. You know, you
16 would get to know the lawyers that are frequently in
17 court and that's a joy, too, is you get to, for some of
18 them at least, it was a joy to get to know some of them,
19 and you see them on a recurring basis. In federal court
20 you only do that with the criminal lawyers. And once
21 you're on the court of appeals, you're so far removed
22 from them.
23 MS. BRABBIT: On the variety of lawyers, I
24 have to ask if you have a recollection of how often, or
25 if you're able to give a percentage of the gender split 284
1 of attorneys that appeared before you?
2 JUDGE MURPHY: Well, it was mostly men. I
3 think I told you this. I remember one day on municipal
4 court·, · it was j us t the 1 a wye rs. in the case , . and a 11 of a
5 sudden I realized it was only women in the room, which I
6 pointed out, you know. It was a very special moment.
7 But they were government lawyers. Very few women at that
8 time appearing that weren't working for the government.
9 I noticed a big change when I moved to federal
10 court. All of a sudden there would be sitting at counsel
11 table a woman. She wouldn •·t do the talking, but they
12 would bring a woman along to sit there. I mean it was
13 such a primitive way of trying to please the judge.
14 MS. BRABBIT: You served on the Minnesota
15 District Court from 1978 to 1980, so approximately two
16 years, and then you had another transition in 1980. Tell
17 us about that, Judge.
18 JUDGE MURPHY: I just want to step back and
19 say something about the bar association, because that was
20 a great thing, being so involved in the bar association,
21 because you're meeting lawyers from all over the state,
22 or in the Hennepin County situation, in all areas of
23 practice, and many would appear in front of you and you
24 would build relationships. It was just a lot easier
25 working with lawyers that you know and know you. 0 285
1 MS. BRABBIT: You were on the board of
2 governors for quite some time, from 1976 to 1981.
3 JUDGE MURPHY: I quit when I went on the
4 federal court. Not immediately, but I didn't go further.
5 If I had stayed there, you know, I probably would have
6 gone on to be more involved nationally. Of course, I was
7 involved as a federal judge in a lot of ABA committees
8 and stuff, but it's a little bit different.
9 Well, President Carter made a huge difference
10 for women in the federal courts. He also believed in
11 open nominating systems, and so he set up, for all court
12 of appeals positions, nominating commissions, and urged
13 the local senators, or whoever would be involved, to set
0 14 up nominating commissions, and in many states they did.
15 Now there were a few places that already had worked out
16 something, like New York, where they had a system, and
17 they still have it, where they rotate. There will be,
18 you know, so many federal judges of this party and so
19 many of that. I mean it's changed, you know, how it
20 works. I mean if they're all Democrats, they aren't
21 going to be necessarily appointing Republicans, so in New
22 York you'll see so-and-so appointed in such year, and so
23 people will think that person is Republican, but actually
24 the person was Democrat but working in that system.
25 Anyway, in most cases the system was very, you 286
1 never knew who was going to get the appointment or how
2 they would get it, and so Carter didn't believe in that,
3 he wanted to open it up. He was particularly interested
4 in getting women and minorities, and he believed that if
5 they were able to apply and there was a commission that
6 would be looking fairly and not just looking to see who
7 had been friends in college, he would find people to
8 appoint. So in Minnesota, this was a Democratic
9 president, Vice President Mondale was vice president, but
10 both senators were Republican, Durenberger and Boschwitz.
11 And so anybody that the president wanted to nominate
12 would have to get by the Republicans, who at that time
13 had a majority in the senate, and so the vice president
14 and the senators agreed that, well, they appointed a CJ
15 committee of, I think there were 12 on it and they had
16 co-chairs, one appointed by Vice President Mondale and
17 one by Senator Boschwitz, and then each side would
18 appoint five members of the commission, five other
19 members of the commission. So then Durenberger got to
20 appoint three and Boschwitz two, because he already had
21 the chair, do you see what I mean?
22 MS. BRABBIT: Um-hum.
23 JUDGE MURPHY: But Vice President Mondale
24 made the unusual agreement with the senators that the end
25 product, the president would appoint one Democrat and one 287
1 Republican. So the vice chairs of this, I can still
2 remember, you know, were John French and Jim Rosenbaum.
3 So if you were interested in this you had an application
4 that's very similar to the Senate's application form.
5 You have to put in cases you've tried, you've been
6 involved in, the lawyers on the sides, you've got to put
7 in everything. It's unbelievably hard work to do this.
8 I don't remember if it was 35 pages in the end or 40, but
9 it was a really, really big undertaking, and I was so
10 busy doing the trial work, and you couldn't just tell the
11 office not to send you any cases.
12 Minnesota Women Lawyers, in those days, was very
13 active in trying to get women appointed, and they came up
0 14 with four women; Judge Sue Sedgwick, Judge Roberta Levy,
15 who took my place, when I moved to the district court she
16 took my place, and you remember she was on that list for
17 supreme court, Minnesota Supreme Court, and a wonderful
18 woman, naturally I'm not thinking of the name, I thought
19 of her a short time ago -- Delores Orey. She eventually
20 became a judge of the municipal court. And so the way
21 the process worked is you submitted this application, you
22 had to say why you wanted to be a federal judge also, but
23 you had to go into great detail about your background and
24 all the things you've done in your life. Then the
25 nominating commission decided which people they were
\J 288
1 going to interview, and that was nerve-racking because I
2 was very conscious of the fact that because I hadn't been
3 out of law school that long that I could be seen as quite
4 an upstart, you know what I mean, and when there's
5 something that a lot of people want, they may fight about
6 it in any and all kinds of ways. And so the first issue
7 that was put up against me -- well, perhaps that may have
8 come later in the process was that I had been out of
9 law school a short period of time, and there was no
10 denying that, that was a fact, and I expected that to be
11 an issue, and that was a very fair issue. But then they
12 weren't making any headway in eliminating me they felt,
13 and so then the issue became the fact that I had
14 arthritis, and I really thought that that was a low blow 0
15 because, you know, I unfortunately had had arthritis when
16 I did almost everything that I've done. To my way of
17 thinking, it wasn't a valid consideration because I had
18 shown that I could work and be active, despite having
19 rheumatoid arthritis which, you know, is not a disease to
20 treat lightly and, you know, there were many painful
21 things that you hear in that process. For example, Doug
22 Amdahl, who I respect tremendously, I heard that he was
23 telling people that I shouldn't get it because of the
24 arthritis. Well, there are those moments you get, you
25 know, along the way. 0 289
1 Anyway, the committee shortened it down to a
2 list of ten, or was it nine? I think it was ten. And
3 this list contained two women and eight men, and the
4 other woman on it was Joyce Hughes, who hadn't been part
5 of the process, she hadn't submitted her name to
6 Minnesota Women Lawyers where you could, you know, tell
7 them you were interested in it, and she was teaching at
8 Northwestern in Chicago. She had clerked for Earl
9 Larson, and she had gone to the University of Minnesota
10 Law School. She's a black woman, have I mentioned that?
11 MS. BRABBIT: No.
12 JUDGE MURPHY: So here you had a very
13 well-qualified and attractive black and she at that
0 14 time was teaching at the University of Minnesota Law
15 S~hool -- no, she was teaching there when I was in law
16 school, but now she had moved to Northwestern, she had
17 moved to Chicago. So in the background was hovering the
18 fact that the president wanted to appoint minorities and
19 women, and she was the only person of color that was on
20 the list and, of course, she a woman and very
21 well-qualified. Her defect, if she had one, was that she
22 was living in Chicago. But obviously if she got it, she
23 would have moved back to Minnesota. Most of the people
24 on the list were Democrats. You recall that one had to
25 be Republican and one had to be Democrat. The
\"-.... / 290
1 Republicans on this list, Kelly Gage, he was president of
2 the state bar association.
3 MS. BRABBIT: What was the last name?
4 JUDGE MURPHY: Gage, G-A-G-E. Bob Renner,
5 you know, who did get it, and Bob Henson from Henson &
6 Efron. And possibly the reason that Sue Sedgwick never
7 got on the list, arthough nobody knows why they didn't
8 put people on the list, she always thought, she said
9 publicly that they didn't put her on the list because if
10 they would have put her on the list they would have had
11 to appoint her. But they asked everybody if they were a
12 Democrat or a Republican, and she said that she was
13 neither, she was an Independent. And from what I hear,
14 that was the reason, you know, they had this deal that 0
15 one was going to be a Republican and one was going to be
16 a Democrat. But I don't know. Who knows why she wasn't
17 selected, or why anybody wasn't selected. But obviously
18 in the end you realize that I got one and Judge Renner
19 got the other one. But that was a pretty nervy thing to
20 put myself up, I have to say.
21 (End of session.)
22
23
24
25 C) 291
1 (November 1, 2006.)
2 MS. BRABBIT: Today's date is November 1st,
3 2006, and this is the eighth taping of the oral history
4 of Judge Diana Murphy.
5 JUDGE MURPHY: I said it was a nervy thing
6 for me to apply to be a federal district judge at that
7 time, and by that I meant that I had only been out of law
8 school for five years. No, six years. I had been in
9 practice for about two years and I had been a state trial
10 judge for going on four years. The ABA standard at that
11 time was 15 years of practice as a criteria, their
12 criteria for federal judgeships, but I felt that I had
13 had significant experience as a state district judge, and
0 14 the nature of the work that I did at Lindquist & Vennum,
15 plus what I did in the community and in legal circles
16 before I went to law school. But it was one of the
17 things that, this is a very competitive thing, especially
18 when you have an open process like this and everybody
19 knows who the other candidates are and each candidate has
20 some supporters. So this was an obvious thing that could
21 be attacked. However, that didn't seem to be destroying
22 my candidacy in relation to this nominating commission.
23 I think I may have already mentioned what came back to me
24 next was the fact that I had arthritis, rheumatoid
25 arthritis. 292
1 The first issue seemed to me to be a completely 0
2 fair issue, no question, that was an issue. When I
3 graduated from law school, you know, together with
4 anything else that I had done, that was a very good
5 issue, legitimate one, but the health one I didn't think
6 was. I realize, of course, a lifetime appointment, you
7 want somebody who is going to be able to be there to do
8 the work and have the energy, but I had had rheumatoid
9 arthritis throughout my adult life and had accomplished
10 the things that I had accomplished with it, and so it
11 seemed to me to be a low blow.
12 After the commission came up with the ten names,
13 then it was up to Vice President Mondale, I think, to
14 select the Democrat, and then the Republican senators to 0
15 select the Republican, but under the agreement the
16 individual had to be acceptable to the other side, and so
17 you hear, you know, feedback when you're in a process
18 like this. And Senator Durenberger and I had been, I had
19 been on the Minnesota Constitutional Study Commission,
20 and his mentor, Elmer Andersen, former governor, was one
21 of the two co-chairs, and David Durenberger was hired as
22 the sort of director for the commission, the staff
23 director, and so I knew him from that and also from other
24 community things. I didn't really know Senator
25 Boschwitz, and I heard that he was quite concerned about 0 293
/~ I ; 1 the length of time that I had been in practice and, of
2 course, may have had another candidate, and I think
3 probably did have another candidate from the list of the
4 Democrats that he would have preferred, but in the end
5 obviously I got that Democratic seat. And I'm talking
6 now just about the nominating commission. But that's not
7 the end of it.
8 Then the next thing, of course, is the ABA, and
9 the old two issues, of course, were of some concern. The
10 Missouri representative, he was the Eighth Circuit
11 representative on the committee, the ABA committee that
12 reviews the judge nominations, was most concerned about 0 13 ·my health, and it's ironic because, of course, I'm still 14 working full-time and so on, and some of the other
15 candidates that had health problems at the time were not
16 looked into at all and, sadly, they weren't able to last
17 so long. So it's one of those things, I guess, I
18 mentioned to you offhand. Well, then it got through the
19 ABA then, of course, and I was an unconventional
20 candidate; you know, I went to law school later in life
21 and so on.
22 Then you had the Senate and, of course, the
23 Department of Justice, and Griffin Bell was the Attorney
24 General at that time, very distinguished individual, but
25 described to me as part of, sort of the old boy's network 294 0 1 from the South. I got word at one point that if I were
2 going to get through I would have to get word to Griffin
3 Bell through some friends of his, southern friends,
4 because he was very concerned about the time I had been
5 out of law school. You know, these processes can be so
6 strange. And I thought, well, you know, how am I going
7 to do that? Well, any challenge in life, it comes along,
8 and then sometimes it looks insurmountable but you begin
9 to think. Anyway, after thinking, I thought of one
10 connection, and that individual's brother was a friend of
11 Griffin Bell's and knew me and was very happy to talk to
12 him. I just called a friend of mine that was a very 13 supportive individual, a businessman, had been active in 0 14 Democrat politics, and he put his head to it and he
15 thought about a businessman in Atlanta he knew was sure
16 would know Griffin Bell well, and did, and so anyway
17 obviously you know the outcome.
18 One thing about Griffin Bell is years later when
19 J. Harvie Wilkinson, recent candidate for the Supreme
20 Court, and on the short list of George W. Bush, talked
21 about his being chief justice, he's so respected by all
22 the federal judges, but he was a candidate for going on
23 the Court of Appeals when he had only been out of law
24 school about the same time I had, and he had not had as
25 much practice but he had clerked for Justice Powell and 0 295
('\ ) 1 had his strong endorsement, but he was controversial.
2 And I'm glad to say that, because it wasn't just a woman,
3 you know, that had this. But I saw in the ABA Journal
4 Judge Bell's statement that, well, you know, you can't
5 just go by the length of time, because we had this woman
6 who was out of law school five or six years and she's
7 just been outstanding, and that made me feel really good,
8 and then I got to be a friend of Jay Wilkinson in later
9 days. We were both on the board of the Federal Judicial
10 Center and I told him that story, and we both had a
11 chuckle about it.
12 But anyway, then you get to the Senate. When I 0 13 arrived for the hearing, Bob Renner and I went together 14 to Washington, and we went over to the Justice Department
15 and got a briefing and then we went over to Senator
16 Durenberger's office. He wanted us to come by, and he
17 said, you know, the National Rifle Association is
18 probably going to be -- this was directed at me -- at the
19 hearing today to oppose your appointment, and he didn't
20 sound like he thought it was going to be a big problem.
21 But I was astounded, you know, to hear that, because I
22 had had, in my view, no dealing with the National Rifle
23 Association. However, I did have, when I was chair,
24 going back to the Minnesota Constitutional Study
25 Commission, I was chair of a committee that had the 296
1 responsibility for reviewing two parts of the
2 constitution, the election law and the Bill of Rights
3 kind of section. And so my committee, we went around the
4 state and we had hearings,-arid most -- well, there were
5 active people seeking an equal rights amendment, the
6 women's groups, and the handicapped seeking disability
7 protection in the constitution, and also the Citizens
8 Concerned About Crime for crime control, I think, who had
9 a very detailed amendment that they wanted to add to beef
1 0 up protection for the right for ,guns . And the other
11 members of the, because we only had 15 members on this
12 commission, the little committees were small, and the
13 other two members voted for that and I didn't vote for
14 it, and that was my sin, that I hadn't voted for that
15 particular, very detailed one amendment proposed. But
16 anyway, they didn't show up. They decided, I guess, that
17 I wasn't important enough. They didn't show up to oppose
18 me and ~idn't introduce any, or didn't write against me
19 that I ever learned about.
20 But I heard that the Republican senator that was
21 going to be there was going to be Senator Hatch, and I
22 was really worried, because I thought he might think of
23 me as this very liberal person and, you know, everybody
24 knows you've got a lot of vulnerabilities, and I thought
25 maybe he was going to ask my views on abortion. We got 0 297
1 over to the hearing, though, and there was a Court of
2 Appeals nominee and, of course, they take them first, and
3 then there were other district judges and they went in, I
4 don't know what order, so we were about halfway through
5 the meeting, and it was chaired by Senator DeConcini from
6 Arizona, and he was the only one there. But about
7 halfway through, just before they were going to get to
8 me, Senator Hatch walked in the room and I thought, oh,
9 dear, and I was so nervous anyway. So I was called
10 forward and Senator DeConcini started talking, and
11 Senator Hatch interrupted and I thought, oh, oh. He was
12 obviously eager to give his statement. He said, 0 13 Mr. Chairman, I just want to commend the President on 14 this nomination of this wonderful woman who stayed home
15 with her children while they were young and then went to
16 law school and had the outstanding record and then, and
17 he went on and said all these wonderful things, and I
18 couldn't believe it. So he's always been, I've always
19 had a good spot for him in my heart and, of course, later
20 came to work with him quite a bit when I was Chair of the
21 Sentencing Commission. I reminded him about that and he
22 didn't remember, of course, there were so many judges
23 that go through there, but that was a nice surprise.
24 But anyway, I guess that maybe is enough of that
25 process, unless -- I think, though, that I maybe forgot. 298
1 I think I said that the Minnesota Women Lawyers had a, at
2 that time they were very active in supporting women for
3 judgeships, and they had their own selection process for
4 their endorsement, and there were a lot of women that had
5 applied and they ended up endorsing four, and all four of
6 us had applied. They had a wonderful, big party over in
7 the IDS Center for the four of us, a lot of lawyers came,
8 it was very nice. All of us did apply, and I'm not sure
9 that everybody got a, that all four got an interview with
10 the D~strict Court Selection Comission. I can't recall
11 that. The individuals who didn't get it were very
12 disappointed, they had all been in practice longer than
13 me. I think I told you that I would have, who knows what
14 would have happened, I might not ever have gone to law
15 school but for Roberta Levy, because I ran into her at
16 the pediatrician, we each were there with our kids, and I
17 told her I was thinking about possibly going to law
18 school and she said, well, have you taken the LSAT? And
19 I said, no, because I just thought you could go, I mean I
20 didn't realize you had to apply so long ago, and this was
21 January, and she said you have to take it next week or
22 you won't be able to do it. I maybe have told you that
23 already. And I had served with Sue Sedgwick over on the
24 district court, and I knew Delores Orey from when I was
25 president of the League of Women Voters. Delores Orey 0 299 f\ I I 1 had represented the League of Women Voters' position on
2 veterans' preference in a case challenging it without
3 charge, so I had ties with all these women, I admired
4 them very much and, of course, they were very
5 disappointed not to be on the final list, and obviously,
6 in the end, not to get the job. But there was the annual
7 meeting of the Minnesota Women Lawyers and the group was,
8 you know, they were good friends of some of these people
9 and they were sorry that they hadn't made it. I'll never
10 forget, Sue Sedgwick stood up on -- she was very
11 athletic, she had been a lifeguard -- she stood up on a
12 chair, and she said how important it was for everybody to 0 13 support Diana, and that was very touching. 14 Where do you want to go from here?
15 MS. BRABBIT: Let's take chronological.
16 JUDGE MURPHY: But I must say, I'll say
17 this, because we had a joint swearing in.
18 MS. BRABBIT: With Judge Renner?
19 JUDGE MURPHY: Yes, and he and I became
20 very good friends in this process, and Vice President
21 Mondale wanted to come and administer the oath, I think I
22 may have t6ld you that, and Judge Devitt said if he
23 comes, I'm not going to come. Judge Devitt was the Chief
24 Judge. I think back on how that could have been handled
25 so much better, because it would have been a big honor 300
1 for everybody if Vice President Mondale had come and
2 spoken. And his staff person, who knows, I mean that was
3 just handled poorly when I think about it now, but I
4 didn't know as much about protocol and different ways you
5 could do things. And maybe Judge Devitt would have
6 opposed his coming, but I doubt it, because he had Harold
7 Stassen speak, it was fine with him when Judge Magnuson
8 was sworn in and so on, so it might have been just that
9 oath thing. I don't know.
10 MS-. BRABBIT: Did Judge Devitt administer
11 the oath?
12 JUDGE MURPHY: Yes. But it was, 13 investitures are always a happy event, but it was (~) 14 especially, there were many women that came and
15 celebrated, and I felt that, you know, I owed them so
16 much because, you know, it takes agitation to get, for
17 people to recognize that there aren't women in places,
18 and it's sort of dried up these days in some other
19 places. And this is off the point but I wanted to say
20 this to you before, Lisa. You know, Margaret Chutich --
21 I just had a portrait for the District Court Commission
22 unveiled this week -- and one of the speakers, a former
23 law clerk of mine on the district court, was Margaret
24 Chutich, and she called up the president of the Minnesota
25 Women Lawyers and asked them if they wanted a statement 0 301
1 to be included in her talk, and they did have a very nice
2 statement. So anyway, it was a very happy day for the
3 Minnesota Women Lawyers in 1980. They came out in force.
4 MS. BRABBIT: Nice to hear.
5 JUDGE MURPHY: And Judge Renner and I had a
6 big party afterwards that we paid for ourselves, and they
7 all came. A lot of other people came, too.
8 MS. BRABBIT: Where was the investiture?
9 JUDGE MURPHY: It was in Judge Devitt's
10 courtroom, so not everybody could get in that courtroom.
11 It was an overflow crowd.
12 MS. BRABBIT: Could you select individuals 0 13 to speak on your behalf? 14 JUDGE MURPHY: I don't think so. The
15 administration had somebody speak, somebody from the ABA
16 Federal Selection Committee spoke, somebody on behalf of
17 the commission, I think it may have been a local person,
18 I can't even remember. Then Judge Renner and I each
19 spoke. But it was, in keeping with Judge Devitt's
20 policy, it was, you know, short and sweet.
21 MS. BRABBIT: Do you have those remarks
22 somewhere?
23 JUDGE MURPHY: They must have been
24 recorded. It could be that John French and Jim Rosenbaum
25 spoke, you know, from the nominating commission. That
~·I 302
1 might have been. Maybe Senator Durenberger was there.
2 You know, I just truly don't remember. But one other
3 thing I'll say. Senator DeConcini had a thing going on
4 with white collar crime, and as a state district judge I
5 had been very concerned about white collar crime because
6 in those days white collar criminals got off lightly and
7 the poor that were stealing food or whatever, they got
8 hammered many times. But he told us when we were there
9 that we wouldn't be able to, he wouldn't advance our
10 names ~ntil we £illed out this long questionnaire he had
11 on white collar crime. Shows the power of a senator just
12 being able to hold up for whatever whim. And so Senator 13 Durenberger invited us over to his office and we filled C) 14 out the forms right there, so we got them in that day,
15 which was very nice, and then we went to lunch in the
16 Senate dining room.
17 MS. BRABBIT: How nice. So take us from
18 your investiture. How did this transition take place?
19 JUDGE MURPHY: Well, Judge Renner had been
20 United States Attorney. He had been a state legislator
21 for years and then he was appointed U.S. Attorney. When
22 the Republicans lost, he was out of a job. He was
23 appointed by the district court to be a magistrate. They
24 weren't called magistrate judges in those days, and they
25 didn't have, there weren't many that were as influential 0 303
1 as they now are, but he was one of the ones that set the
2 pace. In fact, he even issued injunctions, which was
3 beyond his power, but they worked. Anyway, he had been a
4 magistrate and he had worked on a lot of cases, and he
5 got those cases then when they divided up the cases. And
6 in those days the judges could decide, they didn't have
7 any semblance of a blind selection of cases they were
8 going to give to the new judges, so it would not surprise
9 anybody that we got total, old dog cases. And also they
10 had thought that we were going to get through the process
11 earlier than we had because we had gotten nominated, and
12 they talked about having a hearing in September 1979, and 0 13 then later in the fall, but Congress recessed and so we 14 didn't get it until February 1980, but they put us on the
15 wheel a lot earlier. It's not uncommon. So we had, we
16 got about 500 cases, and some of them were many, many
17 years old, and I did feel it was a little unfair in the
18 sense that Judge Renner got cases that he had already
19 been working on as a magistrate. Not all of them would
20 he have been working on, but a lot of them he was
21 familiar with.
22 So, you know, you get there, and every now and
23 then you see a federal judge getting, you know, they want
24 to stop the building of an essential bridge or whatever
25 it is, big, big, urgent, decide-on-the-spot cases. So 304 () 1 you get the oath and you're waiting for that to happen
2 right away, but what happens really is nothing. So you
3 sit there, and you've got these 500 cases and you know
4 you've got to start bringing them down on your head. And
5 a lot of these old ones, the parties don't want to have
6 to deal with, they're old, they got old for a reason. So
7 you have to have, you know, people in for conferences and
8 start dealing with these cases and setting up pushing
9 them for either trials or motions that are going to be
10 able to decide ~tor maybe -you will be ab~e to ~ettle
11 some of them.
12 In those days, the criminal calendar was not as 13 pressing because it was before the drugs and the guns 0 14 were federalized. So coming from state court, where you
15 had cases like you do now in federal court where most of
16 the cases are similar, you know. I mean you have the
17 kidnappings, you have the murders, you have the assaults,
18 you have the thefts -- I'm talking about state court --
19 and each case has different facts and so on but they're
20 similar. You get over to federal court, in those days
21 the cases were people that had violated federal programs,
22 whether they were agricultural programs or some kind of
23 banking law. You did have bank robberies, that was a big
24 part of the calendar. But the majority of it were these
25 crimes that were crimes because of a violation of some 0 305
1 aspect of a federal program or, of course, the tax cases.
2 So it's really so different from what it is now.
3 So the main thing was bringing up these old
4 cases, and some of them were so big, there were so many
5 parties, a lot of antitrust cases. One lawyer would
6 always be saying, no matter when you set it for trial,
7 I'm going to be in Hawaii, or I'm going to whatever, and
8 you learned if you didn't stick with the day and you
9 picked a new day, then somebody else couldn't do it. It
10 teaches you to be, you know, you've got to be really
11 tough on this, coming from state court where you didn't
12 have this individual calendar. C) 13 And there were a lot of changes with federal 14 court. I had assumed, from my own practice in federal
15 court where I had seen very top-flight firms, really good
16 lawyers. I had thought that was the way it was going to
17 be, and in the criminal area it was very good lawyers,
18 but in the civil area, there were a lot of inexperienced
19 lawyers that were bringing a lot of these claims,
20 especially civil rights, constitutional law, employment
21 claims. You saw wonderful lawyers on motions, and
22 sometimes in trials when it's a, you know, for example, a
23 products liability case where it's an issue that is an
24 issue of first impression where they weren't able to
25 settle it because they didn't know how it would go. So I 306
1 was surprised by that. Because in Hennepin County
2 District Court, when I was there, there were really a lot
3 of good lawyers in the civil cases. In the criminal
4 cases there were good, some good lawyers. But the
5 problem for the state prosecutors was that they had so
6 many cases, and they would just a lot of times get the
7 file -- I think I may have already told you this -- when
8 they were walking into trial, and they didn't have case
9 agents so, you see, it's a lot different in federal
10 court.
11 MS. BRABBIT: Did you develop new mentors
12 in those positions that you looked to for things like 13 case management? 0 14 JUDGE MURPHY: Well, you know what I found
15 inspirational was the Federal Judicial Center then had a
16 one-week program in Washington twice a year for new
17 judges. I went to one for newly appointed judges. I
18 missed my son's high school graduation, I feel very
19 guilty about that, but it was the first one after we were
20 appointed. I felt it was important to go to it, and I
21 learned so much at it. We had some professors that
22 talked about evidence and so on, actually I think it was
23 Judge Pointer that talked about evidence. But it was
24 from these judges, there were some really outstanding
25 federal judges and they were an inspiration and had many 0 307
1 good pointers. And Hu Will in particular, he just was a
2 management judge, and I later became such a good friend
3 of Hugh Will because he and I were founding fathers of
4 the Federal Judges Association. He was a very
5 independent fellow, he had sued the United States a
6 number of times, and a brilliant man and very wise and a
7 courageous guy. At the end of the week, you know, he
8 told me, if you ever have a question just call me
9 anytime, and I never did. But I can tell you, that was
10 like money in the bank. And I just learned, I mean just
11 by thinking about Judge Will, I knew what to do. Judge
12 Becker, very notable judge, also spoke, but he said () 13 something that struck me as it couldn't be right. One of 14 the things he said was he really worked the lawyers hard
15 and you had to keep their noses to the grindstone to get
16 these cases resolved. That's true in one way or another,
17 I guess, but he would keep them there until 11:00 at
18 night during the motions and so on after the jury left.
19 I thought to myself, well, wait a minute, you're keeping
20 them there until 11 at night, but that means you're
21 there, too. Anyway, Judge Pointer, though, he was
22 another, I told you he gave the evidence one, but he was
23 somebody that from that day I respected him very much as
24 a district judge and got to know him very well over the
25 years, too. And there were some people in our class 308
1 that, there was a Judge Milt Shader, who is a very
2 distinguished judge. There were a few that talked all
3 the time from the back of the room, one of whom later was
4 impeached, but Milt Shader almost never said anything. I
5 thought he I said, you're going to be a wonderful
6 judge. And I was a little bit embarrassed about that
7 later because he had a very distinguished background, I
8 didn't know about it then. He argued before the Seventh
9 Circuit when he was in law school, and they had decided a
10 case cit~ng·~is Law Review note~ So that was very, very
11 helpful. And Judge Devitt and I became very good
12 friends, but I think I told you that my first meeting
13 with him was not that cordial. So when I said to
14 somebody that I had been so impressed with Hu Will, what
15 a model of a federal judge, they said, well, what about
16 Judge Devitt? And I hadn't meant any disrespect at all
17 to Judge Devitt, but I never heard Judge Devitt talk
18 about what he did, you know. He had the Ten
19 Commandments, which are good.
20 MS. BRABBIT: Judge Devitt did?
21 JUDGE MURPHY: Yes, Ten Commandments for a
22 new judge, and he gave it to us at our investiture.
23 They're wonderful for every judge, and the main thing is
24 patience, patience, patience, but they're wonderful.
25 MS. BRABBIT: In your role -- u 309
/~ I I 1 JUDGE MURPHY: He had the unique ability to
2 work with the lawyers. The role of the lawyers is really
3 to bring the judge up to speed, and it's the judge's job
4 to make sure that she gets what she needs from the
5 lawyers. And it may be up to you to get the motion
6 started or get the briefing on particular areas and so
7 on.
8 MS. BRABBIT: Some judges are known as
9 individuals who really push parties to get the cases
10 settled and resolved before trial, and other judges are
11 known as individuals who simply allow the parties to come
12 and try the case without any discussion about settlement. 0 13 Where do you think you were on that spectrum? 14 JUDGE MURPHY: Well, obviously a judge has
15 to be careful, in my view, not to interfere with the
16 lawyers and the parties. You know, the whole spectrum on
17 that has changed a lot. When I started, I may have
18 encouraged the parties to get together and to talk
19 settlement. I did not have a magistrate at that time who
20 was good at settling, or was really that interested in
21 doing it, although I did refer some things to him. Later
22 I did have two different magistrates that were just
23 wonderful at settling and so forth. Later I developed
24 into quite a good settler, but if somebody asked me to
25 try to work on a settlement, I would ask whether all the
~} 310
1 parties were agreed on that. And I would never, I never,
2 in any of the settlement discussions I had, I never
3 suggested what the settlement should be, but I would talk
4 to the parties about the process. I would listen to each
5 side and what their problem was with the other and I
6 would ask them questions. It turned out that I was quite
7 good in sensing -- a lot of times it wasn't the actual
8 merits that were preventing the case to be resolved, but
9 it was something that happened in the course of the
10 ii tiga ti·on that peopl-e were- offended- by. That was what
11 they were mad about, something was said at some point. I
12 remember one case where this employee just felt they had 13 been really, had not been appreciated, they had worked C) 14 for this place for so long, maybe it was an age
15 discrimination case. I don't really remember what the
16 case was. I suggested to the company that, when I
17 understood how personally unappreciated that this person
18 was, and it seemed to me that's what was driving the guy,
19 I suggested to the company, had you ever thought about
20 recognizing this individual, whether it's giving them a
21 plaque or a trip in reward for what they've done or
22 whatever, and that settled the case. You have to be very
23 careful though, because if you're the judge that's going
24 to be presiding over a trial, they obviously on the
25 record have to agree to let you do it. 0 311
1 Now there are all these people you can refer to
2 for mediation, and as I was there longer, I got much
3 more, you get more confident in your own ability to
4 figure out what is going to be a fair thing, and you
5 don't want to make people pay the price of special
6 masters, the parties, unless there's some funds there.
7 But I appointed masters in a number of cases where it was
8 the way to go. One of them was one of the first Indian
9 gambling cases. By getting this master who got an
10 accountant, they went out there and resolved everything
11 between the parties with very little cost to them. And
12 then, as I say, when I was able to, as you get more 0 13 senior, you get more power to pick, you have your pick of 14 the magistrates, and so Bernie Becker was, he was
15 terrific. You wouldn't have thought Bernie would be a
16 good settler, because Bernie was a law professor. He was
17 a brilliant man. Oh, I loved Bernie, he was just so
18 great, but he was excited about legal concepts, very much
19 a law settler. The next one that I had that was a
20 wonderful settler is Judge Lebedoff, and his was the
21 ability to set a value on your case, completely opposite,
22 and I knew that that approach could settle. But Bernie
23 was a great settler. It was interesting.
24 MS. BRABBIT: Your story, particularly your
25 story about the employment law matter, highlights a 312 0 1 number of concepts; understanding, empathy,
2 perspective-taking --
3 JUDGE MURPHY: Listening.
4 MS. BRABBIT: Listening.
5 JUDGE MURPHY: Hearing.
6 MS. BRABBIT: Hearing, which many scholars
7 who write on gender issues opine that women take a lead
8 in that area.
9 JUDGE MURPHY: I think it's true. But, you
10 seej that's --- look at my good friend, Judge Lebedoff.
11 His approach is arch male, because he also really can be
12 quite demanding. You know, this would never be my 13 approach, but it works. Now he's in mediation and there 0 14 are people who like that approach and he get results,
15 he's busy all the time. So it's a different way, but it
16 isn't the only way. I'm talking about my approach. But
17 it was interesting to me because I didn't know whether I
18 would be any good at settling, because I thought of
19 settling as more the successful settlers as being really
20 pushy and, you know, your case is worth five cents. It
21 was hard for me to know what the real value of the case
22 was because I get caught up in the legal issues, you see,
23 and it's not clear that it's going to come out this way
24 or that.
25 MS. BRABBIT: Can you speak a little bit 0 313
1 about civility at those times in professional history?
2 Because I think the other thing the scholars write about
3 is the sort of decline in civility, and you had up-close
4 interaction with so many attorneys and judges in very
5 emotional matters and had that front-row seat, and this
6 is something you've observed over, you know, many years.
7 JUDGE MURPHY: You mean, do I see a
8 decline?
9 MS. BRABBIT: Right.
10 JUDGE MURPHY: No. Not in my dealings.
11 There have always been, I mean in the early days in the
12 district court was the height of the Posse Comitatus. I 0 13 mean those people filed, you know, demanding not to have 14 a women judge. Judge Rosenbaum always got filed against,
15 too, because they didn't want a Jew. But the scurrilous
16 things that they would throw out about every judge, and
17 threatening things about being kidnapped and -- I mean,
18 you know, there's nothing like that today that's going on
19 on a regular basis. But I had, you know, Mr. Bellrichard
20 sent me over 200 threatening letters with all kinds of
21 sexual things in them, threats, too, and showing big
22 explosions and fires which could happen to my house. He
23 was charged with firebombing two judges', state judges'
24 houses, and that's a case that I had for him in the first
25 place. That's hardly civility. 314
1 MS. BRABBIT: When did this start?
2 JUDGE MURPHY: When did I have that case?
3 MS. BRABBIT: Yes.
4 JUDGE MURPHY: I don't know. I was there
5 for 15 years. Later, you know. But the point is that
6 some lawyers can act rather jerky and -- but it was, you
7 know, when I first was in the state court they could be
8 very rude about your being a woman in various ways but,
9 of course, in Minnesota there came to be more women. But
10 here I'm the only woman that's ever been on the Eighth
11 Circuit, but you're so much more removed when you're on
12 the Court of Appeals. 13 MS. BRABBIT: Tell us about your -- 0 14 JUDGE MURPHY: I still get called "sir"
15 sometimes.
16 MS. BRABBIT: Tell us about your experience
17 in 1980 through the lens of being the first woman in that
18 position.
19 JUDGE MURPHY: Well, I think I talked about
20 the Jaycees case to you before perhaps, but maybe I
21 didn't talk about it in quite the same way, because that
22 was one of the old cases I got, and that case had been on
23 the docket for some time. They had not tried to certify
24 the case in Minnesota Supreme Court until they got me.
25 They came in, both sides had agreed, for different 0 315
1 reasons, but I think the Jaycees didn't want to have a
2 woman, I'm sure that was what prompted it, and then
3 asking me to certify the question of whether the Jaycees
4 were a public accommodation under Minnesota law to the
5 Minnesota Supreme Court. Now I think the State thought
6 that's okay because it will never be authoritatively
7 decided otherwise, that issue, and I thought the same,
8 because it was only the State that could authoritatively
9 say, and the Jaycees were sure that it was not going to
10 be. And, you know, you could imagine that they could
11 have felt quite confident about that. Justice Otis wrote
12 the opinion finding they were a public accommodation but, 0 13 you know, it was breaking ground, shall we say, with new 14 law. And so then it came back, and then the issue was
15 whether this application of the state public
16 accommodations law was unconstitutional as applied to the
17 Jaycees because of their First Amendment right to select
18 the members that they wanted, and that's the way it was
19 pretty much argued to me. And, you know, I said that the
20 State's interest in applying this public accommodations
21 law really outweighed. The Jaycees put in a little bit
22 of evidence, there was a little court trial, but they
23 didn't advance, other than this sort of freedom of
24 association idea in particular. I ruled in favor of the
25 State, which had applied the law in the first place. And 316 0 1 then when it got to the Court of Appeals, Judge Arnold,
2 Richard Arnold, a very scholarly judge, I hardly
3 recognized the case when it came out, but basically also
4 was this freedom of association kind of idea about men
5 should be able to have some peace, he didn't say that,
6 but from women, you know. The Jaycees got more into what
7 they wanted, to be able to express their own views and so
8 on, but it wasn't tied to a particular message. They got
9 more refined by the time it got to the Supreme Court,
10 which, of cours€, alway& happens on every level. At any
11 rate, I got reversed two to one, Judge Lay wrote a very
12 good dissent. 13 I was out of town the day that the mandate came 0 14 down, and the Jaycees were over there right away to get
15 the injunction removed, and I was out of town. So then
16 they went to the Court of Appeals for a mandamus action
17 and, I mean this was so outrageous, because naturally I
18 would enforce the mandate of the Court of Appeals. I
19 mean there's no doubt and, you know, it wasn't like
20 what difference did a couple days make? It was only a
21 matter of a couple days. I was in Europe with my family,
22 as I recall, and I couldn't believe it when I got back
23 there and I saw this. And the order that the Eighth
24 Circuit issued, it was not a very polite order. It read
25 just like they thought I was deliberately not willing to 0 317
1 enforce their mandate. So that would, that whole way it
2 played out, I don't think it would play out comparably
3 today.
4 But anyway, I wasn't able to go to the oral
5 argument in the Supreme Court because I had been asked to
6 speak at the Minnesota Law Review, be the annual speaker.
7 It was very difficult, but I had made that commitment and
8 so I didn't go to the Supreme Court. But I knew Lynn
9 Schafran, and she was going to go there, and I asked her
10 to take notes, and I think I got her a seat, as I recall.
11 But anyway, she took notes, and very detailed notes, and
12 she called me up and told me. She knew how to take notes 0 13 because she had all the questions and answers and so 14 forth, and I heard that and I thought this is good, it's
15 going to come out the right way. Then the next night, I
16 think, was the annual Law Day dinner, you know, for the
17 Legal Aid, and I went, and I saw Clay Moore, who I had
18 always been friendly with, the lawyer for the Jaycees,
19 and he came up to me and he was triumphant. He said,
20 we're going to win, and he thought it had gone so well.
21 I said, well, gee, it didn't, you know, I talked to
22 somebody that was there and heard the argument, it didn't
23 sound that way to me, but we'll see.
24 MS. BRABBIT: How long did you have to
25 wait? 318 0 1 JUDGE MURPHY: Not as long as sometimes
2 because, see, that was in the spring of the year, it must
3 have been, because otherwise it wouldn't have been the
4 Law Day thing. Yeah, it was April, I think. It must
5 have been April, I think, because the Law Review dinner
6 is usually in April. So it would have had to come out by
7 June.
8 MS. BRABBIT: Well, congratulations. A big
9 impact.
10 JUDGE MURPHY: Yes, that case did turn out
11 to have a lot more impact than just whether these women
12 in St. Paul could get into the St. Paul Jaycees, because 13 all these other organizations just gave up. It's amazing 0 14 how one case that isn't controlling legally can have that
15 impact.
16 MS. BRABBIT: And for years to come.
17 JUDGE MURPHY: Yes, and even the people who
18 are against using admissions policies that favor
19 admission of disadvantaged and so on, I never hear them
20 complain about women being able to be in these things
21 that are related to really the business world.
22 MS. BRABBIT: Was this your first major
23 case that touched on a gender issue?
24 JUDGE MURPHY: Well, you know, there were
25 so many cases at that time about employment. There 0 319
1 weren't many sexual harassment cases, but they were
2 beginning to come. But in terms of impact, it was a big
3 one. You know, one that I had pretty early on, too, was
4 the DeGidio case, and I just saw it, it just came up
5 cited in a case the other day about somebody claiming
6 that they got TB in the Ramsey County jail and that they
7 were suing on that. Because that was the case with the
8 severe TB outbreak in the Minnesota state prisons, and
9 that was a very interesting trial. I was thinking about
10 impact, you know. That had a huge impact, because after
11 my decision came out, well, a lot of things happened, but
12 one thing that happened was that they instituted 0 13 protective things, because there's so many people that go 14 in with TB. The combination of that and people who are
15 HIV is really a problem, and at that time they didn't
16 protect the air filters, and we don't really need to go
17 into it. I got off the subject of the women. But you
18 like the cases that have more impact than just one.
19 MS. BRABBIT: Were there other --
20 JUDGE MURPHY: I definitely made a
21 difference, though, on sexual harassment on the Court of
22 Appeals in my view in this way. Male judge5 might not
23 always understand what the woman is experiencing, and so
24 you have to sort of put the facts together in a way to
25 make that clear. I mean I'm not talking about unfairly, 320
1 but there are just fact situations that a woman
2 recognizes right away as a very uncomfortable situation,
3 you aren't able to do your work or whatever, because
4 we've had the same kind of experience, and it might be
5 overlooked by men.
6 Well, it doesn't have to be women. You know,
7 this Title VII case I had early on in the Court of
8 Appeals, Quick v. Donaldson, it was an issue at that time
9 that the Supreme Court hadn't addressed. The issue was
10 on account 0£ sex, would it apply to same-sex harassment?
11 This was a case where -- maybe I've talked to you about
12 this. It was a company in which there was a guy who was
13 apparently of slighter build and stuff. Apparently in
14 that company, the workers bagged each other all the time,
15 this was their idea of fun, that's grabbing you by the
16 testicles, each other by the testicles. Can you imagine
17 what this place would have been, how it would have
18 affected the workplace? But, anyway, they really were
19 after this guy all the time, and they made a lot of
20 slights all the time. It said in his brief that he
21 wasn't gay but they thought he was. It didn't matter
22 from the legal point of view. They really were after
23 him, and his testicles were injured. So the question
24 was, the defense was, well, this doesn't apply because
25 this is same sex. And that was a, as I say, an issue of 0 321
1 first impression really. And other judges, it's so
2 tempting to want to name them, but they didn't think
3 there was anything wrong with that. And one of them
4 said, well, you know, I worked on a loading dock when I
5 was a teenager, you know, and the other guy said, well, I
6 was in the Army, you know. And, see, that's sort of the
7 reverse of what I was -- why I thought of it. Right now
8 a woman knows how you can't do your job when you're being
9 harassed and what might be presumed as harassing, but
10 they didn't really see that this was something that he
11 shouldn't have to put up with. And for some unknown
12 reason, even though I was the only one that thought he 0 13 should recover, or not have summary judgment against him, 14 I can't remember which that was, I got the case assigned
15 to me, and I did the best job I could. I mean you're not
16 too confident that you're going to get any support when
17 you're the only one of that view at conference. And I
18 wrote it, and the one judge, the assigning judge
19 concurred, not enthusiastically. The other one wrote a
20 dissent. And then when there was a petition for
21 rehearing, the one that had joined my opinion was the
22 first one to vote for the petition for rehearing. But it
23 didn't, it wasn't reheard. I didn't have to go and argue
24 it in front of whole court. Then, of course, later the
25 Supreme Court ruled on that issue, not in this case, but 322
1 ruled the same way, and the judge that dissented, who is
2 a very good friend of mine then, and now, too, and he
3 said, you know, you were right in that case. And I had a
4 gay clerk last term that, he knew about that case, and he
5 thought that was a very important case, and it did have a
6 lot of influence. Sometimes you get a case that's really
7 fascinating and it doesn't only decide its own thing, but
8 I'm way off the track.
9 MS. BRABBIT: No, this is very, very
10 interesting, and it- also helps to define so many of the
11 wonderful ways that you shaped the landscape for the
12 legal profession and for the administration of justice.
13 These are just two of those ways, and there are so many,
14 so it's nice to have concrete examples of the way in
15 which that has happened. And even at this stage, you
16 know, and to be in 2006, and still feel and understand
17 and appreciate the impact of those decisions is
18 phenomenal and remarkable. So I know for many, we will
19 all appreciate these kinds of stories and your being able
20 to tell them.
21 Let me ask you a couple other questions related
22 to gender, because I know many will be curious. In
23 addition to being curious about the decisions that came
24 before you that had long-term impact, they're going to be
25 curious about what was it like to be the first woman in 0 323
1 terms of people filing against you, and do you feel
2 like --
3 JUDGE MURPHY: You mentioned was I filed
4 against and, no, either in state court or federal court?
5 I thought maybe that would be the case, but it wasn't. I
6 mean there was the Posse Comitatus, they didn't want a
7 woman, you know, like they didn't want a black, or they
8 didn't want a they had a constitutional right to have
9 a white male, so I don't count them. I thought maybe
10 there would be more of that, but I think lawyers are
11 worried about the consequences of doing that, even though
12 they might not desire a particular judge. And, in fact, 0 13 in state court, where I think I may have told you about 14 that, where at that time you could pick the judges before
15 whom you would bring motions. The special term people
16 had the motions for, it was a master calendar, it wasn't
17 individual calendars. And so some judges had huge
18 calendars and others had none when it was their day, and
19 I got many, many. And when they could pick who they
20 would have for, to plead guilty in front of when you had
21 a particular calendar, I always got a lot of those and so
22 on. So I would say that I have no complaints about that.
23 Judge Lebedoff told the story the other day,
24 though, when I went on the district court -- he had been
25 on the district court for some time before -- and my 324
1 family and I went on a vacation, and while I was gone
2 Judge Douglas Amdahl, who later became Chief Justice of
3 the Minnesota Supreme Court, was a judge who got a
4 tremendous number. This was just after I went on the
5 state district court, he had a tremendous number of, they
6 all saved up their motions for when he was on special
7 term. And he had a case of some kind that was going to
8 trial and he wanted to get a judge to trade special term
9 days with him and he couldn't get anybody to do it,
10 nobody wanted to get his because-it was -so big. And
11 Judge Lebedoff, he volunteered me. He said, well, you
12 know, Judge Murphy's not that busy yet because she's just
13 started, and I'm sure she wouldn't mind doing it. And he
14 told me the other day he thought that would be good for
15 me because Judge Amdahl would appreciate it. Well, I
16 came back and he told me that he had volunteered me for
17 that special term, and my heart just sank because, you
18 know, you're just starting in the job and so on, but I
19 did it.
20 MS. BRABBIT: Did you feel like you had to,
21 quote, prove yourself because you were the first woman?
22 JUDGE MURPHY: Well, this was, I'm in state
23 court, I'm not the first women, I'm the third woman.
24 Actually the second woman on the district court. Sue
25 Sedgwick was the first one. 0 325
1 MS. BRABBIT: That's right, that's right.
2 JUDGE MURPHY: I was the second woman on
3 the district court. But I still felt you had to prove
4 yourself, and also I felt that way because I was not out
5 of law school that long.
6 MS. BRABBIT: You had both factors.
7 JUDGE MURPHY: Yeah. And I think I already
8 told you, I was blissfully unaware of the fact that your
9 reputation gets made immediately practically. Anyway, my
10 gender did not prevent me from getting a good reputation.
11 MS. BRABBIT: Were there gender
12 challenges -- 0 13 JUDGE MURPHY: It's not that there wouldn't 14 be some critics, I don't mean that.
15 MS. BRABBIT: Were there gender challenges
16 that you experienced that you didn't expect?
17 JUDGE MURPHY: Well, I think I told you I
18 didn't expect lawyers sitting across the desk in chambers
19 eyeing my breasts in a leering way, for example. You
20 know, just because of the rule kind of situation. I
21 didn't expect that some of the lawyers and the judges
22 would think that since I was a woman I should be doing
23 family court or -- I'm trying to think of the names they
24 were using for these various things but, anyway, women
25 and children, so to speak. I didn't really expect that, 326 0 1 because I came from a law firm that did corporate work,
2 did all kinds of work. You know, it wasn't that I came
3 from doing cases of that sort. And I mean it's not
4 surprising that people reacted that way because that is a
5 big stereotype for women, but that surprised me. I had
6 been an editor of the Law Review, you know, I didn't
7 expect that so much.
8 You know, the socialization was very difficult
9 because -- and it still is. You know, there's no other
10 woman on my court, there wasn't when I was in the federal
11 district court, and there was a lot of, you know, at
12 conferences the couples would be going out together and 13 some of the wives openly didn't want me to come. It 0 14 would have been different if I had had a husband that
15 wanted to be there -- because it sort of ruined the
16 little setup for the social thing, or maybe they thought
17 of me as a threat, I don't know. I was younger then, you
18 know. I told you about the first time I went to the
19 Eighth Circuit Conference and the chief judge, who wrote
20 the dissent in the Jaycees case, but nonetheless, left to
21 his own devices, went back to, you know. Now you bring
22 your wives and it was all set up, dancing, there was
23 always dancing at these meetings, and I ended up eating
24 in my hotel room all by myself at many, many conferences.
25 You know, it's still, they're all going out to the ball 0 327
1 game or they're all going out to play golf. I mean I
2 love baseball, but it's just, or they all went up to this
3 hockey thing. It isn't that I couldn't go, but the
4 atmosphere is like boy's night out. And, you know, I've
5 taken the social lead many times, not recently, and I
6 really should start it again because the court has
7 changed in personnel so much, in getting people together
8 for dinner and everything. They like it, too, they
9 appreciate it. It takes somebody that gets it going. I
10 really would like to some day have at least one other
11 woman on the court. I think it would be great.
12 MS. BRABBIT: We all hope that some day, 0 13 sooner rather than later. 14 JUDGE MURPHY: Yes.
15 (End of session.)
16
17
18
19
20
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/ ' ..;-:,.-/ 328
1 (December 20, 2006.)
2 MS. BRABBIT: Today's date is
3 December 20th, 2006, and this is the ninth taping of the
4 oral history of Judge Diana Murphy.
5 JUDGE MURPHY: I had mentioned about how
6 when I was first a judge I experienced motions for me to
7 recuse myself based on the fact that a woman would react
8 in a certain way to a case; in other words, be
9 sympathetic with the woman in the family law situation or
10 in an employment -case or whatever .. And hearing behind my
11 back, I can remember the lawyer, I still see that lawyer
12 in practice, he's a good lawyer, but telling one of the 13 other judges, you 'know. I had a products liability case () 14 and he said, I just think it's terrible for Judge Murphy
15 to have that case because a woman can't understand, you
16 know, how this product operates.
17 It's really pretty amazing when you could look
18 around you and see that you certainly had more than the
19 average ability to understand what these were, looking
20 around at the bench, you know, but anyway, there were a
21 lot of things. The story that I was telling you was
22 something that occurred much later because, you know, I
23 was first a judge in '76, but this is from '94 on.
24 The Court of Appeals in the Eighth Circuit has
25 photographs of the judges taken, a new photograph every 0 329
1 time a new judge comes on, or every time there's a new
2 chief judge, and that has changed quite a bit because of
3 an agreement among a number of judges that each would
4 serve for just a year so that the other ones would have a
5 chance to serve. So we've had quite a few chief judges,
6 and there have been nine or ten, I would say,
7 appointments after me, so this happens quite a bit. And
8 every time the photographer -- the same photographers are
9 taking the photographs -- and every time we've had the
10 picture taken they have given the directions to the group
11 by saying not "Judges," but "Gentlemen, I want you to
12 stand, we' re going to take five shots," "Gentlemen, I 0 13 want you to smile," "Gentlemen, stand, would you move 14 over there and to the left," and so forth. It's a
15 strange feeling when you're sitting there, or standing,
16 depending on the lineup, and you obviously stick out like
17 a sore thumb because you're the only woman. It would be
18 so easy to do this in a gender neutral way by saying
19 "judges," but this deliberate continuation, even when
20 there have been protests by myself, or occasionally by
21 someone else, although never by another judge, with the
22 one exception of when Judge Hansen was the chief judge
23 for that one year. He let the photographers know that
24 they would not be asked back if they used that
25 "gentlemen" form of address, and why that was wrong when, 330 (~) 1 you know, one of the judges didn't fit in that category.
2 But I also told you that we're going to have another
3 photograph taken a week from Tuesday, and I predict it
4 will be "gentlemen" again, and it's really very
5 demeaning. It doesn't put you in a good mood, doesn't
6 make you feel like smiling because it's like you don't
7 really fit in that group. And as I say, the other judges
8 don't really notice it, or the staff, other than Chief
9 Judge Hansen.
10 MS. BRABBIT: You mentioned a moment ago
11 that as you started thinking about some of these issues,
12 the memories, I think your words were, sort of crowd each 13 other in terms of your experience. Are there others that C) 14 you would like to share that you think about when you
15 start telling some of these stories?
16 JUDGE MURPHY: Early on I think I may have
17 already told you, Lisa, I thought I should, because such
18 incredible things happened, at the time I thought maybe I
19 should take notes so we have a record of it. But I
20 thought then that and I think I was right -- that it
21 would be a mistake because you would be dwelling on it.
22 You had to put it out of your mind and your emotions in
23 order to go on and make a success. I always felt because
24 I was a first in a number of ways that the opportunity
25 for other women to have jobs like this was in some way 0 331
1 dependent upon my doing a good job and showing that I
2 could do this as well as any of the others, and so I've
3 always worked awfully hard. And if you dwelt on other
4 people leering at you, other judges, or propositioning
5 you, if you dwelt on that, or even acted like you
6 understood what they meant, it would be bad. So, you
7 know, I would have to, I mean maybe if you told me that
8 on X day we had to, you know, discuss all these
9 unpleasant, demeaning, unequal experiences, maybe I
10 could, you know, really focus my mind on it, but it's not
11 healthy. But they're there.
12 MS. BRABBIT: And you did that excellent 0 13 job from '80 to '94 and on, but in 14 JUDGE MURPHY: Did I tell you about the
15 product liability case? Or maybe that wasn't when we
16 were talking on the record. I don't think it was.
17 MS. BRABBIT: Why don't you talk a little
18 bit about that, in the event I didn't have the recorder
19 going.
20 JUDGE MURPHY: I think I talked to you
21 before about the other judges coming and trying to force
22 me to go into family court. I think I talked to you
23 about that. Or lawyers coming and apologizing when the
24 other lawyer at the bar association meeting said that it
25 was terrible that there were women on the bench -- and at 332
1 an official bar function, it was very nice. And then two
2 lawyers came to see me and said, we apologize, which
3 obviously I was very touched. But then they said, you
4 know, it's important to have women to handle family and
5 juvenile matters. And, of course, I was a judge in
6 general jurisdiction so that didn't really apply. But I
7 was just now thinking about the concept that people
8 couldn't sit on certain kinds of cases because they would
9 be biased one way or the other, or that women couldn't
10 comprehend certain things. The trial iawyer that still
11 practices, I still see him, said to one of the other
12 judges when I was starting out that it wasn't right that 13 Judge Murphy had gotten the assignment of this product () 14 liabilities case because women just wouldn't be able to
15 understand how this product worked.
16 MS. BRABBIT: And when did you find out
17 about that? Sometime after?
18 JUDGE MURPHY: No, at the time.
19 MS. BRABBIT: At the time?
20 JUDGE MURPHY·: Um-hum. Which in a way is
21 sort of paralyzing if you know that people are saying
22 these kinds of things behind your back; but on the other
23 hand, you knew that some had their swords out. A lot of
24 this is true with every judge, especially when they
25 start, that lawyers are all looking to see what this 0 333
1 judge is going to be like, and they make judgments. But
2 certainly some of this, I mean that was definitely that a
3 woman shouldn't have that kind of case.
4 MS. BRABBIT: Um-hum. Did you ever have
5 anybody, not counsel per se, but anybody internally
6 administratively talk about whether or not, you know, a
7 woman would be fit for the job?
8 JUDGE MURPHY: You know, I think I told you
9 about not getting a chambers when I first started in
10 state court. That would never have happened to a man
11 judge, or just not getting the support from the clerk's
12 office that other judges would. I think I mentioned
13 probably that a certain, a particular calendar, I think
14 it was this unlawful detainer calendar, it could have
15 been the traffic calendar, I don't know, because in both
16 those courts you had to not only have the arraignments
17 but also do trials, and you didn't know ahead of time
18 which ones were going to go to trial. There wasn't
19 enough time allocated, they had too many on the calendar.
20 The way the clerk handled my suggestion was to come with
21 an assistant into court and clock how long it took me to
22 handle each item on the agenda. And so, you know, that
23 was an unpleasant, you know, I don't even like thinking
24 about these things because it can make you mad all over
25 again. 334 0 1 MS. BRABBIT: Let's turn to a happier topic
2 from '80 to '94, and at some point in time --
3 JUDGE MURPHY: This is '76 we're talking
4 about some of this, you know.
5 MS. BRABBIT: Oh, sure, the chambers and --
6 JUDGE MURPHY: Yeah.
7 MS. BRABBIT: Yeah.
8 JUDGE MURPHY: And that experience I just
9 talked about.
10 MS. BRABBI~: ¥eah. But a big moment for
11 you between '80 to '94 is when you become chief. Tell us
12 about this process. How does this come about? 13 JUDGE MURPHY: Well, Judge Alsop planned to 0 14 take senior status at a certain date, and the next-most
15 senior person was, because there's a statute which
16 governs who is chief judge in federal court, and Judge
17 MacLaughlin was the next most senior judge, and very
18 close to Judge Alsop. So he became chief judge in the, I
19 can't remember right now, I think it was in the, some
20 point in '94. And there is a session where the current
21 chief judge goes to a session with the one who is going
22 to be next in line and you both go, and it's a training
23 ground for the next chief judge and so on. And Judge
24 MacLaughlin went to that and then unexpectedly he
25 resigned after being chief judge just for a couple of 0 335
1 months, and he really didn't give a reason. So I became
2 chief judge very unexpectedly, and unexpected from
3 everyone's point of view, so I hadn't had the benefit of
4 the training or anything. It didn't really matter. I
5 mean it's always nice to have the training, because when
6 you go off to Washington -- I later did go for the two
7 days -- you find out about all of the different
8 departments of the Administrative Office, many of which I
9 knew about because of my activities, but still you learn
10 interesting things in that.
11 I'm not sure if we talked about this chief judge
12 business before, but there were two main issues at the 0 13 beginning. One was security, because at that time there 14 was no kind of security in the District of Minnesota, no
15 magnetometers. Anybody could walk in with a gun and
16 nobody would know the difference until something bad
17 happened. And the bench was divided equally basically,
18 fiercely, on this subject because some of the judges
19 really wanted to have security because there were
20 instances that we're all familiar with in other courts,
21 and then some were opposed because they said they were
22 Populists and the courthouse belonged to the people and
23 they should not feel unwelcome. And I sided with the
24 group that thought we needed security and, of course,
25 then from the outside some people thought that's because, 336 0 1 wouldn't you know, a woman would be afraid. I was not
2 the proponent of it but I had to take one position or
3 another. I thought it was not in the people's interests
4 not to have security because they could be at risk, too,
5 if somebody is coming in with weapons and so forth. But
6 anyway, that all died down, but it was very, very
7 divisive at the beginning.
8 The other was related to a fight about chambers.
9 If you ask anybody that's been chief judge, you know
10 parking is always a big one, peopls f~ghting.about the
11 parking places, or when judges are fighting over
12 chambers, and I had one judge that was impatient. The 13 person that had become senior was going to move out of 0 14 his office, his chambers, but he wanted some time to get
15 his things ready, and this other person, who obviously we
16 won't name, wanted to move immediately because he didn't
17 want to get his other place decorated, he wanted to do it
18 right in the place that he would be permanently. Trying
19 to hold him back a little to give the other judge time to
20 accommodate to changing his status, that was a difficult
21 one.
22 And the court hadn't had a lot of organized
23 planning, planning ahead, and I tried to get better
24 minutes and some kind of long-range planning. I remember
25 I got funding from the Federal Judicial Center to have a 0 337
1 planning session, and the people that were the most, we
2 invited the bankruptcy court, the magistrate judges, the
3 clerks and, of course, the district judges. The
4 bankruptcy judges and the magistrate judges all liked it,
5 but some of the district judges thought this is
6 ridiculous, why do we have to think about having a
7 mission statement; it's clear, we just go do a case and,
8 you know. And the Federal Judicial Center people were
9 really surprised that anybody could be so not with, you
10 know, not willing to participate.
11 There was one good thing, though, because at
12 that retreat, some of them came just against their will, 0 13 and at that retreat one of the judges brought a bottle of 14 Scotch. So after hours one evening we got together and
15 had some drinks, and over that discussed some problems
16 that did exist that we were able to resolve. Even though
17 it wasn't, they didn't want to participate in what they
18 thought was Mickey Mouse, it did get a good result. But
19 then the next, you know, there always are controversies
20 in any body.
21 And then we had the building of the new
22 courthouse. Before I became chief judge the bench had
23 decided to give me the responsibility of trying to get
24 the courthouse built, and in the first place it was
25 trying to get along with GSA, which said that we would 338 () 1 never get a new courthouse unless somebody would give us
2 the land. And I think I may have talked to you about how
3 I went to see the Mayor of Minneapolis, and eventually
4 they did give us the land and also some funding. In
5 return, of course, we had them involved with, they wanted
6 certain things as part of the project, a soft green plaza
7 and then public parking. Both turned out to be somewhat
8 difficult to resolve with everyone's agreement in the
9 end. But, anyway, I can't remember exactly at what point
10 in the process of gettLng. the courthouse built that I
11 became the chief judge, but the circuit executive hired
12 an architect to be the circuit architect, there hadn't 13 been one before, and she brought him over to see me and 0 14 he turned out to be invaluable. And GSA then put a women
15 in charge of the product for GSA.
16 MS. BRABBIT: For those of us who don't
17 know, Judge, tell us, the GSA?
18 JUDGE MURPHY: General Services
19 Administration in charge of all federal buildings. And a
20 huge bureaucracy, and a reputation of being very
21 difficult to work with, and our experience had been like
22 that. But anyway, the project manager and I got along
23 very well, and the circuit architect turned out to be a
24 great ally. There was a five-person selection committee
25 for choosing the people who would do the project, because 339
1 it turned out to be a design/build project. I was the
2 judge that was on that five-person committee, and the
3 other people were all higher-ups at the GSA. And, of
4 course, there was a certain amount of appropriation that
5 our congressman had gotten for us, Congressman Sabo, and
6 you had to do a project within that, and you had to try
7 to tie this project in with this plaza and tie it into
8 the neighboring buildings. Because this Flour Exchange
9 Building that was historically protected, they wouldn't
10 sell to the government to be able to join the project.
11 Later they regretted it. Anyway, so you had this other
12 little, narrow building that's on this block, and trying 0 13 to get a courthouse that could unite all of this, that 14 building, the plaza, r~ach out to the city hall across
15 the street, and also pay deference to the Grain Exchange,
16 which is another building across the street. It was one
17 of the projects the architect saw that, a need to do that
18 and tie it together, and also had a design that used the
19 site very well in an efficient way as far as the
20 courtrooms and the chambers and the support offices. But
21 there were some other of the proposals that had more
22 traditional elements to them that were appealing to many
23 judges that are traditionalists at heart. So trying to
24 get the court to pull together about the winning project
25 and to then, because of the design/build project there 340
1 are changes made along in the course, and eventually it 0
2 worked out very well.
3 Like you're sitting in my chambers right now.
4 The original design of the building had these windows all
5 along the north wall of the chambers but it didn't have
6 this large window that's in my chambers that happens to
7 be on the east, that very tall, large window. It was a
8 panel, that whole wall. And there was an uprising at one
9 point and the judges really wanted to have windows on the
10 other side and the architect was able. to work it in, and
11 I think it's very nice, it worked very well. In order to
12 do that, he changed the back of the building a little 13 bit, so it has a I don't know if you've ever looked at 0 14 that, but anyway it all worked out very well, and there
15 are some other examples of that. So eventually we all
16 worked together, but that was a big challenge to get them
17 working together and getting a project that everybody now
18 is very pleased with.
19 You may think of a chief judge as a big deal,
20 but actually the chief judge doesn't have any power
21 really at all. You're the contact person, you make of it
22 what you can. I mean the probat~on office, for example,
23 would come to you when they had a personnel problem, if
24 the marshals had a problem they would come to you, if the
25 bankruptcy court had some kind of problem. But you 0 341
1 didn't have, you had to make it what you will, and you
2 had to try to bring the other judges along in things they
3 were involved in.
4 One thing that you did have clearly was the
5 ability to preside at events and at court meetings and so
6 on and set the agenda. But, you know, I've got very fond
7 memories, for example, of presiding at the swearing-in
8 ceremony of Judge Michael Davis, for example, and others
9 that I could go into, so that's maybe what you think of
10 as chief judge. It isn't that exciting to be chief
11 judge. Being chief judge is a big challenge and it was
12 really interesting, but it isn't maybe what you think. 0 13 MS. BRABBIT: Describe the shift in terms 14 of how you were spending your time. What I hear you
15 saying is that much of your energies went into
16 administrative details, or --
17 JUDGE MURPHY: Or planning.
18 MS. BRABBIT: -- planning.
19 JUDGE MURPHY: And the courthouse, of
20 course, was a huge project. I never got any relief on my
21 caseload for that project, and I had to travel to
22 Washington and I had to travel to Chicago on a regular
23 basis, but it was one of the most interesting things I
24 had done in my life. I loved it. I think I recall the
25 chief judge got a little bit less of a calendar of the 342
1 incoming cases, but you had more, you supervised the
2 grand jury, so all of the motions that came in regard to
3 the grand jury came to you.
4 MS. BRABBIT: How long did you hold the
5 chief judge position?
6 JUDGE MURPHY: Two years, beca~se then I
7 went on the Court of Appeals.
8 MS. BRABBIT: In '94?
9 JUDGE MURPHY: Yes, but you could see they
10 were event-f·illed years.
11 MS. BRABBIT: Absolutely. And looking back
12 as chief judge, how would you describe your legacy as a
13 chief judge?
14 JUDGE MURPHY: Well, you know, I mean this
15 building is a legacy, but it's really because I had been
16 assigned the job, but it was easier when I was the chief
17 judge, too, because actually I had permission from
18 Washington to travel whenever I needed, but certainly you
19 have a certain level of prestige that you don't have
20 otherwise. I see my legacy as, well, you could look at
21 the building, you could look at the security we've got,
22 which didn't exist before. I think I did try to get more
23 organized procedures, I think there's some result to
24 that. It's really always better for somebody that
25 follows to say what it was. My goal was to try to get 0 343
1 consensus among the judges on all the things that came
2 up, and one way or the other I think that was achieved.
3 I think the person that followed me was pretty much a
4 similar consensus person.
5 MS. BRABBIT: Did you enjoy that role as
6 chief judge?
7 JUDGE MURPHY: Yes, yes. Well, you know,
8 I've been in the chair position in a lot of different
9 organizations, and it's really interesting. There are
10 various problems that arise and you've got to use
-"'·11 whatever resources and try to bring people together to
12 deal with the problems. It fascinates me.
13 MS. BRABBIT: You've always been known for
14 your consensus-building skills and your vision. Is this
15 something you were intentional about building, or do you
16 think these are gifts that you've just been asked to
17 share with others?
18 JUDGE MURPHY: Well, when I started out
19 back in the -- I mean actually in college I had
20 leadership positions, too, but I wasn't as good a leader
21 then. I didn't understand as well how to plan ahead for
22 what you need to achieve. I luckily was able to succeed,
23 but it was luck that came a long way sometimes. I would
24 say I learned an awful lot from my involvement in the
25 League of Women Voters. In those days it was such a good 344
1 training because it was very formalized, the training
2 program. Junior League was very famous for it, but the
3 League of Women Voters was very, very good. We had a lot
4 of women who were very capable that devoted their careers
5 to League of Women Voters, volunteer kinds of things, and
6 very good organizing. I learned a lot about planning and
7 how to bring people along.
8 MS. BRABBIT: What would you share with
9 others, men and women, when attempting to build something
10 wonderful for t.he future of their committee,. or. the
11 future of their organization in terms of engaging others
12 to all be on the same page? What do you think are the 13 one or two most important aspects to consider? CJ 14 JUDGE MURPHY: Well, one, you have to try
15 to bring in everybody, or a representative of everybody
16 that is going to be affected. Then you need to think
17 about the topics that need to be addressed and how you
18 can present them in an effective way that may not, you
19 know, is this threatening, the way we're going to present
20 it. How to break up into committees, perhaps, so that
21 you get a group that can work on this particular problem
22 in a way that you could have somebody that's going to be
23 an opponent on it that can help improve the final results
24 so that you won't end just in a stalemate. And then you
25 bring it all together in a larger group. You know, it's 0 345
1 nothing magic, but it's getting the right people in the
2 jobs. If you're the overall leader, you need to have
3 lieutenants at least, and get the right person that's
4 going to follow through who could manage it, and that's
5 something you learn. That's a very difficult thing. I
6 learned that in the League of Women Voters, where if you
7 have a capable person who's got the assignment and they
8 just don't do it, what do you do? That's a tough one.
9 And I can think of this one example. I said I would have
10 to reassign the responsibility and the person said, no,
ll.no, I've done all this and it's just going to take a
12 little bit more and she never did. And so I had to go to 0 13 a different plan. It's hard. 14 Many times there's a way around, I mean
15 sometimes you start out with a plan and you think you're
16 going to proceed in this way and you come up to a
17 stumbling block. Well, then you have to regroup and take
18 another direction, maybe take on a different aspect of
19 the problem at the beginning ~nd win support for that,
20 and then maybe you can circle around and come back to
21 whatever it was.
22 MS. BRABBIT: So many people have things to
23 learn from watching you, especially with this beautiful
24 building we have in downtown Minneapolis. You mentioned
25 this building project was one of the main issues that you 346 () 1 had as chief judge, and then you talked about some others
2 as well; security, internal administrative issues,
3 long-range planning, et cetera. Before we leave the
4 topic of chief judge and transition into --
5 JUDGE MURPHY: There were some other things
6 that I haven't mentioned.
7 MS. BRABBIT: Oh, you should mention those.
8 JUDGE MURPHY: This was a period when it
9 was first decided that all these things were going to be
10 locali·zed, like you would have a, some. funding that you
11 would get that you would be able to control, and that you
12 would have responsibility for the areas instead of just 13 having the people in Washington allocate everything. 0 14 That took a lot of planning, because you had to have each
15 of the units, I talked about the probation office and the
16 bankruptcy court and the clerk's office, as well as the
17 court itself had to get local budgets and plan locally in
18 a way that never had been done before, and also this
19 required more coordination.
20 Also we were just beginning the automation
21 process. Compared to now it was primitive, of course,
22 because it wasn't automation of the cases or anything,
23 but just getting data and planning and so on automated,
24 and getting, you know, the docket automated. There I
25 found that the bankruptcy court was far advanced because 0 347
1 they had a judge that was very, had been interested in it
2 and had been doing a lot. Bankruptcy court traditionally
3 has sort of been ignored by the district judges, I think
4 that's not uncommon in many areas, unlike magistrate
5 judges who are working directly with the court, but I
6 brought in the people from bankruptcy. Something like
7 that had never happened before. Whether it ever happened
8 later, I don't know. So there was, you know, considering
9 there was only two years, there was a lot going on.
10 MS. BRABBIT: What other things, Judge,
11 during your time as chief?
12 JUDGE MURPHY: Well, I mentioned a lot, you 0 13 know, the normal kind of travails about assignments of 14 chambers and parking and, you know, the courthouse
15 struggles and, you know, trying to engage this planning
16 process and the local budgeting and everything, and
17 getting everybody to think of it as we're all one, and
18 various measures in doing that. Getting the meetings
19 more formalized, not in the sense of being, you know,
20 persnickety about parliamentary procedure or anything,
21 but rather what the group really needs to focus on and
22 setting it out, planning it for a longer term than just
23 what you can do at the next meeting.
24 MS. BRABBIT: It sounds like you put a lot
25 of effort in building the community. 348
1 JUDGE MURPHY: That was the goal. But some
2 people had to be pulled kicking and screaming.
3 MS. BRABBIT: And all the while you
4 continued to maintain your same caseload?
5 JUDGE MURPHY: With the exception that you
6 got some kind of, maybe it was 80 percent of new cases,
7 because you also had the grand jury plus all this other
8 stuff. So there were struggles, some of them were mad at
9 me. And I told you, I think, maybe not on this thing,
10 but it was -very.moving for me.-when about five years ago
11 the current chief judge, the district court came to me
12 and said the district court wanted to commission a 13 portrait of me. I was very touched. To me that meant 0 14 that they weren't dwelling on anything that they were
15 dragged into at an earlier time and, you know, it was
16 pretty amazing, too, that you would have a sitting,
17 active Court of Appeals judge that you would want to have
18 a picture, if you know what I mean.
19 MS. BRABBIT: And that was --
20 JUDGE MURPHY: Because these are the same
21 judges, pretty much, or many of them are people I had
22 worked with then.
23 MS. BRABBIT: Tell us then about that.
24 JUDGE MURPHY: Oh, it was a fun event, the
25 most fun actually for me. It was a very meaningful 0 349
1 event, as I've already indicated to you, and all of the
2 judges came, except Judge Kyle, who had a TRO, and all
3 the magistrate judges came, and I think all the
4 bankruptcy judges came, and that's hard, you know,
5 because it was an afternoon. I mean that was important.
6 A lot of.people came. There were a lot of people. But
7 the most exciting for me was the role of my
8 granddaughter, because finally at the age of 72, having
9 received a grandchild, and I knew my husband wouldn't
10 want to be up pulling the cord off of the portrait, which
11 is the traditional thing in this district at least, there
12 would be a curtain in front of the portrait. And as it
13 turned out he was in Saudi Arabia, but it wouldn't have
0 14 been his thing anyway, but I fastened on the idea of
15 having Laura do it.
16 Laura was not quite 20 months old at the time,
17 but I asked her father first if he thought she should be
18 involved and he said, well, he thought so, but we would
19 have to practice. And so they came the week before and
20 we had the, the artist came with the portrait and was
21 standing here with the cover and, you know, she's really
22 little. Every time I see her, I'm surprised, you know.
23 I don't know, maybe she's two feet tall, I don't know,
24 but that's not much in these big courtrooms, and this
25 painting is huge. And so when she comes here, she's only 350
1 been here a couple of times and it's sort of frightening 0
2 to her because it's all different and everything. So we
3 had the practice, and it was a little hard figuring out
4 the best way to release the cords, but they worked out a
5 system where the artist would stand on one side of the
6 portrait and my son John would stand on the other with
7 Laura. And so the day arrived and they were late and the
8 chief judge, you know, it was time to start and, I don't
9 know, two hundred, three hundred people, there were a lot
10 of.people there. -~nd.normally I think.you should start
11 court things on time but, you know, Laura, the critical
12 person, so the minutes dragged by, you know, I don't know
13 how many it was exactly, but then all of a sudden she and
14 her mother appeared in the back of the courtroom, and 0
15 this is a big, ceremonial courtroom. And so I stood
16 there and put out my arms and she sort of ran forward.
17 You know, all these people, it must have been very
18 frightening, and as a result then when she sat down, she
19 just hung on my knees, so everybody just thinks she's
20 really devoted to her grandmother. But I treasured each
21 moment, this was real nice.
22 And then when the time came for her to be
23 involved, she and her father went up there and she did
24 pull on the cord, you know, but she was so little. The
25 pictures that they've taken, it's sort of -- Chief Judge 0 351
1 Rosenbaum had brought out a little doll, it was a black
2 doll and it was very small so she could hold it in her
3 hand, and it was an exhibit in some kind of case he had.
4 So she had been holding on that during the ceremony
5 which, you know, for a little child would have gone on
6 for quite a while, and so when she went up to pull the
7 cord, she was trying to pull it at the same time but she
8 didn't want to let go of this little doll, and so --
9 anyway, I rattle on about this, but it gives you an idea
10 about how this was a very nice touch for me.
11 Three of my law clerks that had clerked in the
12 district court spoke. Two of them are practicing here,
13 one has his own firm and is a very successful trial
0 14 lawyer, and the other has a significant job in the
15 attorney general's office, and the third one is now
16 Assistant Secretary of the Treasury and came from
17 Washington, despite his very bad schedule, and then I had
18 the pleasure of having my friend of 40 years, former
19 Magistrate Judge Lebedoff and former State District Court
20 Judge Lebedoff, who had helped me get started in the
21 state municipal court, and then I was able to help him
22 get started as magistrate, and so that was nice.
23 MS. BRABBIT: That's a beautiful gift.
24 JUDGE MURPHY: Well, you were a very
25 wonderful one to have there. 352
1 MS. BRABBIT: Tell us now about the Court 0
2 of Appeals process.
3 JUDGE MURPHY: Neither President Carter nor
4 President Clinton had the practice, like some of these
5 Republican presidents have, of calling the judge to tell
6 them that they were going to be put forward, so how did I
7 find out about it? I have to think it over, because it's
8 such a long process, because even then when your name is
9 going to be put forward by the president, you still are
1 0 going to h-a ve more s c rut in y by the Sen ate , . and it was a
11 Republican majority that I went through for the Court of
12 Appeals. No, maybe just for the district court. You
13 have to put yourself back in time to think about these
14 things. 0
15 When you first know that you're going to be put
16 forward, the FBI starts their investigation and
17 everything. So it isn't like you get a call and you're
18 told you are going to be a judge, because there are a lot
19 of hurdles. And whether I got a call from, probably the
20 attorney general's office for the district court, maybe
21 from the White House counsel's office, I don't remember.
22 I would have to really think it over.
23 MS. BRABBIT: When was your swearing-in
24 ceremony and where?
25 JUDGE MURPHY: For the Court of Appeals? 0 353
1 MS. BRABBIT: Yes.
2 JUDGE MURPHY: It was in the Landmark
3 Center in St. Paul.
4 MS. BRABBIT: Okay.
5 JUDGE MURPHY: Because I knew that there
6 would be an awful lot of people, and the courtrooms in
7 the St. Paul courthouse were too small, I didn't want to
8 have them divided up. I had been sworn in originally in
9 the St. Paul courthouse, Judge Renner and I in 1980, and
10 there had been such an overflow crowd that a lot of
11 people had to be in other rooms where the stuff was piped
12 in, and I didn't want to have that. The Landmark Center
13 was an old building where the court had been, the Court
0 14 of Appeals had been, and where Judge Devitt had sat, the
15 district judge, and then I had a reception afterwards in
16 the late, lamented Minnesota Club, which was just across
17 the street practically.
18 MS. BRABBIT: Do you have a program from
19 that event, Judge, in '94?
20 JUDGE MURPHY: Maybe somewhere. I couldn't
21 put my fingers on it though. I'm sure I must.
22 MS. BRABBIT: Tell us about the event.
23 JUDGE MURPHY: All the judges came, except
24 Judge McMillian. I was sorry he didn't come, because I
25 loved him. And my friends were stunned how old the 354
1 judges were. Of course, now I'm one of the old ones. 0
2 MS. BRABBIT: No, you're not.
3 JUDGE MURPHY: And then I had a dinner for
4 the judges after the reception. In a circuit as big as
5 ours, it's not a simple thing for the judges to come
6 because they're all spread out, these different states.
7 MS. BRABBIT: Did you have speakers?
8 JUDGE MURPHY: Yes.
9 MS. BRABBIT: And who spoke on your behalf?
10 - JUDGE -MURPHY: Paul Magnuson, I think,
11 Margaret Chutich, somebody from the ABA perhaps. That's
12 another thing about in the Democratic period, they didn't
13 send somebody from the White House or the Justice
14 Department, although Eldie Acheson·came for Ann 0
15 Montgomery's. Anyway, I can't remember precisely if
16 there were others or not.
17 MS. BRABBIT: Did you meet President
18 Clinton through this process at all?
19 JUDGE MURPHY: No, I met President Clinton
20 when he was governor of Arkansas. We had a judicial
21 conference in Little Rock in, I don't know, the early
22 '80s. He was governor at the time. Now whe·ther that was
23 in his first governorship or the second, I can't say. It
24 could have been real early in his first one. Because
25 then he lost and then he ran again. But anyway, I C) 355
1 remember the house as not being that big, the governor's
2 mansion, and I was just entranced by the governor's wife.
3 She was very unassuming and very interested in meeting
4 me, and indicated that she was a practicing lawyer, trial
5 lawyer. We had a nice conversation.
6 One of my favorite judges, George Howard, I
7 found out what a trail blazer he had been as an
8 African-American, one of the first ones to go to law
9 school in Arkansas. But I remember at that event George
10 Howard asking me if I had been a schoolteacher, and I
11 thought that was such a, you know, it was a, he meant it
12 as a I'm sure he wouldn't have thought that any of the 0 13 male judges had been a schoolteacher. But he said it in 14 an admiring way, and he's a very dear man.
15 But, anyway, so no sign of the governor until
16 later in the event when he came in with his, you know,
17 just a very young version of how he looks now, with his
18 hair the way, you know, looking very filled with energy
19 and everything, and so I sort of perfunctorily met him.
20 It wasn't like I felt -- I mean I felt I had met Hillary
21 Clinton. And I then ran into him at a reception the
22 Federal Judges Association had at the White House. But
23 he was never that interested in judges particularly, so
24 it wasn't something like he would want to seek out.
25 I think I told you about when I went to the 356
1 White House for the National Association of Women Judges
2 meeting and President Carter wanted to meet with the
3 women judges that he had appointed in the Blue Room. And
4 we went in and we were just a small, little group, and
5 each of us had our picture taken individually with him at
6 his request, and that was a very special thing. But
7 President Clinton didn't have that same -- there were
8 other things that were more a priority for him, I think.
9 MS. BRABBIT: So your swearing-in was here
10 in St. Paul ~nd then .you_start in --
11 JUDGE MURPHY: I already told you that
12 Dr. Deutsch showed up there, I think. 13 MS. BRABBIT: No, I don't think so. 0 14 JUDGE MURPHY: I graduated from the
15 University of Minnesota in Central European Area Studies,
16 which was really a double major in history and German,
17 and he was my advisor, and I took a graduate seminar from
18 him while I was an undergraduate, and he advised me about
19 my Fulbright scholarship. I think I did tell you --
20 MS. BRABBIT: Now it's coming back to me.
21 JUDGE MURPHY: that I ended up marrying
22 him to his second wife. But there he was in a wheelchair
23 at the swearing-in.
24 MS. BRABBIT: How nice.
25 JUDGE MURPHY: So I won't go over that 0 357
1 again. These events bring out unexpected things, like
2 the unexpected letter from Bob Hobbins, an example like
3 Harold Deutsch showing up at that.
4 MS. BRABBIT: That must have been very
5 touching. What was this transition like for you?
6 JUDGE MURPHY: Well, I already knew quite a
7 bit about it, you know, and I had gone regularly to the
8 judicial conference meetings, I had been on the judicial
9 council. I knew the judges pretty well on the Court of
10 Appeals, so it wasn't a difficult transition. I thought
11 it was going to be more ivory tower feeling than I've
12 ever experienced. The very first day I started, the 0 13 e-mails were coming in like mad about, you know, this 14 decision and that decision and whatever. You never feel
15 alone because you're hearing from these judges every day,
16 deciding these no-argument panel decisions of one kind or
17 another. There are so many. We have a huge caseload in
18 our circuit. Each judge has -- I can safely say his --
19 his own way of expressing himself, and the personality
20 comes through in this, and you begin to see how they
21 react on the spur of the moment to these things. And,
22 you know, the work gets dumped on, and it's so much more
23 than you could ever imagine when you're there as a
24 visiting judge, because then you're just dealing with,
25 like two days of cases or maybe even three days, I 358 () 1 sometimes had sat for three days, so I knew that was
2 going to be more when I was there for five days
3 obviously, but I didn't realize the bulk of the caseload
4 is being decided by panels without oral argument and how
5 all of that works and the whole en bane practice, which
6 at times in our court has been extremely active. This is
7 a factor that it is, too, voting on it all the time, and
8 more en banes being taken than should be, I think.
9 MS. BRABBIT: Why is that?
10 JUDGE MURPHY: Well, new judges.are sort of
11 intrigued with it, and even though the rule says that you
12 don't have an en bane just because you don't like the
13 decision. So, you know, when they see something that
14 they want to change the direction of, the court doesn't 0
15 always vote on it but they call for votes a lot. There's
16 a lot of work on these votes because you've got to read
17 all of the papers in the case. And even if you don't
18 take an en bane, in order to vote you've got to do a lot
19 of work.
20 (End of session.
21
22
23
24
25 0 359
1 (April 25, 2007.)
2 JUDGE MURPHY: I don't know whether I spoke
3 to you about my installation, it was at the Landmark
4 Center, and subsequent to that there had been other,
5 several ceremonies there in that big, main floor space,
6 but I don't think there had been one before that, and it
7 was a very nice place. But one of the terrible things is
8 that there was a blizzard. It was the Monday after
9 Thanksgiving, and that weekend, we frequently get
10 blizzards in Minnesota. And I had, for example, the
11 architect of this building was going to come from New
12 York and the flights were canceled and everything, and to
13 walk from -- and at that time the Minnesota Club was
0 14 still in existence as a private club, which was just a
15 short distance across the park there, but the snow was up
16 to your knees and it wasn't shoveled and everything. It
17 was hard to get from the Landmark Center over to the
18 Minnesota Club, and there was a big reception.
19 Then I had a dinner upstairs for the judges of
20 the court, the circuit executive and the clerk of court,
21 and Chief Judge Arnold had, it was my idea to have the
22 judges, and he had suggested, it was a very welcome and
23 wonderful suggestion, that I have the clerk of court and
24 the circuit executive, and, of course, he had been very
25 helpful to me and encouraging to my candidacy. And 360
1 another person who had been very helpful was Judge
2 Heaney, both on giving me the impetus to go forward, and
3 then Judge Heaney said to me, you need a committee. I
4 thought, well, gosh, you know, Judge Heaney had been
5 involved in politics at the national level and so on, and
6 that's like a political campaign. But he told me I had
7 to get a committee, so I thought, well, who would I have
8 on the committee and what would the committee do. But,
9 anyway, I got have I told you this stuff?
10 MS .. BRABBIT: No.
11 JUDGE MURPHY: Anyway, I thought of some
12 various friends and members of the bar and some prior
13 clerks and we had a little meeting. It was awkward, you
14 know, everybody sort of wondered, well, what is it that 0
15 one does. It wasn't like -- the funny thing about it is
16 that it was so productive because everybody, there wasn't
17 any chair, there weren't any assignments, it was just
18 sort of, well, what would one do. And out of that,
19 everybody there did something that helped secure this,
20 and I think I told you that the great challenge was --
21 because I had had a lot of experience that people knew
22 about, you know, on the federal district court. The
23 great challenge was the fact that there wasn't an opening
24 in Minnesota. I think we went over that. Because of
25 having been a district court judge for 15 years, and 0 361
1 having fairly frequently sat on the Eighth Circuit as a
2 visiting judge, I was a known quantity, and people really
3 made me feel welcome, the individual judges. It's not
4 that when I started on the district court that people
5 said we don't want you here, but it was a very different
6 kind of reception.
7 And I know I've already said this, but I was
8 very aware of being the first woman, the only woman, but
9 I never dreamt that I could be sitting here, at the end
10 of April in 2007, and that I would still be the only
11 woman. And, you know, there have been ten or eleven
12 appointments since me, and I -- Not only have there been
13 no other women, but there was only one that was actually
14 put up, and that was at the very end of the Clinton
15 administration, so it was too late to be able to get
16 through. But no women's groups have complained, or paid
17 any attention, and there are women lawyers' groups in
18 I know the one in the St. Louis area is very active,
19 they've had me there a number of times, they've been very
20 welcoming. And that meant a lot to me, because when I
21 first started they invited me, they had a celebration for
22 me and it was generous, because while they were happy to
23 have a woman, you know, I'm sure they would have liked to
24 have had one of the Missouri candidates. It would be
25 only natural. And Minnesota Women Lawyers are very 3 62
1 supportive of me.
2 MS. BRABBIT: What do you think are some of
3 the greatest challenges for women and some of the things
4 that individuals and organizations can do to change that
5 landscape?
6 JUDGE MURPHY: Well, I just go back to what
7 changed it in the first place. It was women talking to
8 people in the political process that are the ones that
9 make these appointments and making it clear that they
10 want it, that they expect it. They may want to appoint
11 people that are going to do a good job, but they want to
12 reward people that worked on campaigns, or they want to
13 make the people that they hope will support them again,
14 or their party, happy. And so women have to, if women
15 care, or if men who support women care, they have to. I
16 think I told you that Sandra Day O'Connor and I talked
17 about this at the dinner before she spoke at the
18 Minnesota Alumni Association, which would be probably,
19 was it a year ago May or two years ago May? Time flies
20 so fast. I think it was a year ago. Yes, it would have
21 been a year ago. And I commented to her that I found it
22 so amazing that no women's organized groups seem to speak
23 about the fact of how important it was to have a woman
24 appointed. They did speak about let's remember about
25 choice when these appointments are made, but -- because I 0 363
1 think it's important even if the, let's say that the
2 women that President Bush would be appointing would not
3 be on all fours with the interests of these groups, how
4 they might see it. Well, that's a fact of life, whoever
5 is appointed, whether it's men or women, but I think it's
6 important just to know that there are women in these
7 places, too, because look at Sandra O'Connor, she
8 morphed, because she was appointed -- let's take that
9 issue of choice. She was appointed as somebody that was
10 anti-abortion. Okay, I'll get off my soapbox here.
11 Well, then you have immediate issues like
12 appointing law clerks. I happened to have three law () 13 clerks as chief judge, so I had an opportunity, I mean 14 the average, the regular component for district judge is
15 three employees, and most have two clerks and a secretary
16 or a judicial assistant. The chief judge gets one extra,
17 so I had three law clerks and a secretary. And then I
18 wasn't familiar with the old-fashioned way, which was to
19 have two secretaries. That goes to, you know, before
20 everything got so automated. So I hired another
21 secretary and it worked very well in the transition, but
22 as time went on and the full volume of work became more
23 apparent to me, and as things got more automated, I
24 thought to myself that if one were ever to retire I would
25 get a fourth law clerk, which I did when Sue Laukka told 364 () 1 me she was going to retire. She had worked for me, I
2 think, for, oh, a long time, because she started in '85
3 and then she retired two years ago, it would have been in
4 2005, so it was 20 years: That's what caused the arrival
5 of Jake.
6 So I had hired two new law clerks that were
7 going to start. I had one that was carrying over, Betsy
8 Von Hecke, and then I had two that were arriving, Kara
9 Benson and Tom Peckham, and they had been hired for two
10 years as -district court clerks .. I knew most, actually
11 that wasn't correct, but I had the impression that most
12 circuit clerks worked for one year. Actually it turned
13 out, as I got to be more familiar with it, especially in
14 the southern part of our circuit, a lot of people had
15 career clerks, or clerks for longer periods. Anyway, I
16 gave Tom and Kara their choice when they showed up, if
17 they wanted to work for one year or two years. They said
18 they would like to think about it for a week. And I was
19 overjoyed at the end of the week when they said they
20 wanted to stay for two years. And they turned out, they
21 both were just wonderful clerks. Kara works at, is a
22 partner at Faegre. Tom has a more unusual history after
23 clerking, because as a result of the work he did for me
24 in those two years -- I don't know if we talked about
25 some of the cases that I had as a district judge in 0 365
1 Indian law, really interesting cases. And we had some
2 very interesting cases while Tom was there and worked on
3 them -- and as a result of that experience, working with
4 me on trying to develop the law in that area, he decided
5 to go into Indian law. First he worked at Dorsey &
6 Whitney, and he had some very interesting cases there,
7 Indian cases, but then he decided to go with this Indian
8 law firm in Albuquerque, and he's got Indian clients all
9 over the country. I mean he's doing so well, I'm so
10 proud of him. One of his clients is the Red Lake Band,
11 they're a client of his, so he comes to Minnesota quite
12 regularly. He's really on the national picture and I'm 0 13 so pleased. I had one other clerk, too, that for the 14 same reason went into Indian law.
15 If I look back on my work as a judge, that's one
16 of the areas that I feel I had many cases, while on the
17 circuit court, too, that have developed the law related
18 to Indian treaties to questions of disestablishment, of
19 whether reservations have been disestablished and, if so,
20 to what extent, to issues about trust land and Indian
21 patents, about whether the affluent tribes that purchased
22 land can put it into trust land, about Indian gaming,
23 many issues related to that, about tribal courts and
24 whether federal courts should defer to them and when, the
25 jurisdiction of tribal courts, lots and lots of issues. 366
1 Another area, broad area, is issues of sex
2 discrimination and sex harassment. Partly it is the
3 ability to understand what is going on in these factual
4 circumstances and be able to explain it, put it in a
5 context that others can understand what the theory of the
6 case is. An important issue in the Quick v. Donaldson
7 case, it was the first one in the country saying that
8 same-sex harassment could be challenged under Title VII.
9 It was very controversial. The Supreme Court, of course,
10 later adopted that posit~on.
11 A lot of race-based cases. You know, if you've
12 been the underdog, you can understand better what 13 circumstances have all gone into some of the settings, () 14 and how things that may not sound so bad at first to
15 people that have never had any of these experiences,
16 what's really involved in them. I've got a case right
17 now, of course it may well go, they haven't filed a
18 petition for rehearing yet, but it's really a very, very
19 significant case, not just in our circuit but beyond.
20 But there have been many of them, and I feel really good
21 about that. It's not just that I'm interested in those
22 areas, but I feel I've definitely made a difference in
23 those areas. There are a lot of other areas, First
24 Amendment areas, too, I think, same thing, and I have a
25 case in that area that's being voted on, it's whether () 367
1 it's going to go en bane, and I've had some dissents in
2 that area that I thought were significant.
3 Anyway, back to the beginning here and being on
4 the Court of Appeals, I thought that it was going to feel
5 like more of an ivory tower than the actuality of it.
6 Although I must say, to go from chief judge where you had
7 somebody at your doorstep all the time because you've got
8 a lot of divisions under you, you know, the bankruptcy
9 court, the probation office, the pretrial services,
10 magistrate issues, district judges, of course, being
11 enough in and of themselves to be dealing with and, you
12 know, you get somebody that comes, there are a lot of (_) 13 employees and, of course, the clerk's office of both the 14 district court and the bankruptcy court, a lot of
15 employment issues come up. Theft issues. Problems about
16 weapons and the policy in the suboffices about carrying
17 weapons and so forth. Parking, that's always a good
18 problem administratively. Just making all of that
19 function. So you go from that to being a single judge on
20 the Court of Appeals, where the judges are all living in
21 different states, we've got seven states, and even in the
22 state it just so happens that two of us right now are in
23 the same courthouse, but Missouri's got two, one's in
24 Kansas City, one's in St. Louis, and so on, so rather
25 isolated. 368
n\_ i 1 But the amazing thing was -- I don't know what
2 it would have been like if you went on before e-mail, but
3 there already was a lot of e-mail in '94, and you're
4 getting stuff from the judges every day. It's like
5 they're all in here. You know, e-mail gets the
6 personality of the individual, too, so I never had that
7 feeling I thought I was going to have. But the hidden
8 part of the Court of Appeals' work is like an iceberg. A
9 huge portion of the cases are under the water. As a
10 visiting judge, you know, you're seeing what it's like
11 sitting on a portion of a week of cases that have oral
12 arguments but you're not involved in what happens after, 13 you know, if there are en banes and so on, so you're just 0 14 there at the beginning of those, and you don't have any
15 idea. Because when you've got 3,500 cases that are
16 decided every year, a very small percentage are decided
17 by these hearing panels. Rather, there are panels of, at
18 any one time I'm on what we call screening panels, which
19 are panels that decide no-argument cases, but the merits
20 of these cases, plus any other motion that might be
21 associated with them at the time that they're ready for
22 disposition.
23 And at any one time I'm also on a panel, an
24 administrative panel in our circuit. Different circuits
25 handle all these things differently but they all have to 0 369
1 do this work, and that is handling motions or preliminary
2 issues that come up. The administrative panel can
3 inherit the case, too, if it's a complicated case and you
4 get it first because there's an issue about a stay or
5 motions to dismiss for various reasons. You know, there
6 are bail issues, whether there are appealability issues,
7 whether things are barred, a lot of things come through
8 that route. They may or may not be disposed of at that
9 route. The particular motion will be disposed of, but
10 the case may have reason to live through another day and
11 go on to be an argued case. You're deciding those every
12 day. You're getting attorney fee things, criminal 0 13 justice act, they all have to be done. Of course, you 14 get fee petitions on cases that are decided. All the
15 judicial discipline complaints come through the Court of
16 Appeals. You've got those to be dealing with. You've
17 got just, you know, the kind of business any court does
18 about having the rules, and then we appoint the
19 bankruptcy judges and we appoint the federal defenders in
20 the various districts, so you get on panels to deal with
21 that, make recommendations and the interviews are before
22 the Court of Appeals, so on and so on. There's an awful
23 lot that's not just the argued cases that you normally
24 think of. But those, of course, are the ones that are
25 generally the most interesting because they are the ones 370
1 that not to say that everyone has a new issue, because
2 some of them are just new wrinkles on developed concepts.
3 But a significant number of them have new issues,
4 brand-new issues, and those are what's really
5 interesting, and you have to make up the law really. I
6 mean you use existing law, of course, and some of it is
7 really fascinating.
8 One of these Indian tribal cases that was about
9 whether a reservation had been disestablished, and very,
10 very contentious. The S-t.a te was. sure it had .. been
11 completely wiped out, and in the end I had to agree that
12 most of it had been, but it seemed to me, and worked out 13 a way to achieve this result, that there was a core that 0 14 still existed. I don't want to go into the case. And
15 that was new, something different. Went on up to the
16 Supreme Court. Didn't get reversed. I never heard
17 anything more about it, years go by, all of a sudden,
18 about a month ago, I get a motion for petition for writ
19 of mandamus against the district court to whom it was
20 remanded for further proceedings. I always wondered what
21 had been going on and I'd, sometimes at judges' meetings,
22 see this judge and I felt like asking but I didn't. So
23 anyway, this raises whether this is going beyond what it
24 should be, you know, under the law and so forth, so we're
25 going to get responses. So it's interesting. You know, 371
1 you think a case is, I thought maybe they had agreed on
2 something because you never got it back, you know.
3 Really interesting. When I went out for this portrait
4 hanging I saw the clerk that had worked on this, she'd
5 clerked in '94 or '95, and I hadn't seen her for quite a
6 while. Maybe not since then. You know, kept in touch a
7 little bit. So I said, Sonja, do you know what case has
8 just come back? And she was really surprised, you know.
9 MS. BRABBIT: She hadn't heard?
10 JUDGE MURPHY: Well, no. There would be no
11 way she would know because this is just in the court
12 right now that this petition exists. You know, we 0 13 haven't had the full, this is going to be very 14 interesting, very interesting. Anyway, it's an exciting
15 job. The immediate task isn't as apparent as it gets to
16 be afterwards because you know right away, while you want
17 to do the best job you can writing clear opinions, that's
18 been a goal of mine from the beginning, that I wanted to
19 write opinions, so as far as possible, in English, you
20 know, not using legal jargon, that not only the lawyers
21 would understand but that their clients could understand
22 and get the just result and to be timely, not have it
23 longer than necessary. Of course, I was aware that
24 obviously you needed to get at least one other judge to
25 go with you and you would hope to get both. But that was 372
1 really the limit of it, because as a district judge what 0
2 you're trying to do is get a just result in this case,
3 but after you're here for a few years -- I mean I had a
4 little bit of that in the district court where I would
5 have a published opinion, I didn't send many opinions to
6 get published, but I'd have a published opinion and it
7 would get picked up by some circuit court somewhere. You
8 know, you really felt good about making the law. But
9 here, being on the Court of Appeals, an opinion that you
10 write and you're-thinking about getting the_ right result
11 on that case can influence a lot of other cases, not only
12 in your circuit but in others. In other words, it's that 13 developing-of-the-law aspect of appellate work, as 0 14 opposed to the district court where you're trying to get
15 the right decision there, you know. It was always
16 interesting when it was a case of first impression, but
17 that's really interesting, and the longer I'm here, the
18 more interesting it seems to me.
19 The challenge, you know, changes as time goes
20 on. Right now our court is in a different situation than
21 when I went on. All the while that I was on district
22 court, and in most of the years that I've been on the
23 Court of Appeals, there were only intermittent changes on
24 the Court of Appeals. But in the first year of the
25 George W. Bush presidency _he appointed the majority of 0 373
1 the court. He appointed six judges. He'd appointed a
2 seventh soon after he started his second term. But
3 that's a lot of judges in a very short time, and I just,
4 in looking back, I see the assimilation process as
5 different, because when there's one judge that comes
6 along, they generally accommodate into an existing
7 culture. I would say there was one who had been managing
8 a law firm and he came in and he really had ideas about
9 how things should be done differently that he expressed
10 right away but ran into a roadblock because people were
11 used to doing it the way they wanted it and he wasn't yet
12 familiar with all of that. But when this group came in, 0 13 they were the majority, and each one had a different 14 concept, depending on whatever they had been doing. One
15 of them had clerked in the Supreme Court not long before,
16 so he was very, thinking about, well, why don't we do it
17 the way the Supreme Court did procedural things. That's
18 not to say that all these things changed, but there's a
19 definite -- and I don't want to go into it right now, but
20 a lot of things are somewhat different in that respect.
21 I'm just talking about the way things get done right now,
22 not about the substance, which naturally changes,
23 depending upon who the appointing official is.
24 MS. BRABBIT: So are you talking about
25 changes in culture and in process? 374
1 JUDGE MURPHY: Yes. I would say, for
2 example, right now it may be just a temporary state, I
3 don't know. There's a much greater inclination to --
4 well, let me say there's less of a tendency to give the
5 writing, the author judge some leeway in the way they
6 want to write an opinion. And this really, I'm not the
7 object of, because I haven't had this experience, but I
8 am observing where there are more concurring or
9 dissenting opinions, you know, than before. It's more of
10 a desire to stake out exactly how you think i~ should be
11 stated or the way the issue should be developed or what
12 should be emphasized, and that may change. So that's a 13 process kind of thing. 0 14 MS. BRABBIT: What are some of the biggest
15 changes from the time you started with the circuit to
16 today?
17 JUDGE MURPHY: Well, there's a huge one,
18 and that is, it's related to IT and automation and the
19 fact that everything is going on-line in our court. Like
20 i£, depending upon the status in the district courts, if
21 something comes through Kansas City or Nebraska, District
22 of Nebraska, everything is online. So it used to be you
23 were a prisoner of the lawyers who made up the record on
24 appeal, and that's true in some of the cases still. But
25 now if you want to see some deposition or something in 0 375
1 some of these places, it's there. Depends upon the
2 status of what they've done in that district. That's a
3 huge difference.
4 MS. BRABBIT: And it sounds like it's
5 expected.
6 JUDGE MURPHY: Well, it's still in its
7 implementation stage and it's frustrating. I mean
8 Marilyn, my judicial assistant, is, you know, running
9 into extra work because of it and, of course, I am, you
10 know, pretty much of a, I wouldn't say illiterate with
11 it, but I'm still pretty much a legal pad and pen lawyer.
12 Obviously the younger judges come from practice where
13 everything's been on the computer and they write, that
0 14 way, but that doesn't make any difference about the
15 substance of what gets done.
16 MS. BRABBIT: You spoke about --
17 JUDGE MURPHY: More people are having
18 clerks for longer periods perhaps. Certainly now almost
19 everybody has.one assistant of some kind. Judge Benton,
20 for example, it's very interesting. He was Commissioner
21 of Revenue in Missouri before he -- he's a CPA as well as
22 an attorney. Before he was on the Missouri Supreme Court
23 he was Commissioner of Revenue for the State of Missouri,
24 and he had his deputy, he took her to the Supreme Court,
25 and he's got her as his assistant and she is formidable. 376
1 I mean she catches any mistake. She goes over everything n
2 before it goes out of his office, and she goes over
3 everything that comes, you know, if you've got a word
4 that didn't get spelled right or a mis-cite, she catches
5 it.
6 But generally, people have four clerks now.
7 That's another change. There's a big change with every
8 chief judge, because each one has a somewhat different
9 way of doing it and handling when there are crises, and
10 the personalities are .. sort of, some of them.are more
11 tense, some of them are very people-oriented and able to
12 bring people together easily. They might be ones that
13 don't want to fiddle and arrange everybody's opinion, and
14 some others might be of another type. So, you know, 0
15 there are differences as that goes on.
16 MS. BRABBIT: We've been talking about
17 changes during your tenure, and hopefully soon one of
18 those changes will be more women obviously.
19 JUDGE MURPHY: What gives you that hope?
20 MS. BRABBIT: I'm a Pollyanna. And
21 hopefully sooner rather than later. Can you for us,
22 Judge, outline, I know we've had this dialogue before,
23 but outline for this particular endeavor the reasons why
24 that diversity is so important, particularly gender
25 diversity, and what you really think some greater 0 377
1 diversity can bring to the Court of Appeals in the
2 future.
3 JUDGE MURPHY: Well, first of all, I think
4 diversity is great. For example, having Judge Benton, I
5 mean he's just an effervescent, delightful guy. You
6 know, I've told you about his background. I love it when
7 he's on a panel, and I'm generally the presiding judge
8 now because I've been around for so long, you know. If
9 it's a case involving some financial accounting or
10 something, I'm certainly going to turn to Judge Benton
11 first. Judge Smith was on the state commission that
12 dealt with regulation of rates and things of that sort, 0 13 utilities and so forth, so you've got something like 14 that. The lawyers will be pitching that -- oral argument
15 is always very interesting because the savvy appellate
16 lawyers figure out ahead of time what judge on that
17 panel, maybe there will be a multitude, is most likely to
18 understand their case and they will pitch it to that
19 person. It's very interesting to see when that happens.
20 But anyway, obviously somebody that's been a U.S.
21 attorney is going to have certain important insights into
22 criminal law. Somebody who has been a securities
23 lawyer -- I mean we could pick out all kinds of things.
24 If I use Judge Smith as an example again, as a recent
25 appointee, I have observed with interest that he is 378
n~-. 1 particularly sensitive in cases where there is, where he
2 senses that something untoward has occurred because of
3 their race.
4 And I've already told you about some of the
5 sensitivities that I happen to have. When I was
6 president of the Minneapolis League of Women Voters, we
7 did a history of Indians in Minnesota -- well, I'm a
8 minority in one sense, although a majority in the country
9 as a woman -- but I'm very interested in that history
10 part.. You could have.all kinds of people. But I feel
11 often, just when, particularly appearing in a trial court
12 but also in the Court of Appeals, you go in and you see 13 the people sitting there and you've got a case that's 0 14 about who you are and there isn't anybody there that
15 looks to you like they're going to understand it. It's a
16 public perception, too. And I definitely, you know, when
17 I'm sitting there hearing these male lawyers tell me how,
18 I'm not talking about the legal issues right now, but
19 about how women feel about things, you know, it's hard
20 not to feel, oh, yeah? And not ail women would feel the
21 same way, but it would be nice to have another one or two
22 or three. I mean there are eleven judges. So I think
23 it's very important.
24 MS. BRABBIT: Different social circles and
25 scholars have long debated the notion that women as a () 379
1 group bring different skills and traits to a particular
2 setting. Are you of the belief that that is true or -
3 JUDGE MURPHY: Yes.
4 MS. BRABBIT: Okay.
5 JUDGE MURPHY: I think in general, it's not
6 true of everyone, there are some women that are abrasive,
7 and I'm not going to say that I might never be abrasive,
8 but in general I want to be, I want to be pleasant. I
9 want to get along with everyone. And to me, that's the
10 best way to work in a group is to recognize that each
.11 person has a value that they're bringing to the table and
12 to treat them that way and to listen carefully, because 0 13 you lea~n a lot by listening, and I think women are 14 particularly good at listening. Whether you're listening
15 to the lawyers arguing or hearing the parties concerned,
16 you know, through the intermediary, or whether you're
17 listening to your colleagues, that's very important, and
18 I think it's a skill that many women have.
19 And there's, you know, I just think women are
20 less apt to be abrupt and to -- I can't say this about
21 all women, because some are suspicious of the worst
22 intentions the other person has and so on, but working
23 with groups, you don't get very far if you are going to
24 have a chip on your shoulder all the time. I think these
25 traits that I'm talking about, wanting to get along, 380
1 wanting to bring people together, wanting to listen,
2 trying to find a way that you can have agreement, I think
3 those are skills that a lot of women have, and they're
4 valuable.
5 MS. BRABBIT: How influential can sitting
6 judges be in the process of diversifying, particularly
7 with respect to gender, the bench?
8 JUDGE MURPHY: Well, only when asked about
9 things. You know, there have been times when I've been
10 asked by the appointing authorities about prospects,
11 about what they should be looking for in appointees, and
12 you can do that, but that's only if somebody asks you. 13 You can't, I don't think it's an appropriate role for me 0 14 to call up Senator X. But when you're speaking you can
15 bring this up, just like I'm doing it now with you. You
16 know, you're out there in the world working on this and
17 you don't need me saying that.
18 You know, judges are very limited in what they
19 can do. They have a lot of power in regard to cases that
20 are before them, but as an individual Court of Appeals
21 judge, you're only as powerful as you can be persuasive
22 with your colleagues. But otherwise, you're so limited,
23 and you don't realize that at first. At first it's sort
24 of a relief, for example, that you can't give money, or
25 you can't -- this is still true of federal judges. After 0 381
1 the court's decision on the state judiciary it's, of
2 course, not, but I dissented in that case.
3 But anyway, as the years go on, and look how
4 many years it's been for me, it's been 31 years of not
5 being able to go to functions, political functions, which
6 are fun. A lot of people, friends I don't see because I
7 don't do that. You get to know all the people, areas you
8 can influence people on, you're really out of the loop,
9 and that's the price you pay.
10 MS. BRABBIT: Do you find yourself ever in
11 dialogue with your colleagues about the importance of
12 gender difference on the bench? 0 13 JUDGE MURPHY: No, that would be -- you 14 heard me say that I wanted to influence them in cases.
15 Preaching to your colleagues is not the way to have a
16 positive influence. Rather, your task is, in the context
17 of an individual case, is to make the best showing for,
18 let's say it's an issue about women, the best showing,
19 bringing all the law and the facts forward in the best,
20 most effective way to get the result that you think is
21 right.
22 Let's face it. It's a political process that
23 brings people to -- now I'm the exception, because I was
24 never very active in a political party because for years
25 I was on the board of the League of Women Voters, and 382
1 they had a rule then, I don't know what they have now, 0
2 that you couldn't be active in politics. There was a
3 little window of time between when I went to law school,
4 there were a few years when I could be active, but before
5 I got my first judge job. So when I was in law school,
6 because I gave up the League thing, that was just when I
7 went into law school, so there's three years of law
8 school, two years of practice, that was five years. So
9 most of these people have all been involved in politics,
10 and that.'s ho~ they came to the attention of the pe9ple
11 that appointed them. And even me, you know, the people
12 that appointed me, the political people that appointed 13 me, thought that I was going to have certain outlooks, 0 14 and you come with those outlooks. And if one colleague
15 on your court is going to start giving you a little
16 lecture on this or that, you're going to be a little
17 resentful. I mean if they started telling me about, you
18 know, I don't know what it might be, but you get the
19 picture. And they aren't the ones that appoint the
20 people anyway.
21 Now I must say that there's a huge difference.
22 When I went on the district court, for all of the years
23 that I was there until Jim Rosenbaum came, all the rest
24 of the judges had a wife that was an at-home wife, and
25 when I went on the Court of Appeals, that was true of 0 383
1 everybody, I think. And that makes such a difference,
2 because you have somebody that's taking care of all those
3 other aspects of your life, whereas I was expected by my
4 husband to take care of all those other -- I mean I
5 certainly failed the mark in many ways -- aspects of
6 life. And that's a big, the whole thing is very
7 different, you know, you don't have -- The only women
8 that show up for these social events are the wives, and
9 they resent, you know, at one time in the beginning. So
10 when Jim Rosenbaum came, you know, his wife was
11.practicing law and then she later went on the state
12 bench, that was a very good thing. He was a younger 0 13 person that sort of understood the situation that I was 14 in, too. Okay. So it's only with these new judges where
15 they don't all have wives that are working, but some of
16 them do, and that's a difference.
17 MS. BRABBIT: Work/life balance,
18 particularly for women, remains a hot topic in the legal
19 community today.
20 JUDGE MURPHY: Oh, sure.
21 MS. BRABBIT: What advice or
22 recommendations would you give to people?
23 JUDGE MURPHY: There's no way you can win,
24 first of all, because women, you know, the culture is
25 going to have to change an awful lot before -- I mean 384
1 part of it is just the way God made us, you know. It's 0
2 women that have the babies, it's women that produce milk
3 to feed the babies. But I look at my son John, he is
4 certainly, if not the primary caretaker of his little,
5 tiny, little children, completely co-involved. I mean he
6 is, he's gifted, though, with little kids and loves them.
7 As it turns out, you know, most men don't like housework
8 and going to the grocery store and cooking. Some of them
9 like to cook. Anybody who's got a husband that likes to
10 coo~ is a very fortunate woman. Me~.of my husband's
11 generation, for many of them it was -- I remember Warren
12 Spannaus, I mean to him it was a mark of failure on his
13 part if his wife were to go to work, because he came from
14 a family where, or a setting, where if the woman had to 0
15 go to work, it meant the man wasn't being man enough to
16 get money to support the family, and I've heard him tell
17 people that.
18 And of my husband's generation, for many men it
19 was like something wrong with them if their wife was
20 going to go to work. And certainly when I see the
21 difference between -- you know, I used to, even when I
22 was so active in the community, even when I was in law
23 school, make these wonderful dinner parties with all
24 kinds of canapes, do everything, keep the record of who
25 had been at which party and what the menu was so that I 0 385
1 wouldn't be giving the same menu, spotless house, et
2 cetera, although my husband started to do the dishes and
3 his own laundry when I went to law school, and that was
4 really great. The kids did, too, and they learned how to
5 make their own dentist appointments and stuff so that,
6 you know.
7 When I started law school, I think I've already
8 said this, like who's going to hire her, and people made
9 bets that I wouldn't be able to get a job. Fortunately I
10 didn't know about that. So it looked like this was
11 really a crazy time to go, and it was a very hard time
12 for me to go, which I told you about. Now people, many 0 13 people told me, for years now, you did it the easy way 14 because you were able to stay home with your children,
15 and these women are feeling bad about how they're not
16 able to do that they think. And it's true that if you
17 take the time off, later it can be harder to get back in,
18 because the natural hiring place is when you're first
19 graduating from law school. That's why I'm saying
20 there's no good way because a woman is going to have to
21 make sacrifices and accommodations however she does it.
22 Unless she's got, you know, occasionally there is some
23 husband, and this may be yours, I hope so, Lisa, but it
24 has to take an extraordinary husband for this not to be a
25 terrible, terrible challenge, and I have to think that no 386
1 matter how the husband is it's a big challenge. 0
2 The only advice I would give is you've got to
3 really decide what's most important and at what
4 particular stage of your life and how best to plot this
5 out. You know, a woman has got some talents, you don't
6 want to just, you know, I looked at women that were
7 growing up before me and they ended up, once their
8 children were off in school, they ended up just playing
9 bridge and tennis or whatever. And that didn't seem like
10 a pr..oductiv_e lLfe_, or_ really_ develo_ping what skills you
11 might have. But I've always thought that for the women
12 who really enjoy doing that, and I have many friends that
13 fall in that category, and they don't just do that. They
14 read, and they've been very important for their husbands.
15 Some of the husbands have had tremendous careers and it
16 couldn't have happened without a wife that was really
17 involved, so I don't mean to -- but that's what I'm
18 saying is you have to decide what's most important to you
19 and trying to keep your family together if you have a
20 family. A lot of successful career women don't have a
21 family, but they pay a price there, too, I suspect.
22 There's no just one way to do it, so I just encourage
23 people to try to work out what they can for themselves.
24 MS. BRABBIT: Well, you are such a success
25 story for women, and women see you and what you've u 387
1 accomplished and all the things that you've done, and my
2 question is: Along the way, did you ever have to just
3 let go of something or just say I can't do all things
4 right now?
5 JUDGE MURPHY: Yes, of course. When I
6 first started on the court for example, you know, I had
7 to really apply myself because there was so much to
8 learn. I'm talking about state judge. That was just at
9 the time of the burgeoning, these women's groups, many
10 more different ones than exist now, and it was expected
11 that you show up at all these meetings and that you make
12 food to bring to the meetings and you do all this stuff, 0 13 and I just couldn't do it. I just couldn't do it, and I 14 didn't do it, even though my heart was in it, and that
15 could have gone against me, as far as who they would
16 support and so on, but you just that's one example.
17 And in my family, they turned out beautifully,
18 but there was a troublesome period, and if I would have
19 been there for them, that troublesome period wouldn't
20 have happened. But I just knew, that was when I started
21 to practice in that firm as the first woman there, and I
22 knew I just had to concentrate on that right then. And
23 there's lots of other things with my family where, I
24 mean, you know, there's lots of things that you give up.
25 Like when I had some surgery on, I had basal 388 0 1 cell cancer in my nose recently and I had surgery, so
2 when I went to see the surgeon, we were working out when
3 I could do it, so I had to explain about having a trial,
4 a court week in St. Louis, and also I was going to have
5 this portrait hung in Washington. So for whatever reason
6 she said, well, will your husband go with you to that,
7 that is to Washington. I said, oh, no, he wouldn't go.
8 And she was just so shocked. And, of course, I would
9 like him to go to something like that, or to other things
10 that I do. You know, this wasn't a joint project when I
11 went into this, so you give up, you can't have it just
12 all the way you want. I mean I'm glad to say that I have 13 a going concern as far as my marriage goes, but it's, you 0 14 know, there are things that you have to understand.
15 MS. BRABBIT: Many women entering the
16 profession, and many young lawyers often ask of a women's
17 organization, you know, why the need still, and sometimes
18 women's organizations ask themselves are we still
19 relevant and how can we still fill needs that we need to
20 fill, and your comment early on in this session is, you
21 know, "I had no idea that in 2007 I'd still be the only,"
22 and so your comments highlight the importance of those
23 organizations and those groups.
24 JUDGE MURPHY: Absolutely. And I see my
25 clerks, the women clerks that are around this area, well, 389
(\ 1 one of them did some stuff in women lawyers, but I always
2 encourage them to get involved in these women's groups.
3 It's very important, I think. I've seen what they can
4 do, and I say that, you know, like that time when Sandra
5 O'Connor came and spoke to the Minnesota Women Lawyers.
6 And that was how you and I really got to know each other.
7 Was it? Or was it the Devitt thing maybe was the first
8 thing, yeah, that was like you just came down from
9 heaven. But that O'Connor speech was such a wonderful
10 event, and I don't know that there are many events like
11 that for women anymore, but I'm busy, so there are events
12 that I don't get to. But that was packed, and the 0 13 feeling in that room 14 MS. BRABBIT: Yeah, it was wonderful.
15 JUDGE MURPHY: Which, of course, I didn't
16 experience, since I was having the surgery.
17 MS. BRABBIT: Right.
18 JUDGE MURPHY: But I heard about it
19 afterwards.
20 MS. BRABBIT: And you were present speaking
21 by video.
22 JUDGE MURPHY: Yes.
23 MS. BRABBIT: Which was nice, I know, for
24 Justice O'Connor. But it is a question --
25 JUDGE MURPHY: And, you know, I've already 390 0 1 told you that when I came to from the anesthesia, there
2 were flowers from Justice O'Connor with a very nice note.
3 Because my surgery was the very morning after that
4 speech, you remember.
5 MS. BRABBIT: I do remember the timing,
6 yeah. I didn't know about the flowers though.
7 JUDGE MURPHY: Somewhere I have that note,
8 you know.
9 MS. BRABBIT: Well, it's a question that
10 continues _to be asked, you know, the relevance, but as
11 you pointed out
12 JUDGE MURPHY: Because you were nice 13 enough, you know, I was supposed to introduce her or give 0 14 a statement about her, what she's accomplished, and you
15 were nice enough to let me do it by video since I wasn't
16 going to be able to attend the function because of that
17 surgery.
18 MS. BRABBIT: And there was a group also at
19 Robins Kaplan that helped out with that also. It was a
20 very memorable event, very memorable. I have more
21 questions, Judge, about women in the profession, but I'm
22 going to save some of those for later because they do
23 take us to a little different time frame.
24 (End of session.)
25 () 391
1 (June 26, 2007.)
2 MS. BRABBIT: Judge, thank you for your
3 continuing support with this project. We continue today
4 on June 26, 2007. Today is Tuesday. I open up the floor
5 to you.
6 JUDGE MURPHY: Well, I think one of the
7 things we were talking about last time may have been some
8 of the judges that I've worked with and, of course, that
9 could fill up more time than we have, but I think I was
10 thinking about the orientation that the Federal Judicial
11 Center has for new judges. As you know, I started in
12 February of 1980 as a federal district judge, and what's 0 13 known as the baby judges' school that was next after my 14 start was in June of '80. There were 35 judges in it,
15 five of them women. It's interesting to think what
16 happened. I mean among those 35 judges, one of them was
17 impeached, and people made names for themselves in
18 different ways.
19 Among the women was, in addition to myself,
20 Barbara Rothstein, who is now head of the Federal
21 Judicial Center. She has remained on the district court,
22 she has been chief judge also, out in Seattle. And when
23 I was chair of the Sentencing Commission, when I started
24 that job, Fern Smith was the head of the Federal Judicial
25 Center, and she and I had really enjoyable dinners and 392 0 1 get-togethers. We were dealing with some of the same
2 institutions in Washington, although she was gone a lot
3 on international trips. Barbara succeeded her near the
4 end of the time that I was the chair of the commission,
5 and we got together, too. And she was at my recent
6 portrait unveiling in Washington at the Federal Judiciary
7 Building and, you know, there's a certain bond, having
8 been through all that we've been. She's been a very good
9 judge and, of course, gets around all the time now to the
10 different circuits.
11 There's a lot I could say about that session,
12 but the person that impressed me the most of anybody who 13 was in the faculty was Judge Hu Will, who was a legendary 0 14 figure, federal district judge in Chicago, and had sued
15 the United States three different times, some of that on
16 behalf of federal judge compensation, but a fearless man
17 and very smart, and one of the pioneers in case
18 management. In other words, taking the idea that the
19 judge actively takes control over the docket, which was
20 still very revolutionary in June of 1980. That no matter
21 how complicated the cases are, there's a way to get them
22 moving. You just have to start that process, and he
23 offered that. At the end of that, when I went up and
24 told him how much I appreciated it, he said if you ever
25 have any questions about anything, he said, just call me, 0 393
1 I'd love to talk with you.
2 I don't know if I've told you this before, Lisa,
3 but I'll tell you that gave me so much confidence. I
4 later worked with him very closely, we were
5 co-conspirators in getting the Federal Judges Association
6 organized and developed. But the fact that Hu Will, I
7 could see him as someone who really understood what to do
8 and was bold and decisive in his rulings, and that he had
9 said just call me if you ever have questions, I never
10 needed to call him. Just the inspiration of seeing
11 someone like this was wonderful.
12 And I still have associations with Kevin Forde, 0 13 who didn't clerk for Judge Will, he actually clerked for 14 Judge Campbell in the Northern District of Illinois, but
15 he was a close friend of Judge Will. And Judge Will, a
16 very inspirational figure, got Kevin to volunteer his
17 time as a lawyer for federal judges, as a lawyer bringing
18 some of these lawsuits, and he is the lawyer that stayed
19 on as counsel for the Federal Judges Association. So
20 when I was president of that I relied on his counsel, as
21 the organization has over time. And I know when I went
22 to the last board meeting in May, you know, Kevin and I
23 are the ancient people now. Like in any organization
24 that thrives, that's interesting, we're the old warriors.
25 But, anyway, I have a lot of stories I could 394
1 tell about that session and what it meant, some of the 0
2 people that I met there and who are well-known
3 luminaries, or were for a while in the judiciary, or some
4 who really stumbled and fell, but that's beside the
5 point. I think I wanted to make that connection to
6 Barbara and how, you know, we didn't get into trouble but
7 a couple of the other women hit some difficulties,
8 difficult press and everything, and it wasn't easy being
9 among the first.
10 After some time the Center had fewer of these
11 large sessions to train baby judges but, rather, they
12 would send a group of the new judges with one seasoned 13 judge for a week. And so in the year before I went on 0 14 the Court of Appeals I went to the grand old hotel in
15 Denver with a group of 14 new judges. Actually one of
16 them was a Court of Appeals judge who was there, only
17 came for the sentencing part, the criminal part, but the
18 others were all appointed to the District Court. So I
19 got all of their resumes ahead of time and I looked at
20 them and I thought, boy, is this an impressive group. I
21 mean they went to outstanding schools, they had been at
22 the top of their classes, they had done very impressive
23 things in their careers, really such an impressive group.
24 And I got there and the 14 appeared, and there
25 were three white people in that group, and it was such a 0 395
1 wonderful demonstration of what it means when you had
2 somebody appointing judges who is looking at everybody.
3 And I could tell, you know, ahead of time I expected that
4 one of the women judges was African-American because both
5 where she had gone to undergraduate, she had gone to
6 Howard, and some of the things she was involved in later,
7 but there they were. It was wonderful.
8 MS. BRABBIT: What year was this, Judge?
9 JUDGE MURPHY: Well, it would have been in
10 '93, probably, or early in '94, because I was still on
11 the District Court. And, boy, those judges have done
12 very well. And I think I thought of that because it's 0 13 touching bases, and you don't know who you're really 14 going to be involved with later. Because one of these
15 judges, who has become really an outstanding federal
16 judge, but I could tell then that he was a brilliant guy,
17 Ruben Castillo, who sits on the Northern District of
18 Illinois, turned down an appointment to the 7th Circuit,
19 which I thought was a big mistake, but he did it in favor
20 of a colleague, Ann Williams, and a great appointment.
21 But Ruben, of course, was an appointee to the United
22 States Sentencing Commission, and I had a little role to
23 play in getting him named as one of the vice chairs, and
24 we always had a special tie there, I think. We all had
25 to be sworn in to get started, so I swore in everybody,
\ ___ ) 396 C) 1 and then I asked Ruben to swear me in because we had this
2 previous tie.
3 MS. BRABBIT: Is that the swearing in for
4 the U.S. Sentencing Commission?
5 JUDGE MURPHY: Yes. I mean we could have
6 gone and had -- we had an official swearing-in later at
7 the Supreme Court administered by the Chief Justice, but
8 we had to get started with our work before we could get
9 this fancy thing arranged.
10 MS. BRABBIT: And I know,the U.S.
11 Sentencing Commission was a major piece of your
12 professional life, but before we talk too much about 13 that, can I back you up for a moment and have you talk 0 14 about your involvement in the Federal Judges Association?
15 JUDGE MURPHY: Right, but could I just say
16 one more thing about this group? I mean I could go on
17 and on. Another judge who I maintained a continuing
18 relationship with who was in that group was Judge Paul
19 Friedman, very distinguished judge in the District of
20 Columbia. He had this massive case involving black
21 farmers who had been cheated by the Department of
22 Agriculture, and so it was recognized in this large suit.
23 There is a Monitor under Paul Friedman now that really
24 decides all of the claims. It's a very strange,
25 complicated thing. And Cheryl Heilman, one of my former 0 397
1 clerks, works for the Monitor, runs an office here, she's
2 got quite a few employees, and is writing a lot of these
3 opinions. It's interesting, you know, those ties. Paul
4 Friedman was at, as well as Cheryl, at my portrait
5 unveiling in Washington.
6 Another one of the people, and who was a white,
7 one of the -- well, Paul Friedman is white, so is Frank
8 Hull. And I was just reading a brief today where she
9 was on the District Court for a while and for a long time
10 has be~n on the 11th Circuit, and she's a
11 super-attractive, small blond woman, but her name is
12 Frank Hull. And so I was reading a case today on a
13 petition for rehearing, and they're arguing about this 0 14 case and a decision by Judge Hull, and they go on and 15 say, "he did this and this," and I thought, you know, you
16 should look at the picture book or something.
17 Anyway I will go back from -- I could talk about
18 all those babies from that. The person that came from
19 the 3rd Circuit was Judge McKee, who didn't have a
20 background in sentencing and so on, which was part of the
21 program, and little did I realize that I was going to get
22 involved in the Sentencing Commission the way I did
23 later.
24 Okay, the Federal Judges Association. Judge
25 Will and some other judges had sued the United States 398
1 because of the diminution in salary on the theory that 0 2 this was a violation of Article III, and they had had
3 some success. Anyway, they worked together on several
4 suits. Spencer Williams, who is a judge in the Northern
5 District of California, was one of these, and was aware
6 of the fact that there was a judges' association in
7 California, as there were in some other states, that
8 actually intervened on behalf of judges, certainly on
9 issues of compensation. They developed the idea that
10 there should be a.federal judges' association so they
11 sent out a mailing. I was familiar with what a judges'
12 association had done here in Minnesota, and I was
13 familiar with the National Association of Women Judges, 14 which had already been formed and which I joined, and I 0 15 thought, well, this makes sense. You know, judges need
16 to be able to stand up for themselves about issues that
17 are of a concern to them, and so I sent off my money and
18 I joined.
19 Almost immediately thereafter the then Chief
20 Justice of the United States, Warren Burger, wrote a
21 letter to every federal judge in the country saying that
22 this organization was started and it was a terrible thing
23 and it was going to interfere with the judiciary's
24 relationship with Congress, and he implored no judge to
25 join this organization, and it was cc'd to Spencer 0 399
1 Williams but sent to the wrong address, which was very
2 strange, because he never got his letter. Instead of
3 sending it to his chambers in his duty situs in San
4 Francisco, it was sent to Las Vegas, I think, where he
5 might have sat once or something. So he never, ever
6 received his letter.
7 And my children, when I told them about it, my
8 sons, I told them about this and they said, "oh, Mother,
9 you should quit," because I was a new judge, you know. I
10 said, no, what kind of chicken-livered person would it be
11 if you thought that there was value in this organization
12 and that it was legitimate, why would you not stick with
13 it. Well, then most people shied away from the
() 14 organization and many people withdrew who had joined at
15 the beginning. So there was, in 1981, a big educational
16 seminar on antitrust, and in those days that was the
17 heyday of antitrust. There were many, many antitrust
18 cases in the courts, and they were huge and they stuck
19 there for years and they had 30 parties or more, and
20 judges were worried about them. And so it seemed like
21 the whole, certainly all the federal district judges in
22 the country were at this seminar, it was at Ann Arbor at
23 the University of Michigan Law School. Phillip Areeda,
24 who was then the master of antitrust, I think he was a
25 professor at Harvard, was the speaker. He presided over 400
1 the seminar which lasted several days.
2 So we tried to have a little meeting outside of
3 the seminar, and there were quite a lot of people that
4 came, but it was very strange because we were regarded
5 like daring revolutionaries. It was really very
6 interesting. We had a meeting, and Spencer Williams had
7 a van, an RV he and his wife had driven from California,
8 and we had a meeting in the RV. You know, we were such
9 endangered people, you know, and a couple of the people
10 who had or_iginally _joine.d_ but. no longer wanted to be seen
11 with us came to the RV in stealth. There was a cocktail
12 session for everybody at the seminar and everybody came
13 up and they said they couldn't get over how courageous we 14 were and so on. Well, that was what it was like in the CJ 15 early days.
16 But we persevered, and the Chief Justice turned
17 around when he saw how effective judges could be.
18 Because after all, most of the judges were well-connected
19 with members of Congress, especially in the Senate,
20 because that's how they got to their jobs, and were able
21 to talk individually with key people. And by the time
22 Justice Rehnquist became Chief Justice, at the first
23 meeting he got up on a chair -- and if you know Justice
24 Rehnquist, that was more of a marvel after I got to know
25 him well later -- to say what a wonderful organization it
() 401
(\ 1 was. Now he was always concerned about pay and, of
2 course, that had been one of the major reasons that the
3 thing was formed, but it really is for, you know, the
4 purpose is for assuring the independence of the federal
5 judiciary, and there are other ways that the association
6 has been active beyond just the compensation issue.
7 So Spencer was like the Pied Piper. He had a
8 lot of courage because he would get up there and talk,
9 and I would say sometimes, my goodness, how are we going
10 to defend a particular point. He was a good talker. And
11 th~n I got put in the position where I had to be doing
12 it, and you come up with something. Sometimes it's hard
13 though. It's like being a lawyer, you know, on anything. 0 14 So he got me to be the first membership chair of the 15 organization, and that wasn't easy because, first of all,
16 you had to pay 200 bucks, and judges are really tight.
17 Of course, they defend that because their compensation is
18 so low. But, you know, it may have been only 180 at the
19 beginning, but it's been 200 for many, many years, so I
20 can't really ...
21 Anyway, you know, that was not easy with this
22 background, but it really got built up while I had that
23 job. And then when Bob Hall, who was the second
24 president, he wanted me to set up a system so that there
25 would be a judge contact for every member of Congress. I 402
1 thought membership was hard, but that was really tough to C> 2 organize. But I managed it in the way you do everything;
3 I divided up the country and got people in each area to
4 agree to get people and, you know, some people follow
5 through and do a good job and others don't. But I had a
6 roster with a name for each member, and some of those
7 contacts were better than others, as you might imagine.
8 But that worked out to be extremely invaluable by the
9 time I was president. We got the only pay raise that has
10 been a real pa~_raise in 1989; otherwise, we have been
11 lucky to get cost-of-living increases sometimes.
12 At that time we had that setup, and it was
13 invaluable because you didn't, .you learned things. So 14 there I was as a district judge trying cases and getting 0 15 calls from all over the country from judges because they
16 were really worried about pay, just like they are now,
17 and at that time the Administrative Office had not yet
18 developed a system, they had some judges at the top who
19 were working with the head of the AO but they didn't have
20 this kind of match. So when our people would contact
21 their member and say what the judges were concerned
22 about, the member would say, well, you know, there's this
23 problem and that problem, or you should contact Senator X
24 and this is what you should tell Senator X or, you know,
25 it's getting held up in the House, and you would get 0 403
1 intelligence that you could then turn around and use.
2 So this was called the Network, and they claim
3 they still have the network now, but it doesn't exist in
4 the same way. It's so much work trying to get it to a
5 complete match and, of course, it's going to change all
6 the time as members shift.
7 I had two great challenges when I was president,
8 I was the third president. First of all, Bob Hall, the
9 previous president, disappeared immediately, his health
10 deteriorated so sharply, and it wasn't clear at first
11 what it was, but it was Lou Gehrig's disease, and so he
12 died. He was a man of great, great wisdom, and he had
13 been involved in a lot of organizations. It was so (~ u 14 daunting when he asked me to do that, it seemed 15 impossible, but it was an important concept, you know,
16 that in order to be we can't just write letters that
17 are going around to everybody, that's not going to have
18 any impact. And then the two big challenges for me were
19 to get the pay raise, and we worked really hard on that.
20 And because of these contacts, we discovered that we
21 weren't going to get a pay raise unless it could get tied
22 to something that had some sex appeal from the standpoint
23 of telling the voters, you know, the members' concern,
24 and the judges would have to look like they were giving
25 up something. So it was originally called the Judicial 404
() 1 Pay and Ethics Reform Act, but now it's only called the "--,
2 Ethics Reform Act. Congress is able to call things what
3 it wants. And as part of the so-called ethics reform,
4 there were some limitations put on what judges could earn
5 as outside income. There were a few judges who were
6 making $35,000 a year outside, and this is back in the
7 '80s, for teaching one course and so on. And then there
8 was this perception that there were these senior juges
9 who were on the payroll, you know, that weren't doing
10 anything. So there were several judges that I could
11 name, there were three judges who were really impacted by
12 this limitation on the outside income, and they were
13 calling me all the time. They were mad, you know, but 14 you had to look at the good of the whole. 0 15 And then some restrictions on senior judges,
16 their ability to get the increases, but that was minor.
17 The fact that you need to have like a quarter -- I mean
18 their salary is guaranteed for life but you don't get
19 special increases. I'm not talking about cost-of-living
20 but if there were a pay raise, unless you're meeting a
21 certain amount of work, but it's quite modest if you go
22 down to the But it was a way to be able to assure
23 members of Congress and the public that, you know, you're
24 getting your money's worth from these judges. And you
25 would know, because you're closer to the system, senior u 405
1 judges are invaluable. If it weren't for them, there
2 would have to be many more judgeships created, and
3 they're very efficient because they have worked in the
4 system and they understand the law and so on and so
5 forth.
6 And then the other one was the -- I mean there
7 were a lot of challenges, but the other one was Senator
8 Biden's Civil Justice Reform Act that in its first form
9 put impossible demands on the judiciary. Magistrate
10 judges weren't going to be able to be used for pretrial
11 conferences, and I won't go into the details of it all.
12 In addition to that, of course, there were other things
13 that you were trying to do. We established an office in 0 14 Chicago. We always had had a Washington representative 15 who could help in communications with Congress but we
16 didn't have any place that did secretarial work. It just
17 operated out of, we had to do it ourselves. And we
18 started a newsletter, which still exists, and we set up
19 some planning things to get the organization to broaden
20 its scope.
21 I'd have to go back and think about all that we
22 did, but it was a real busy two years. And they wanted
23 me to continue but, you know, any organization has got to
24 have, keep on bringing new leaders in.
25 MS. BRABBIT: Okay, Judge, right before the 406
1 tape cut off I believe you had mentioned Betty Fletcher.
2 JUDGE MURPHY: Yes. Betty had been a
3 member from the beginning and most, you know, they all,
4 the organization was, especially at the beginning, had
5 been populated more heavily by district judges and, of
6 course, they might say they're the gutsiest types, but
7 Betty was aboard from the beginning. I think partly
8 because out on the West Coast she was familiar also with
9 judges' associations and didn't think it -- so many of
10 the judges thought it was unseemly for judges to be
11 involved in this. I mentioned they didn't like paying
12 the dues, but it was also unseemly.
13 And, in fact, the Chief Judge of the 8th Circuit 14 at the time, Judge Lay, this is quite surprising, 0 15 considering that he was, in his mind, a great liberal and
16 a supporter of unions and so forth, he said at a meeting
17 of the judges in a judicial conference of our circuit,
18 this is a terrible idea, this organization, and he
19 implored many of the -- he asked if any of the judges
20 belonged. Only a couple of us raised our hands. There
21 weren't many that belonged but there were some that
22 belonged who didn't raise their hand. And he said, "It's
23 terrible, and I implore all the judges not to join this,
24 it's nothing but a labor union."
25 MS. BRABBIT: The group, Judge, under your
() 407
~' ' ! 1 leadership, was incredibly effective, particularly in
2 light of the backdrop that you have just painted for us.
3 What did you see in terms of membership and support
4 post-pay raise and post-Senator Eiden issues and other
5 important issues that you and your leadership team
6 tackled?
7 JUDGE MURPHY: Well, one of the things
8 that's been very important, very critical in the
9 subsequent stability of the organization was finally
10 persuading the Administrative Office to let judges deduct
11 from their paychecks, rather than have to pay a check
12 annually. Because once they agree to that, it's
13 automatic. At first the Administrative Office was
14 opposed to that, but as it began to see the value added
15 by the organization, they agreed to that. And we wanted
16 to get that from the beginning, but it wasn't
17 accomplished until after my presidency, and that was a
18 very, very significant thing. The Administrative Office,
19 instead of viewing the organization as an upstart,
20 though, and I think this was in large part a reaction to
21 how well we had worked in getting the Ethics Reform Act
22 through in 1989, instead of viewing us as an opponent,
23 came to and actually I developed a very good working
24 relationship with Ralph Mecham during that period. We
25 talked frequently on the telephone, shared information, 408
1 and so we became working partners. But the fact remains
2 is that the AO has more staff, the judges' association
3 has one representative, and now, of course, it's a
4 wonderful, serendipitous fact that our former
5 representative, Jim Duff, is now the head of the AO, so
6 it's really grown together now. And Jim Duff, I worked
7 with quite extensively when he was administrative
8 assistant to Chief Justice Rehnquist and I was chair of
9 the Sentencing Commission, and he's a great guy to work
10 with. He's .going to be a.real big success at the AO.
11 MS. BRABBIT: What's the current membership
12 of the Federal Judges Association?
13 JUDGE MURPHY: I can't tell you, but it's 14 the vast majority of the judiciary. There are always 0 15 some that aren't going to, you know, the outliers. What
16 actually turned the trick, as far as Chief Justice Burger
17 went, was the work that the FJA did on the bankruptcy
18 reform bill.
19 MS. BRABBIT: And what was that, Judge?
20 JUDGE MURPHY: Well, I'd rather not get
21 into the details of it right now, but it was very
22 important for us to be able to show that he now was in
23 support. So as membership chairman I got a friend here
24 in Minneapolis to design a brochure, she's very good at
25 design, and on the cover of it was one picture, and it 0 409
1 was a picture of Chief Justice Burger in a friendly
2 handshake at an FJA function. The picture just shows him
3 shaking hands with Judge Spencer Williams in a very
4 cordial pose, and that was like in an oval on the front.
5 It was a longitudinal, you know, with the eight-by-ten
6 folded like this. It was so attractive.
7 MS. BRABBIT: Tri-fold?
8 JUDGE MURPHY: Yes, and then it had this
9 oval on the front, about a third down, you know, and then
10 the blank space below, and it was a terrific brochure.
11 Of course, it had how you could pay your dues
12 instructions on it.
13 MS. BRABBIT: It's a wonderful visual. 0 14 JUDGE MURPHY: And he attended that 15 function because it was after this bankruptcy bill, the
16 part that he didn't like had been eliminated.
17 MS. BRABBIT: Very nice work. Your
18 accomplishments are tremendous and awesome. They are
19 particularly inspiring in light of a long list of
20 distinguished board work specifically around that time as
21 well, so not only are you advancing the ball great
22 lengths for the FJA in launching its leadership, its
23 presence in the federal judiciary, that's not the only
24 ball that you're carrying at that time.
25 JUDGE MURPHY: Right. I was chair of the 410
1 board of the American Judicature Society for one thing. ()
2 MS. BRABBIT: Can you tell us about that
3 experience?
4 JUDGE MURPHY: Well, I was on the board of
5 the AJS for a long time. It's a wonderful organization.
6 I wish I had time to, it's one of those things you would
7 like to stay involved in forever. But if you take on new
8 things you can't keep up with everything else. One of
9 the ironic things, I mentioned this, the Biden bill, the
10 .Civil Justice Reform Act. The president, while I was
11 chair of the board, was a lawyer who was a big proponent
12 of the Civil Justice Reform Act. The staff director
13 implored me to, he wrote an opinion piece for the
14 magazine Judicature, pro Civil Justice Reform Act, and ()
15 she inveigled me to write the con. It wasn't a complete
16 con, but it was about some of the concerns.
17 MS. BRABBIT: Did you do it?
18 JUDGE MURPHY: Oh, yes, I'm just thinking
19 about it. I wrote other things for Judicature on legal
20 issues, partic~pated in a lot of the panels and so on.
21 Of course, as chair of the board you have a lot of other
22 responsibilities for any meetings. It was sort of a
23 division in a strange way between the president and the
24 chair of the board, although the president was busy with
25 other things. He was in-house counsel with Xerox, and he 0 411
1 was missing many times from the meetings so I would do
2 both. I'm vaguely remembering this, after not thinking
3 about it for so long, but there were certain meetings
4 that the chair presided at and there were certain
5 meetings that the president ran, but I did both of them
6 for a lot of the time.
7 But it's a wonderful organization because it's
8 truly concerned with many of the same issues as the
9 Federal Judges Association, like judicial independence
10 and a high quality of justice, selection of judges,
11 having concern about juries and their effective
12 management, all kinds of things. But it's a very large
13 board because every state is represented. Some states 0 14 have multiple members on it. It always has very 15 interesting meetings on timely topics and this wonderful
16 magazine, Judicature. Like every organization that's a
17 nonprofit, it has to worry about where the money is
18 coming from. Obviously I couldn't be involved in
19 fundraising, but a lot of the money came from grants, and
20 they tracked where the money was at the time. When there
21 was LEAA funding, federal funding for things related to
22 crime, they had a lot of projects on that.
23 At the time I was chair there was a lot of money
24 from the State Justice Institute funded by Congress, so
25 it had to be projects related to the state courts, unless 412
1 there were, you know, things that appealed to private
2 donors or to foundations that had other concerns. So
3 part of what you needed to do was be thinking about
4 topics that would be of interest, but also what timely
5 topics needed to be addressed, whether you were in your
6 meetings, your board meetings, or in meetings that were
7 held for the public, symposia, or what should be
8 addressed in Judicature, and they do wonderful work on
9 judicial conduct, they have a judicial conduct reporter.
10 It's a terrif~c organization, and it has always
11 attracted the most wonderful people, so leading lawyers
12 from all over the country, leading professors, whether
13 from political science or from the law, leading judges. 14 It's just wonderful. 0 15 MS. BRABBIT: You're still a member,
16 correct?
17 JUDGE MURPHY: Oh, sure.
18 MS. BRABBIT: Tell us, Judge, about some of
19 the other boards or organizations. You served on the
20 board from 1986 to 2000 for the United Way Minneapolis
21 Area, and you chaired that from 1997 to '98.
22 JUDGE MURPHY: You know, it's funny,
23 because when I was state judge my colleague, Sue
24 Sedgwick, who was the first woman on the Hennepin
25 Municipal Court and the first woman on the Hennepin 0 413
1 County District Court -- Judge Betty Washburn had been a
2 municipal judge earlier -- but Sue was a real trail
3 blazer, and she had arrived at her judgeship by running
4 against a sitting judge. She had a lot of guts. She had
5 been a lifeguard in her younger days, and that's sort of
6 like what she was. She was a very vibrant person. She
7 was chair of the board of the United Way and, you know,
8 I, like a lot of other people, thought that that was, how
9 could a judge be doing that, because you think of the
10 United Way as raising the money. But as I got to learn
11 later and, of course, it's just like any other
12 organization, you've got to run the organization, and
13 there's lots more to it than the fundraising. 0 14 I'm sure she, like the way I did it, was never 15 involved in the fundraising component. But I got
16 involved, was asked to go on the board. Luella Goldberg
17 called me up. She's another person that, she and I have
18 touched each other's lives in so many ways. She's quite
19 a leader in Minnesota and beyond. She's been acting
20 president of her alma mater, Wellesley, she's been --
21 we've been on many boards together. Anyway, she happened
22 to call me. She at that time was on the board of the
23 United Way and she really talked me into it. It wasn't a
24 board that I would -- I had done work, when I was a
25 lawyer I had run the campaign for the United Way in my 414
1 law firm, and then the following year I had been involved
2 in soliciting lawyers beyond, you know, other law firms
3 .and so forth, but then when I was in the judiciary I
4 wasn~t involved in it at all. But Luella told me it's
5 really important because you learn about all the problems
6 that are going on in the community and what needs to be
7 done. You make decisions about what needs to be
8 addressed the most and so forth. Anyway, I went on the
9 board.
10 It_sounded very much like what I had been doing
11 earlier, you know, when I was on the board of the Urban
12 Coalition and the League of Women Voters. And, sure
13 enough, there were many people still involved in the 14 community. Just now I've been involved in, Tom Johnson, 0 15 who is head of the Council on Crime and Justice, wanted
16 me and Ron James to oversee this community involvement on
17 some aspect of this thing they were doing, and Ron and I
18 were supposed to lead this group of people. And, sure
19 enough, there were some of the same people that, you
20 know, they're still surviving, just like me.
21 Anyway, I went on the board and got involved in
22 a lot of different projects. I was treasurer of the
23 organization, I chaired the audit committee, I became
24 head of the, oh, what was it called now. There are two
25 main divisions; one is the fundraising part, and then one 415
1 is the community part, which is composed of, I would say,
2 two parts. One is finding out what the needs are in the
3 community from the community, and then going into the
4 community and assessing how well the funds are being
5 expended that you have divided, and it's also dividing
6 the funds. It's three parts; dividing the funds, where
7 they should be allocated, what priorities you should be
8 having, whether you need to reorganize the way you're
9 doing things. That was all the good stuff, and I was
10 head of that. I was involved in it before I became head
11 of it, of course, and then I was the vice chair and then
12 the chair, and then I was the past chair. I would maybe
13 still be on the board, because I was asked to be on the 0 14 board when they combined -- this was the United Way of 15 the Minneapolis Area, which involved a number of
16 counties. But then when they combined with Ramsey
17 County, they had, they couldn't have all the board
18 members on there, they were going to have a smaller
19 board, and I was asked to go on that, but it was at the
20 time that I had gone on the Sentencing Commission, the
21 chair of that, and I couldn't do it, so I bowed out of
22 that. Otherwise I would probably still be in it because
23 it's such important work.
24 MS. BRABBIT: So you served as past chair
25 up until '99? 416
1 JUDGE MURPHY: I would have to look at
2 that. But I was still on the board and quit because
3 of --
4 MS. BRABBIT: The Sentencing Commission?
5 JUDGE MURPHY: Yes. I think maybe they
6 were constituting the new board right at that time, you
7 know, with the votes, and Jim Colville came to see me
8 and, you know, wanted me to do it, and I was really
9 pleased to be wanted, that's always nice, particularly
10 when they were facing these new challenges and certainly
11 could only pick some people from both of the boards or
12 from all of these communities.
13 MS. BRABBIT: Another overlapping,
14 distinguished commitment is the Bush Foundation. Tell us
15 about that.
16 JUDGE MURPHY: Well, I went on that board
17 in 1982. Yeah, it's very much overlapping as we're
18 talking about United Way agencies and so on, and I went
19 off that board about a year ago. I held lots of jobs
20 there. I was chair for five years, first woman to be
21 chair. Well, the first thing you think about when you're
22 a member of that foundation is the wonderful opportunity
23 to make grants on the basis of their worth and not have
24 to worry about the source of the funds because, you know,
25 I was chair of the Hennepin County Bar Foundation, too, 0 417
1 for example, but there, you know, you're only going to
2 have as much money as the lawyers contribute; subsequent
3 to my time there they've had fundraisers and stuff. So
4 the money was there at Bush because it had been left in
5 this legacy, and the two aspects were governance and
6 choosing the grant areas and the individual grants, and
7 you learned so much about very excellent staff under
8 Humphrey Doermann. They wrote outstanding reviews and
9 analyses of the grant applications, and so you, with
10 quite a sterling group of people, it was a small board of
11 15, were deciding on where to allocate the funds. A
12 great privilege.
13 When Humphrey retired we were looking for a 0 14 successor. Some people came in and interviewed and we 15 had talked before to Anita Pampusch about, a board
16 member, whether she would want to consider it, and she
17 sort of thought about it and she said no. And after we
18 interviewed some of these people, she was on the search
1 9 co mm i t t e e , I tu r n e d a round and I s a i d , " An i t a , a r e you
20 sure you don't want to do this?" And she thought about
21 it, I think like overnight, and she decided she would be
22 a candidate and, of course, we selected her and she's
23 been outstanding. She's just going to retire now.
24 But she was really good at being able to move
25 the foundation from a very strong prior executive 418
1 director in some new ways without making him feel that it 0 2 was negative as far as what he had done. He was a
3 wonderful, wonderful leader, and she actually is
4 revolution~ry, what some of-the changes were.
5 I quickly perceived in that foundation, I mean
6 it's true everywhere, but it's especially true there that
7 each board pick was going to make a big difference about
8 what kinds of grants you could give. At the beginning it
9 was pretty much a corporate kind of board, and typically
10 those leaders at that time were not that interested in
11 some of the social kinds of things. As the board changed
12 and as we got more diversity and women, well, it's
13 changed in ways that I never foresaw, too. Maybe I 14 wouldn't have liked each of them. You know, it's funny, 0 15 what you might set in motion, because that was a big
16 priority of mine, to search for diversity on the board.
17 I was the head of that committee before I was board chair
18 and, you know, with Humphrey, and, recognizing what I had
19 done on the foundation at the time I left, thought that
20 was one of the major contributions I had made.
21 In my own view, one of my major things was I'm
22 very interested in American Indians and also projects
23 relating to women and girls. The first big thing we
24 decided was we would get into -- because the tradition
25 there was to support educational, especially to support 0 419
1 educational things, and they had done wonderful work with
2 the United Negro College Fund and partnering those
3 institutions. So the easiest way to get into something I
4 discovered, my observation, was to have an education
5 project. So I talked with one of the staff who had done
6 some of these Indian grant proposals that had come in,
7 and we developed this Native American, you know, the
8 tribal colleges, and that's been very good, because the
9 Bush Foundation has supported those in every which way,
10 just starting in and getting them libraries and
11 supporting them in many ways.
12 When I was chair of the grants committee I
13 wanted an outside consultant, who was an Indian, Michael 0 14 Dorris, he's a noted Indian author whose wife, Louise 15 Erdrich you might know of, very famous novelist, to come
16 and consult with us, and that was one of the best
17 meetings we ever had of that grants committee in my view.
18 But until then they were really just looking at this
19 grant or that grant, depending on what came over the
20 transom, except for the area of the colleges, certain
21 kinds of grants to colleges and universities, and then,
22 of course, the relationship with the black colleges.
23 MS. BRABBIT: Sounds like you enjoyed that
24 work very much.
25 JUDGE MURPHY: Oh, I did, it was great, and 420
1 there were a lot of wonderful people. I hated to lose () 2 contact with some of the new ones. And at my, you know,
3 the recognition dinner when I left, one of the new ones
4 who I admire so much, he's an artist from West Virginia
5 and so involved in things that most of us are not, he got
6 up to speak, and I was really surprised because the other
7 speakers were people that had been there when I was more
8 involved. And I thought, well, what is he going to say.
9 And he said some stuff about what he observed in our
10 joint tenure, but .. then he pulled out something from his
11 pocket and he said, you know, for me this was very
12 exciting to be on this board because I want to read
13 something that I have carried in my wallet since, I don't
14 know, maybe it was '85 when this decision came out, and
15 it was a paragraph from a decision that I had written on,
16 you know, I had the case involving the "In the Spirit of
17 Crazy Horse," this book written by Peter Matthiessen --
18 have I told you about this?
19 MS. BRABBIT: No, but I know the decision.
20 JUDGE MURPHY: It would have been such a
21 fascinating trial. You would have had Wounded Knee, all
22 the witnesses from Wounded Knee and all the witnesses
23 from those murders of the FBI agents on the reservation.
24 It would have been absolutely fascinating. But I did the
25 right thing under the First Amendment and granted summary u 421
(\ J 1 judgment. And that book, I think maybe I've talked to
2 you about this, that book had been suppressed because
3 when these lawsuits were filed, Viking Penguin had pulled
4 the book back, because they had these libel suits, to
5 limit its damages. And when it was reissued after my
6 decision they had a, the author had a forward saying that
7 I had freed the book. It was really nice, because I
8 admire that author very much.
9 But, anyway, he read a paragraph from my
10 decision, and I would have to get the decision out to
11 read the paragraph, but it was something about a book,
12 how what you expect in a book is different opinions. And
13 I asked him then, did you really? It was a big First 0 14 Amendment -- 15 MS. BRABBIT: Okay, Judge, you ended the
16 last tape, we had to switch tapes here for a moment, the
17 last tape where you mentioned that you had actually asked
18 him if he carried that.
19 JUDGE MURPHY: I said did you really, you
20 know, afterwards. I can't believe it. And he said
21 absolutely.
22 MS. BRABBIT: You were such an inspiration
23 to him, as you are to many. And that was at the Bush
24 Foundation recognition dinner?
25 JUDGE MURPHY: Yes. 422
1 MS. BRABBIT: Okay. Very, very nice. You
2 mentioned also the Hennepin County Bar
3 JUDGE MURPHY: Bush gave me a great
4 present.
5 MS. BRABBIT: I'd love to hear this.
6 JUDGE MURPHY: They always give, you know,
7 a little token, and they really had, they got just the
8 perfect thing. I've had it on my dining room table ever
9 since, even though I should put it away. There's a
10 wonder£ul potter.at St. John's Unive.rsity, Richard
11 Bresnahan, and they went up there, actually went up there
12 to pick out a pot. And the person that was doing it went
13 all through everything that was set out and said, I just 14 don't think I've seen the right thing, and then they 0 15 happened to say it was for me. And the sculptor said,
16 oh, I've got something in the back, I know just what she
17 likes. And he went in the back and he brought out this
18 teapot.
19 And when he does his pots, he went and trained
20 under a Living Treasure in Japan. You know, Japan
21 designates the top artists, writers as Living Treasures,
22 and this was the potter. He trained under him, and his
23 story about that is so wonderful, because the first
24 thing, it was up in the mountains somewhere, and the
25 first thing in the morning this fellow, the Living 423
I~ 1 Treasure, would do is go out and look around and decide
2 what kind of day it was, you know. And he had special
3 kinds of glazes and everything, and then he wraps each
4 pot with a cloth, sort of a rough linen, you know,
5 natural cloth with some Japanese characters on it. So
6 it's sitting on the cloth with the cloth rolled over part
7 of it. And it was such a nice thing because they knew my
8 connection with St. John's.
9 MS. BRABBIT: What a lovely, thoughtful
10 gift.
11 JUDGE MURPHY: Yes, it was.
12 MS. BRABBIT: And you still have it on your
13 dining room table? 0 14 JUDGE MURPHY: Yes. I never made tea in 15 it. Just look at it.
16 MS. BRABBIT: An aesthetic treasure. Very,
17 very nice. Lots of additional board work, Judge. You've
18 already mentioned Hennepin County Bar Foundation. You
19 were on the Board of Governors for the Minnesota State
20 Bar Association early.
21 JUDGE MURPHY: I learned a lot there, from
22 the Bar Association, Hennepin County Board of Governors,
23 it may have been called something different, but it was
24 the same thing, and then the State. I learned so much
25 because you learn, you meet lawyers from all different 424
1 practice areas, geographically as well as subject matter, 0 2 and I learned a lot that way, and the kinds of interests
3 and concerns that they had. And then, of course, the
4 organized bar has concerns of its own and, you know,
5 there again, governance issues and so on.
6 Actually I met a lot of people there that I'm
7 sure helped me win support within the legal community for
8 my judge positions in the beginning, I mean, after they
9 get used to you.
10 MS. BRABBIT: The Minnesota Bicentennial
11 Commission?
12 JUDGE MURPHY: Yes. That was sort of a
13 fiasco, that commission itself. You know, I was on that 14 other commission, I don't know if I told you about the u 15 Minnesota Constitutional Study Commission, and that had
16 been a wonderful committee and very active and so on.
17 This commission never really got engaged. We had some
18 meetings but they were rather perfunctory. But the
19 reason I was on that was that the Federal Court was
20 invited to have a representative and the then Chief Judge
21 of the Federal District Court, Judge Alsop, asked me to
22 be in charge of a bicentennial program for the District
23 Court, and therefore, I was the representative on this
24 state commission. Oh, we got so much done for the
25 Federal District Court because actually he asked me to be 0 425
1 co-chair with a lawyer named Dwayne Krohnke, who was a
2 partner of Faegre & Benson, and so he and I put our heads
3 together, and we also asked other judges if they had
4 people that they wanted to suggest for the group. We got
5 a big group, including Harold Stassen, who was suggested
6 by Judge Magnuson. At the time Harold Stassen was really
7 old. He walked in and he looked like he was on his last
8 legs, but he had some wonderful suggestions. He made a
9 big difference on that group. You never know, you know,
10 until you really get the group going.
11 Anyway, the judges and lawyers, and there were a
12 couple academic-types, too, and so we decided we would do
13 a history of the Federal District Court, we would have a 0 14 book, we would do oral interviews with all of the judges 15 and we would do a composite video, an hour long, that
16 would be production, you know, professional value, and
17 that would have -- I think I told you about this before.
18 We got the law professors to be the inquirers, and that
19 was very successful. We also had a suggestion about who
20 to write this history, and some of the lawyers on the
21 committee had raised a little money for the project, so
22 this person was given a thousand or two thousand dollars,
23 I don't remember, which would seem like nothing now but
24 was something then, but we never saw a page.
25 You know, in other work, I remember when I was 426
1 president of the League of Women Voters I had somebody
2 that was in charge of a study that just was never getting
3 it done. You have it everywhere you go, it's not unknown
4 to the world of judges, what you do when something just
5 doesn't get done. So it was clear I had to move to plan
6 B, and so we decided that, this person had started out
7 and, you know, they did have sort of a draft, but it was
8 like the history of the judiciary in Minnesota and
9 nothing to do really with the federal court. And so we
10 went back to the judges and-Bsked them for their ideas of
11 what were some of the leading cases, and we decided we
12 would do biographies of the judges and then we would have
13 write-ups on some of the main cases, ten cases we would
14 pick out. Also we would do something, go back over the () 15 docket sheets and stuff, something about the way cases
16 had changed over time, as much as we could without having
17 to go to the archives.
18 And what do you do but you turn to your law
19 clerk, you know, and so Margaret Chutich, did she do a
20 great job in pulling this together, and she wrote one of
21 the cases, little short case things, and we had the
22 pictures. It was very attractive, very attractive. I
23 don't know that any are in print anymore, but they used
24 to give it out.
25 And then we had several dinners, two of which we 0 427
1 got Justice Blackmun to come speak at, and he was
2 wonderfully inspiring about the history of the court and
3 what it meant. One time, and I maybe talked to you about
4 this before, I probably did. Who would think that this
5 would be a good thing to do, just to list the names of
6 the people who had served on the Federal District Court.
7 At that time there weren't that many really, and he said,
8 "Judge X," pause, quite a long pause, then he would say
9 the next name, and you just -- it was a wonderful way of,
10 this was a significant person that affected many people's
11 lives, you know, just by saying the name and in the
12 cadence and with the spacing that he did. And we invited
13 some leading members of the bar and stuff. Those were 0 14 fun. 15 We also had some seminars that we put on. We
16 did one on the First Amendment and we got -- oh, I can't
17 think of his name right now, a leading professor, he was
18 a dean at Berkeley at that time, especially on the
19 religion clauses. And he came, and we had somebody with
20 the other point of view, and we did it over at that big
21 hall at St. Catherine's and invited people from all over.
22 We didn't have this courthouse at the time, of course.
23 We did some other things, too, but I can't remember what
24 the other things were right offhand.
25 MS. BRABBIT: Was it Bob Stein that took 428
1 your oral history?
2 JUDGE MURPHY: He did mine, yes.
3 MS. BRABBIT: As part of the bicentennial
4 project?
5 JUDGE MURPHY: Um-hum. I probably told you
6 he was my teacher. I had a course from him. He doesn't
7 look much different now. It's sort of disgusting really,
8 how good he looks, back in Minnesota now after ...
9 There's probably some other stuff we did, but
10 this was pretty amazing for a judge to have taken -- I
11 mean this was a lot of work.
12 MS. BRABBIT: As stand-alone, these are all
13 a tremendous amount of work, and then most notable is 14 when you put the puzzle pieces together and you see how 0 15 the Venn diagrams overlap, and it's just amazing.
16 JUDGE MURPHY: Well, the co-chair and I had
17 some, I didn't really know him before, and he's a little
18 formal, and we had never disagreements, but my style was
19 a lot more open and comfortable with a lot of the
20 disagreement and so forth. Just recently I had been at,
21 to get my driver's license renewed a few months ago, and
22 I was on my way home and I saw there was a Target store
23 there and I thought I could get something for my
24 granddaughter. I went in, I had never been in that
25 Target store before or after, it was in the middle of the 0 429
1 day, it was in the morning because I went out to AAA in
2 the morning, and I hear, "Judge," you know, and I look up
3 and there's Dwayne Krohnke, who meanwhile is retired.
4 And he was so glad to see me, he was so cordial and
5 everything. It was really nice because we had you
6 know, sometimes I get some of the stuff we did in
7 connection with the opening of this courthouse, you know,
8 I start to go off on that but, no, this was all related
9 to the history project. I know we did something else,
10 too, but it doesn't matter.
11 MS. BRABBIT: The Minnesota Opera,
12 Director.
13 JUDGE MURPHY: That's much more current. 0 14 MS. BRABBIT: 1998? 15 JUDGE MURPHY: There's not much to say
16 about that. I mean it's a fun, fun thing, but given the
17 challenge of putting on five operas a year in a community
18 of this size, really good quality, the most important
19 thing for the opera is money, and so each of the
20 directors is really squeezed for money and also squeezed
21 to be doing this and that to raise money, plus the
22 meetings are almost always during court week. One year
23 they said, well, would you give us your court week dates
24 and then we'll have the meetings at another time. So I
25 sent in the dates and they still were within the court
/ ) \____,/ 430
1 week. Well, you know, they can't decide it around one 0 2 person, So it's been a little bit frustrating in that
3 way, but it's wonderful what they do, and fun. I mean if
4 I had more time, you know, because you can go over there
5 and go to the rehearsals and see it before they even get
6 to the dress rehearsal as they're starting to, when
7 they're doing the Sitz Probes and stuff. It's wonderful.
8 And you go to the board meeting, when I'm able to make
9 it, and they start out with somebody singing an aria. I
10 mean it's a fun board .. And there's a lot of social stuff
11 that's connected with it, too, but I don't have time for
12 a lot of it.
13 MS. BRABBIT: I'm going to go down the list 14 here, Judge, and you comment as you think is appropriate. 0 15 JUDGE MURPHY: I think it's probably time
16 to stop.
17 MS. BRABBIT: Okay, we'll do that.
18 (End of session.)
19
20
21
22
23
24
25 431
1 (July 3, 2 0 0 7 . )
2 MS. BRABBIT: Today's date is July 3rd,
3 2007, and this is the continuation of the taping of the
4 Honorable Diana Murphy.
5 JUDGE MURPHY: Well, as a district judge, I
6 got very interested in the use of expert witnesses in
7 areas of scientific inquiry, or very specialized areas
8 people wouldn't necessarily be very familiar with. It's
9 a combination of trying to understand, whether it's the
10 judge or the jury, it's the fact finder, the issues which
11 can be very complicated and unfamiliar in some areas of
12 science or technology. Obviously, if it's the jury you
13 need to make sure that the evidence is going to be 0 14 helpful to the jury and pertinent, and also that the 15 instructions will be useful.
16 So this intersection of law and science, as well
17 as law and some other disciplines, was very interesting
18 to me, and I got involved in some programs at the Federal
19 Judicial Center, setting them up and playing a lead role
20 in them. And through that activity, and this related to
21 my being on the board of the Federal Judicial Center, I
22 chaired a committee there and got interested in this
23 subject area and a number of things that I did when I was
24 on that board, but at any rate this is one area. And as
25 a result, you make a presentation at one conference and 432
1 then you get invited to other conferences, so I met a
2 person who was the editor of the Georgetown periodical
3 that you just mentioned.
4 MS. BRABBIT: And was the course, "Health,
5 Science and the Law," at the Georgetown University
6 Medical and Law Centers?
7 JUDGE MURPHY: Right, and I was invited to
8 be on the editorial board, and I agreed to do that, and
9 worked on helping to put together some of the issues for
10 it. I don't-know that that-journal exists anymore, but
11 it was a very, very provocative and interesting journal.
12 And then we had some conferences at Georgetown
13 that I helped organize and made some presentations at, so
14 we were bringing people together on the health areas, you
15 know, some doctors or people who were expert in
16 physiology and so on and legal people. And also through
17 this I got working with the National Association for the
18 Advancement of Science -- I may not be getting the name
19 correct right now. Because the area that I got
20 interested in was the possibility of the court appointing
21 its own experts because, of course, the experts appointed
22 by the parties are hired guns and frequently, you know,
23 they just head each other off. I maybe told you this
24 incident before, but it pleased me to no end because on
25 the one occasion -- I think I did tell you this -- but
( I "-...../' 433
1 where they had competing experts and the experts couldn't
2 agree on the translation of something from Japanese -- I
3 think I told you that before. It was a really
4 complicated fraud in a business case. There were some
5 medical devices, and a big area of the fraud occurred in
6 Japan. So a key witness, Japanese witness was on the
7 stand, and both sides disagreed about the meaning of his
8 words. I don't know any Japanese. But because I knew
9 from the translations the context of the question and
10 what the witness had said before, I thought I knew what
11 his answer was, and so I offered that, and then they both
12 agreed that that was it. So I was very pleased with
13 that. 0 14 In a number of cases judges have appointed their 15 own expert, either to help them understand the other
16 experts so that you have an unbiased opinion. I had one
17 case where I proposed, instead of the two sides getting
18 an expert, I proposed a particular psychiatrist as an
19 expert, and they agreed on that person. So it saved
20 money, you know, there was only one expert, and it was
21 somebody that I respected from other testimony in other
22 cases.
23 But, anyway, how would you know where to find an
24 expert? So the Association for the Advancement of
25 Science got interested in that, too, because I had given 434
1 a presentation on this topic. So they got me, I led a
2 project looking into how you could develop a list, so to
3 speak, or a cadre of people who would be willing to serve
4 as a neutral expert. In other words, let's say they're
5 chemists or they're microbiologists or something, who
6 would be willing to serve in that capacity. A lot of
7 these people don't want to be experts in trials because
8 they don't approve of how they're used. It turned out,
9 like many things, to be a lot more complicated than we
10 thought at £irst because 0£ the reluckance of many of
11 them, and then how are you going to, you can't really
12 it's a waste of time to try to make a list because you
13 don't know what the exact kind of problem is going to be. 14 But, anyway, we had a committee, I chaired it, we had a 0 15 series of meetings and conferences, and we got a system
16 all set up and ready to go. They wanted me then to be
17 head of the whole operation, but it was just when I went
18 on the Sentencing Commission, so I explained to the
19 assistant director there, who I had been working with on
20 this, and said I couldn't do it. I knew this was going
21 to be so time-consuming. But I thought about who would
22 be a good person for this, and that was Judge Pam Rymer
23 from the 9th Circuit, and I proposed her. And they said,
24 well, okay, will you call her? So I called up Judge
25 Rymer and told her about the deal and she said yes
(j 435
1 immediately. And I saw her picture, this whole deal was
2 in a national magazine, I can't remember if it was the
3 ABA Journal or if it was -- I think it was some other
4 kind of magazine because this was like news, a real
5 break-through in litigation and so on. Big picture of
6 Pam Rymer. But I never heard anything further. I don't
7 know if it ever took hold, but you can see the interest
8 in it. And why I thought of her is she had been a
9 district judge also, because I think you needed somebody
10 who had trial experience. But there's a certain
11 recognition if you're an appellate judge, and she's a
12 person who is very interested in getting involved in
13 things. 0 14 So those were all very interesting, and that's a 15 part of my life that really grows out of working to be an
16 effective district judge, trial judge.
17 MS. BRABBIT: You have more on your list,
18 Judge, the Association of Governing Boards of
19 Universities and Colleges, and then, of course, with
20 respect to universities and colleges you have your work
21 at St. John's and then your work at St. Thomas as well.
22 JUDGE MURPHY: And the University of
23 Minnesota Foundation.
24 MS. BRABBIT: And the University of
25 Minnesota Foundation, including time as chair of the 436
1 Foundation. 0 2 JUDGE MURPHY: And chair of the board of
3 St. John's, Board of Regents.
4 MS. BRABBIT: As well as St. Thomas.
5 JUDGE MURPHY: Well, I'm not board chair
6 there, I'm the chair of the executive committee. The
7 Archbishop of Minneapolis and St. Paul is the chair of
8 the board, but a lot of the work is -- he's a busy
9 fellow, and a lot of the work is done in the executive
10 committee, which meets more frequently.
11 MS. BRABBIT: Would you like to talk more
12 about your board work with any of those organizations?
13 We've got a couple, and I know that they're very 14 important, Judge, in terms of your work, so perhaps we 0 15 can even take them one at a time. We have the University
16 of Minnesota Foundation, we've got St. Thomas, we've got
17 St. John's. You had significant leadership roles at each
18 of those educational institutions.
19 JUDGE MURPHY: Well, the first one as far
20 as term of office would be St. John's, because I went on
21 the Board of Regents there in 1978. In all, I was on
22 that board for 19 years, three of them as chair. And
23 then subsequent to that, I've been on the, they have a
24 Board of Governors, it's really an advisory board for the
25 School of Theology, which is their advanced G 437
,0 I 1 degree-granting part of the school. And now I'm on
2 another subgroup -- really the Board of Regents is in
3 overall charge -- but that's the Hill Museum and
4 Manuscript Library. It's gone through various variations
5 as far as the name goes, which has a large collection of
6 religious art, which is a repository now of the
7 St. John's Bible, which is in progress, which is a
8 handwritten and painted Bible, a complete Bible it's
9 going to be when it's completed, the first one in
10 centuries.
11 And the copies of the manuscripts that the monks
12 have collected, there are some original manuscripts, too.
13 But starting after World War II, there was the 0 14 devastation of the war and the appreciation that 15 documents could be lost, and they went and they first
16 started reproducing them. The technology has changed
17 because now it's all digital. And they expanded beyond
18 Europe to Syria, Egypt, Lebanon, Ethiopia, now in the
19 Eastern Orthodox areas. It's really quite an amazing
20 thing. Scholars come there and use these.
21 But back to the Board of Regents. They have
22 three-year terms, with three as a maximum, so I had one
23 year off between going back on that board, and then an
24 extra year because I had a term as chair for three years.
25 But there were a lot of interesting challenges there, 438
1 like there are in every institution of higher learning. 0 2 It's a particularly unusual institution owned by the
3 Abbey of Benedictine Monks with male students. But it
4 has a sister institution, the College of St. Benedict,
5 which was started by Benedictine nuns and has only women
6 students. Since before I was on the board, they had
7 combined in the sense of having joint classes, although
8 you get a degree from one institution or the other. But
9 in the meantime it grew together so that the departments
10 are all unitary departments, so a person is appointed to
11 history hired by one of the institutions or the other but
12 they're in the same department.
13 You can imagine the nightmare really of trying 14 to combine all of this, and there are two student 0 15 governments, so this is a school that's been very
16 successful for women in recent years because they have
17 the same chance for leadership, they can live in their
18 own areas, but all of the classes and all of the campus
19 life are together.
20 But the governance issues were very difficult
21 and challenging. One was doing the faculty handbook.
22 Before the faculties came so close together with the two
23 institutions. St. John's University is owned by the
24 Abbey, and particularly the role of Benedictine monks
25 within the University was controversial. That faculty 439
,~ ( ) 1 handbook was the first thing that I chaired there that
2 was very, very difficult. And then the ownership of the
3 School of Theology that the Abbey felt, and how that
4 should be, had to be really controlled by the people who
5 ran the University and not by the Abbey. That was hard
6 because at one time this was almost, it felt like the
7 same to the monks. So those were two things I got
8 involved in and trying to work those out.
9 And then when I was chair we had the challenge
10 of trying to bring the boards together because here you
11 had the students and faculty combined in all kinds of
12 ways, and so we set up joint committees for the first
13 time and joint board meetings at which you didn't just
14 say hi, but rather talked about things that were of
15 mutual interest even though you still had these separate
16 institutions. You can imagine the challenges of this.
17 And also setting up a nondestructive way to
18 evaluate the president, because in evaluating a president
19 you need to get input from all the significant
20 constituents. But a very, very talented president there
21 had previously been damaged and quit, even though
22 everybody agreed he was doing a wonderful job, just
23 because of the way it had been managed. So we created a
24 system that's still in use, and they use it for other
25 positions, too. So those are some of the things. 440
1 I wouldn't still be hanging around in any part
2 of the institution if I didn't find it a very enriching
3 place. That's been a big part of my life.
4 Ms.- BRABBIT: How did you get involved?
5 JUDGE MURPHY: Well, the presiderit that I
6 was talking about had brought new life, and he wanted to
7 have a, he was a charismatic figure, he died before his
8 time, so I'm speaking in the past tense. He wanted to --
9 up until then I think the board had been largely
10 Johnnies; in other words, people who had graduated from
11 St. John's. And he thought it was very important to
12 bring in other people and have a more diverse board. A
13 couple of people that were on the board knew me, and I
14 don't know exactly why I was advanced, although I got a
15 call to have lunch with him for the purpose of thinking
16 about going on the board. And I was quite excited
17 because when I was an undergraduate, that was before
18 there was a freeway that went by St. John's. In those
19 days the monks still chanted the office, the daily office
20 in Latin, beautiful with Gregorian chant. So sometimes I
21 would drive up to St. John's for Compline in the
22 evenings, and it was a very important place to me. But
23 that was just as an individual, nobody ever knew I was
24 doing that. I would just go and be enriched by the
25 experience. And then to be asked to be involved in that 0 441
1 place, it was just, I knew immediately I wanted to do it.
2 I was still a state judge then.
3 MS. BRABBIT: So how long did you continue
4 to work with St. John's?
5 JUDGE MURPHY: Well, I'm still working with
6 it, because I'm still on the Hill Museum and Manuscript
7 Library Board.
8 MS. BRABBIT: And the big project being the
9 St. John's Bible?
10 JUDGE MURPHY: Well, the part that's really
11 exciting to me is the preservation, the ongoing work of
12 preserving manuscripts in so many areas of the world.
13 That's the more exciting thing to me. The Bible is a 0 14 wonderful thing, there's no doubt about it. I was chair 15 of the board when the monastery wanted money to start
16 this project, and I just thought it was something that
17 the University couldn't afford. Because the University
18 had to put up the money, and the president told me about,
19 oh, this was going to be such an amazing thing and so on.
20 I thought, well, it's nice, but the Abbey should really
21 be doing this themselves. But anyway, it's been a huge,
22 wild success. You know, it's been a hit at the Library
23 of Congress, it's been at the Victoria and Albert Museum
24 in London, and it's a very exciting project. And it
25 eventually is going to be a big source of support for the 442
1 ongoing work of this museum and library.
2 MS. BRABBIT: Very nice.
3 JUDGE MURPHY: But you learn a lot about, I
4 mean this preservation thing is really interesting
S because you learn a lot about some of the other cultures
6 and so on. It's lifelong learning, you know, being
7 involved with these institutions of higher education.
8 MS. BRABBIT: You then started your work in
9 1990 with the University of Minnesota Foundation.
10 JUDGE MURPHY: I was asked to go on the
11 board of the University of Minnesota Alumni Association
12 when I was still practicing law, and so I went on that
13 board. I was the international president in 1980 and
14 '81, just when I started being a federal district judge.
15 Certainly not every -- it's the rare person in the Alumni
16 Association that is asked to go on the Foundation board,
17 but the project I wanted to push when I was president was
18 to try to get the Alumni Association involved with the
19 other main institutions as far as the outside governance,
20 i.e., the Board of Regents and the Foundation.
21 And the Alumni Association, when I first went on
22 the board was pretty much just a rah-rah ~rganization
23 that wasn't on campus, and it was, the exciting things
24 were getting organized about homecoming and the other
25 sporting events, instead of really focusing on other
0 443
1 parts of the University and the mission of the University
2 and being helpful to the University in many ways. One
3 way that's been very successful is by involving alumni in
4 contacting the Legislature to support the University's
5 requests at the Legislature and so on.
6 But I think it was actually because of my work
7 on the United Way board that I got invited, when I think
8 about who asked me to go on the board of the Foundation.
9 It was somebody that was aware of the leadership role
10 that I was playing there. I'm not sure why they asked.
11 But there again, I knew how important the Foundation was
12 for the University of Minnesota from this other work I
13 had done, and so I went on that board in -- what year was
14 it, '92?
15 MS. BRABBIT: 1990.
16 JUDGE MURPHY: 1990, okay. I was treasurer
17 and chair of various committees, including the nominating
18 or governance committee. We had, the Foundation had
19 developed the problem that is tempting for every board to
20 get into, and that is that if you have good people you
21 don't want to lose them and they don't want to leave. So
22 in the bylaws the terms were limited for three years and
23 you could have two terms, then you had to go, unless you
24 were an officer. So they had developed a second vice
25 president, or associate vice president, and so there's 444
1 this huge list of associate vice presidents, and so there 0 2 were very few spaces. You couldn't keep rotating. And
3 that was very hard to get by the board because the
4 majority of the board would be impacted by it because
5 they would be leaving.
6 So we got a consultant from the Association of
7 Governing Boards of Universities and Colleges, and the
8 consultant that came was the president, a man by the name
9 of Tom Ingram. I was the chair of the committee that was
10 trying to do something about this, and so I worked with
11 him. Then, because of that, because he got to know me,
12 then he wanted me to come on the board of the Association
13 of Governing Boards of Universities and Colleges. You
14 know, one thing leads to another. I chaired other
15 committees, too, and then was treasurer for a number of
16 years and then vice chair and then chair, and now I'm
17 immediate past chair.
18 And I would say the biggest thing I did as chair
19 was lead the endeavor to get a new Memorandum of
20 Understanding between the University president and the
21 Board of Regents and the Foundation, and that turned out
22 to be quite a challenge. But simultaneously I was on a
23 group the AGB had started to develop a model memorandum
24 of understanding between foundations and universities,
25 and there were some great people from various
0 445
1 institutions on that board, and I had insights from the
2 experience at Minnesota that I brought to that. But I
3 also gained so much from knowing about other institutions
4 and pitfalls or bad experiences they had. We got the
5 model one done before we got too far in negotiations on
6 the one that we were doing at the University of
7 Minnesota.
8 It's a very different world in negotiating,
9 because in the meantime the University had gotten more --
10 its Office of General Counsel had changed. There was a
11 different counsel there, there was more inclination to
12 want to control every little thing. Some of the other
13 officers had changed, a new president. Anyway, everybody
14 is real happy with it now. And there also was a big
15 hullabaloo about the compensation of the chief staff
16 person of the Foundation. The underlying facts had
17 occurred before I became chair.
18 You know, just like at the United Way, an
19 important part of the Foundation is to raise money for
20 the University, but because of being a judge I could
21 never be involved in any of that. But there had been a
22 huge campaign, very successful, 1.3 billion had been
23 raised. And the chief of the Foundation, chief staff
24 person, the president, very talented guy, and the number
25 two person, a very talented woman, had led this 446
1 successful campaign. So a couple at the top of the board () 2 structure had set up a compensation system designed to
3 keep them there for the duration of the campaign. And
4 not every fu~~ber of the executive committee or of the
5 board knew about any of this, and so there was some
6 compensation that was deferred compensation that was
7 going to come at the end of the campaign. It came out
8 just as the new president came in of the University, and
9 there was a strike of employees, certain employees over
10 at the University.
11 So this hit the press and people, you know,
12 there were questions about this was too high, how had
13 this happened and so on. This happened just before I 14 became chair. So in addition to working on the C) 15 relationship between the University and the Foundation to
16 establish trust again with this new leadership there,
17 which we've talked about with the Memorandum of
18 Understanding and everything, I had to work on having a
19 compensation system that would be open, that everybody
20 would know how you arrived at the compensation, and that
21 you would set goals that everyone would know about for
22 the base pay, for annual stretch goals, and for rotating
23 three-year, longer-term kinds of goals, and depending
24 upon the percentage of success that the president
25 achieves in each period with the goals, there would be a C) 447
1 maximum amount that would be set for each of these, and
2 then depending upon the percentage of success that the
3 president achieved and the number two person, that would
4 be the compensation.
5 And we worked it out, it was not easy, and then
6 for the first time ever I met with the entire board, it's
7 a large board, I explained this whole system that we had
8 set up and how it was going to work, and you could have
9 heard a pin drop, you know, at that meeting, the
10 executive session of that meeting, because nobody had
11 ever, you know, it was like the children, and nobody had
12 ever heard this before. The system is still in use. But
13 I notice that the current chair, instead of going through 0 14 all the detail with everybody, says we've used this 15 system and everybody's met and it's been fine, but we
16 have a human resources committee that works in detail on
1 7 it.
18 MS. BRABBIT: Do you remain involved?
19 JUDGE MURPHY: Yes, I was just at the
20 meeting of that committee, it's a very important
21 committee, just like it is in other corporations. But,
22 you know, just talking to you about these various things,
23 it's interesting, because of the kinds of things when I
24 think about particular things I've accomplished, they are
25 frequently related to governance, trying to improve 448
1 governance in a way to bring people in, get them 0 2 involved, try to work out conflicts. Maybe I'm not the
3 best one to be thinking about this, but it just strikes
4 me as I'm sort of listening with one ear while I'm
5 expounding.
6 MS. BRABBIT: And, of course, your
7 leadership in different governance on different boards.
8 JUDGE MURPHY: Trying to develop resources,
9 new ways to deal with things. Those are the challenges I
10 l~ke, -and I like working with. I really.do like. working,
11 whether it's conflict and trying to find a way to bridge
12 it, bring people together. And, you know, it's
13 interesting to think about which fed which. I mean 14 probably it's a combination, because I had some skills () 15 like that before I became a trial judge that were very
16 useful. Being a trial judge, and then you learn from
17 being a trial judge. You know what I mean, it all sort
18 of reinforces each other.
19 MS. BRABBIT: How about your work both at
20 the University of St. Thomas as a trustee and as vice
21 chair of the Board of Governance for the School of Law,
22 Judge?
23 JUDGE MURPHY: I was chair of that, too.
24 MS. BRABBIT: Yes, I think we're using
25 different terms for the same position. The chair of
0 449
1 JUDGE MURPHY: I was first vice chair to
2 Cardinal Pio Laghi.
3 MS. BRABBIT: Oh, correct, and then as
4 chair.
5 JUDGE MURPHY: Well, the two are very
6 different but it's related. When I look at what I've
7 achieved, to the extent that I've achieved anything as an
8 individual trustee at the University of St. Thomas. It's
9 funny. I was originally asked to go on the St. Thomas
10 board when I was still a regent at St. John's, and I
11 talked to the president of St. John's at that time. He
12 didn't think -- he would be uncomfortable with a person
13 who was a trustee of both. You know, there's an old 0 14 rivalry, it may only be in sports, as far as I can see. 15 I was there first, and so I said no thank you to
16 St. Thomas, but then I got invited to go on St. Thomas'
17 board again when both presidents were different.
18 Monsignor Murphy was president of St. Thomas
19 when I was first invited to go on the board, and then
20 Father Dease became president. I had met Father Dease
21 when somebody asked me to go and speak at the Basilica
22 where he was rector, on who knows what topic, I would
23 have to go back into my thoughts. I think it related to
24 conflict in some way. And I just liked him so much and I
25 was so impressed with him. The reason I say it may have 450
1 related to conflict in some way is because at the lunch
2 following the talk I discovered that he had written a
3 book on priests and stress, and so somehow I think the
4 topic was about judges and stress. Anyway, I asked him
5 for a copy of his pamphlet and I found that very
6 interesting.
7 Meanwhile there was a new president at
8 St. John's; in fact, the two of them started just about
9 the same time. So I went to the new president at
10 St. John's and I said, well, what do you think about
11 this? He said, yeah, I've got no problem with it. So I
12 went on the board at St. Thomas and, of course, during
13 that time, at the beginning of my time at St. Thomas I 14 was very involved at St. John's. And as a new trustee 0 15 you're on committees and so forth, but it's a big board
16 and you don't do that much. They wanted me to be on the
17 physical resources committee because they knew I was
18 building a courthouse and knew something about
19 design/build and so on. And, of course, I loved that
20 committee, and they've built a lot while I've been
21 around. It's a very challenging. We won't go into much
22 detail on it.
23 I was on the academic affairs committee, I liked
24 that a lot, too. I came to chair the physical facilities
25 committee, and in those years they had the chairs of all
(_j 451
·~ ( I 1 the committees report at each board meeting. Sometimes
2 you had something significant to report and sometimes
3 not, but people got to know you somewhat by the fact that
4 you're making these reports.
5 One time I had the terrible misfortune of making
6 Archbishop Roach so mad he turned purple. Terrible,
7 terrible thing. St. Thomas was going to build a Science
8 Center, and it's a wonderful -- I don't know if you've
9 been over there to see it, it's two buildings and it's
10 right on the corner of Cretin and Summit. There had been
11 the home for retired priests on part of this land that
12 they wanted, and so the staff of St. Thomas and the
13 Archdiocese had worked together about how they were going 0 14 to work this out. They were going to build a new and 15 much nicer home for retired priests that looks out on the
16 river, and St. Thomas would then be able to tear that
17 down and use that space for this big science complex,
18 which has made such a difference for the University
19 because of having really good equipment and lab space and
20 everything. Anyway, that's another part.
21 And so the particular point was about how many
22 additional rooms for retired priests St. Thomas would pay
23 for, and the staff person told me that the Archdiocese
24 would pay for this and that it had been agreed upon by
25 the staff. Well, nobody apparently had talked to the 452
1 Archbishop. And so, innocent me, I'm making the report, () 2 and Archbishop, wonderful person, it's not the current
3 Archbishop, I mean truly he yelled, he started yelling.
4 He said, Judge Murphy -- so,- anyway, you might call it a
5 baptism by fire. There were other issues that were very
6 controversial. I mean that one wasn't, you know, it got
7 worked out, and at the end of the meeting the vicar
8 general came up and apologized to me because he knew that
9 this had been the agreement but they hadn't properly
10 brought along the archbishop, and it was just a.matter of
11 a couple rooms, but who knows what the difference in
12 price would be.
13 Anyway, then they were talking about whether you 14 could have men and women in the same dorms. There were a 0 15 lot of things that were controversial where I had one
16 view and wasn't afraid to speak up and so on. It's been
17 a long time that I've been on that. The reason I was
18 trying to give you just the background is because Father
19. Dease had -- Monsignor Murphy originally had an idea
20 about it would be great to have a law school, and Father
21 Dease wanted to pursue that. So they set up a committee
22 to talk with William Mitchell about combining, William
23 Mitchell becomipg the William Mitchell College of Law at
24 the University of St. Thomas, and they had a small
25 committee from St. Thomas, which consisted of Father l) 453
1 Dease, Monsignor Murphy, Mike Ciresi, a well-known
2 lawyer, and myself, and one other lawyer, Jim Larkin, who
3 is dead now. And we met with the people from Mitchell.
4 At that time I was a member of the corporation
5 of William Mitchell, which I don't know how they're
6 organized now, but the corporation picked the board of
7 Mitchell. So I said that I wanted to resign from the
8 corporation because you can't really be on both sides,
9 but the chair of the William Mitchell board and the dean
10 there asked me, please, to stay, because I had some
11 connection that they thought would assist. Anyway, we
12 had endless meetings, and the leadership of the board and
13 the future leadership, you know, the next in line, and 0 14 the dean all wanted to do this because -- 15 MS. BRABBIT: William Mitchell?
16 JUDGE MURPHY: Yes, yes. Not everybody at
17 St. Thomas was crazy about having a law school as far as
18 the board went, which was out there as a problem. But
19 they didn't, they had been skeptical about this
20 committee, but they didn't rise up and say you can't do
21 it. Monsignor Murphy and Father Dease had such patience
22 because they went over and talked with a lot of people
23 over there to assure them that there was academic freedom
24 at the University of St. Thomas. But in the end there
25 were a couple board members that really thought it was a 454
1 mistake, and it was the best thing that happened for 0 2 St. Thomas really. So, anyway, they didn't go forward
3 with it.
4 Then the University just set it aside for a bit,
5 but then began thinking about opening up its own law
6 school. There was resistance on the board because there
7 are many entrepreneurs on that board, there are many
8 business leaders, and they didn't always like lawyers.
9 Not that they didn't use them themselves, but the idea of
10 making more wa& not-appealing to all,
11 I supported, you know, Father Dease in this. I
12 thought it would be a very good thing for the University
13 of St. Thomas to have a law school. I mean there were 14 people in the community that were saying that's terrible 0 15 because we already have three law schools, and not only
16 do we not want more lawyers but this would be bad for the
17 other law schools and we don't need another one. But my
18 thought was, well, in this situation I was a trustee for
19 the University of St. Thomas, and it was good for the
20 University, And so I became a voice on the board for this
21 law school.
22 At one point an advisory committee was set up
23 that was very broad-based, had a lot of lawyers, a lot of
24 judges, a lot of different people on it, and it was not
25 all of one mind, and there was no actual chair of that,
0 455
1 which was an unwieldy thing. But when there were
2 meetings I was asked to chair the meetings, and we had a
3 consultant. And so to guide that process without being
4 denominated as chair, and to get a result from that that
5 seemed to be a reasonable one, and then you had the
6 advisory committee's recommendation, which was to open a
7 law school, and the consultant's, which is this is what
8 you need to do, and then it became a decision for the
9 board. And I really talked with a lot of people about
10 this, as well as making a presentation from the advisory
11 committee and, as you know, it was a go-ahead.
12 A lot of people want to say they were involved
13 in this, because success has many mothers or fathers, but 0 14 I was one of the people, I mean without my involvement, 15 it wouldn't have happened. I mean Father Dease was the
16 most important obviously. But, anyway, it's worked out
17 very well.
18 MS. BRABBIT: Did the feasibility study
19 come through the advisory board? Was there a feasibility
20 study?
21 JUDGE MURPHY: It was a consultant's study.
22 MS. BRABBIT: Oh, a consultant's study.
23 JUDGE MURPHY: Well, we had two things. We
24 had somebody from the East who was an outside consultant,
25 and then Sister Sally Furay was on the board at that 456
1 time, and she was a strong proponent for a law school.
2 She is a lawyer herself, and she had been provost, I
3 think it was, at the University of San Diego, and so she
4 conducted another something or other. Whether that was
5 called feasibility, you know, I don't remember what we
6 called these various things.
7 MS. BRABBIT: And you remain involved at
8 the University of St. Thomas on the board?
9 JUDGE MURPHY: Well, more involved than
10 ever, because I'm chairing the executive committee and
11 I'm on the Board of Affairs committee, which is the
12 governance committee, and I'm still on the physical
13 facilities committee, although unfortunately it meets the
14 same time now as the Board of Affairs committee, but they
15 tell me they're going to switch it so I can do both.
16 Plus right now I'm involved in a project considering
17 whether St. Thomas should open a medical school. I'm on
18 the steering committee that's going to look at the
19 reports from various task forces and will be presenting
20 something to the board. And I said they really need to
21 look into the legal issues related to this because it
22 would involve a partnership with a large hospital and
23 clinic group, and so there would be a lot of governance
24 issues and a lot of liability issues, so one of the task
25 forces that they set up is going to be dealing with the
0 457
1 legal issues.
2 MS. BRABBIT: And you will continue to
3 follow that work as well?
4 JUDGE MURPHY: Well, you know, I don't know
5 what the board is going to do with this, but they'll be
6 looking at it. And then when the Board of Governors of
7 the law school was going to be set up, Father Dease came
8 and asked me if I would be the first chair of the board
9 and I agreed. He was sitting right where you're sitting.
10 And then a better opportunity came along for the
11 University because Cardinal Pio Laghi became available,
12 and that was -- He's quite an inspirational individual
13 and obviously very well-placed, and so he became the 0 14 first chair. I was glad to step back to the position of 15 vice chair. He served for two years and then I served
16 for two years and, you know, you need to get a rotation,
17 and we were able to get then Chief Justice Blatz,
18 Kathleen Blatz, to agree to be the third chair, and so it
19 really helped, we had a lot of involvement from the bar
20 and the-business world on that Board of Governors, and
21 it's safe to say the law school has been a success, and
22 hasn't damaged the other law schools.
23 MS. BRABBIT: Have you enjoyed your work
24 with the University of St. John's, St. Thomas, the
25 University of Minnesota? 458
1 JUDGE MURPHY: Oh, I love it. Loved every
2 minute of it. I mean sometimes they've been a little
3 hairy, and things don't come to a head at the best time
4 always as far as all ·your other commitments go. I mean
5 the most important for the universities have been all
6 these people who have been so generous with their money.
7 That's nothing that I've been able to contribute to.
8 MS. BRABBIT: Judge, thanks for your
9 outline of your involvement with those universities.
10 It's particularly fun for me because, of course, I'm at
11 the University of St. Thomas right now, and the place is
12 near and dear to my heart.
13 JUDGE MURPHY: Can I just say one thing 14 about the school of law? Not that people would 0 15 necessarily care.
16 MS. BRABBIT: Absolutely.
17 JUDGE MURPHY: There were a couple things
18 that were key for that school. One was the mission, and
19 one was, whether it had been an original dean who was
20 there for the planning phase who had been for a long time
21 at Notre Dame, he had been dean there for 25 years, and
22 it gave credibility to have Dean Link as the Pied Piper
23 out there before. The first real dean, you know, from
24 the standpoint of really getting -- Dean Link did make a
25 couple key hires at the beginning, but the one who really
CJ 459
1 got the school off the ground running is the current Dean
2 Tom Mengler, who came from being dean at the University
3 of Illinois. And how a fledgling school could get these
4 people, you know, to throw in their hat. And he has just
5 been a tremendous asset, as well as the people who have
6 been supporting it with their money, because you can't do
7 it without money.
8 MS. BRABBIT: And he is enjoying himself in
9 Rome, Italy, as we tape this session.
10 JUDGE MURPHY: Yes, hard at work for
11 St. Thomas.
12 MS. BRABBIT: Hard at work for St. Thomas,
13 that's right. 0 14 JUDGE MURPHY: And you were just there 15 recently doing the same thing.
16 MS. BRABBIT: Yes, that's right. Let me
17 now ask you about a couple other activities for
18 leadership positions that you've been --
19 JUDGE MURPHY: Why don't we do AGB since
20 it's education.
21 MS. BRABBIT: Sure, let's do that. Let's
22 do AGB.
23 JUDGE MURPHY: Yes. Since it's education,
24 it just seemed like a natural. Well, I told you why I
25 was invited to go on the board. I'm just retired from 460
1 nine years. Wonderful, wonderful institution. It's been (~) 2 fortunate in the leadership, staff leadership it's had.
3 There's a different leader now, Tom Ingram is retired and
4 Rick Legon is now the staff head. It's attracted really
5 interesting people to the board. They hav~ to be a
6 trustee of a college or university governing board or
7 foundation, so I qualified for that in two respects; one
8 being on the board of the University of Minnesota
9 Foundation, and then being on the board of the University
10 of St. Thomas at the.time I went on. I was no longer on
11 the board at St. John's, I had just quit. Not quit, I
12 had rotated off.
13 AGB is just on the cutting edge of recognizing 14 key issues in governance for universities and colleges, C) 15 and they have wonderful publications. I might talk about
16 some of the committees that I chaired when I was there,
17 because it's a way of getting into some of the work that
18 happened while I was there. One was related to -- see,
19 this isn't -- when Tom was still head of it, he got the
20 idea about, because Congress was starting_to change the
21 way it related to education. And there were some danger
22 signals from the standpoint of meddling perhaps within
23 higher education and restrictions. Could AGB, combined
24 with other educational institutions, develop a cadre of
25 people who would be well-placed to speak with members of u 461
1 Congress on issues? Not everybody on the board thought
2 it was a good idea at first, but as some issues came up
3 that people were worried about -- Here again this isn't
4 something where I would be talking to anybody in
5 Congress, because as a member of the judiciary I can talk
6 to a member of Congress about an issue related to the
7 judiciary, such as testifying about compensation, which I
8 have done, but not on any other kind of issue.
9 But this was an organizational problem, and
10 there are a number of other associations, like there's a
11 governing group of presidents of research universities,
12 another group of presidents of land grant universities,
13 there's about six of these. So the first thing we did 0 14 was talk with these groups about the idea, because the 15 idea was we would combine with all of them. Some of them
16 had lobbyists of their own and they were jealous about
17 their own situation, so the committee eventually -- well,
18 first of all, decided it was pursuing this. It took a
19 lot of internal discussion about that, then went out into
20 the world and talked with some of these other people and
21 then came back and, well, should we do it by ourselves,
22 because the others all thought it was a fine idea.
23 So that now is just in operation, and the Higher
24 Education Act is under consideration by Congress, and the
25 various issues that they want to address, and they got a 4 62
(''\ 1 group, a cadre of people who are close to Senator Hatch \ ... _ ~)
2 or, you know, I'm just using this as an example.
3 MS. BRABBIT: Yes.
4 JUDGE MURPHY: It's hard to remember all
5 the committees I chaired there. I chaired the audit
6 committee at a time after Sarbanes-Oxley came out, and so
7 we changed the mission description of the audit
8 committee, increased the number of meetings from one to
9 three during the year, wrote up codes of conduct for the
1 0 staff , ~ con f 1 i ct things for the board members , worked w i th
11 the auditors to see what kinds of things we had to be
12 sure we were looking at. So that was challenging and
13 interesting. It sort of went along with that. I mean 14 that was at a time when the Sentencing Commission was 0 15 writing new guidelines because of Sarbanes-Oxley, and we
16 were, at my urging we had undertaken the relook at the
17 chapter of the sentencing guidelines that deals with
18 sentencing corporations and organizations. So that was
19 sort of some nice overlap.
20 Right at the moment I'm not thinking, but I know
21 I chaired some other committees and, of course, was vice
22 chair, and in the last year there I really, the chair was
23 ill, and so I -- well, I chaired the governance and
24 nominating committees, and so I had to fill in for him.
25 I learned an awful lot from that. Such outstanding
0 4 63
.r~ ' l 1 people that had been involved in a lot of different kinds
2 of institutions.
3 MS. BRABBIT: You just retired from AGB, is
4 that right, Judge?
5 JUDGE MURPHY: Um-hum.
6 MS. BRABBIT: That would have been this
7 year, 2007?
8 JUDGE MURPHY: Right. There's my
9 going-away gift, you know, you looked at that. It's got
10 that serpent coiled on it.
11 MS. BRABBIT: It's beautiful. I remember
12 that from last time.
13 JUDGE MURPHY: Yes, because we got it out 0 14 of the box to look and see who made it. Steuben. 15 MS. BRABBIT: Yes, it's beautiful. Very,
16 very nice gift. Any other educational leadership,
17 academic things?
18 JUDGE MURPHY: Well, you know, usual stuff.
19 I'm on the advisory committee to the University of
20 Minnesota Law Review. It's a board, advisory board.
21 MS. BRABBIT: Okay.
22 JUDGE MURPHY: They started it several
23 years ago. Actually I found that to be quite
24 interesting. I'm not able to make all the meetings, but
25 it's real invigorating to see these kids, if you excuse 4 64
1 the expression, working on this stuff. The last dean
2 wanted to move them out of the law school building to
3 another building, and they were really upset about that,
4 and I think the alumni were more concerned about it.
5 Because, you know, to separate them from the library and
6 so on.
7 MS. BRABBIT: Right.
8 JUDGE MURPHY: But invigorating when they
9 are thinking about their ideas of what they want to do
10 with the Law Review and_the symposium. They had some
11 very good symposia, so I've enjoyed that. I was on the
12 Board of Visitors and the Board of the Alumni for the
13 University of Minnesota Law School for some years. That 14 was interesting, too, see what the faculties are doing 0 15 and so forth. I think we've covered the education now.
16 MS. BRABBIT: Well, I know how grateful
17 everybody has been to have your involvement.
18 JUDGE MURPHY: Well, it's been to my
19 benefit, it really has.
20 MS. BRABBIT: It's mutual, very mutual,
21 Judge. Moving in chronological order --
22 JUDGE MURPHY: I mean, just think, Father
23 Dease has done the marriages for both of my children. A
24 monk, who is a good friend of mine, who I never would
25 have known except for my involvement at St. John's,
0 465
/~ ) 1 Father Jonathan Licari, did the baptism for my children.
2 MS. BRABBIT: How nice.
3 JUDGE MURPHY: You know, you form the
4 relationships, and there are many other relationships.
5 It's not just with the religious, you know, that enrich
6 my life.
7 MS. BRABBIT: Judge, you have a long and
8 distinguished involvement with the ABA, the American Bar
9 Association, and --
10 JUDGE MURPHY: Well, I think I told you
11 about how I loved being involved in the Hennepin County
12 Governing Council and the State Bar. I learned so much
13 working with the lawyers and judges in those groups. So
14 once I was on the federal bench I got involved with the
15 ABA, joined the litigation section and the judicial
16 division. When I got invited to be on this judicial
17 what's the name of it? You've got --
18 MS. BRABBIT: It is the ABA Standing
19 Committee on Judicial Selections, Tenure and
20 Compensation.
21 JUDGE MURPHY: Right. And that no longer
22 is a standing committee, but it was a committee for
23 years, and it's too bad they gave it up. I mean they
24 still cover it with some other committee but it really
25 deserves its own, because that's such a problem for the
\~/ 466
1 judiciary, and I suspect I got involved in that because () 2 of -- well, either my work at AJS or the Federal Judges
3 Association, I can't say which. Probably the Federal
4 Judges Association because, I don't know if I talked
5 about that before, I testified in Congress.
6 MS. BRABBIT: Um-hum, about the
7 compensation issue.
8 JUDGE MURPHY: Well, I did certainly when I
9 was president, but I did before I was president, too, and
10 wrote -the ~estimony and so forth, and I don't know if I
11 talked about the first time I testified.
12 MS. BRABBIT: I don't believe you mentioned
13 the first time you testified. 14 JUDGE MURPHY: About how Ralph Nader came 0 15 up?
16 MS. BRABBIT: No.
17 JUDGE MURPHY: Well, the committee that was
18 the House Committee on Post Office, it doesn't sound like
19 that's what would be governing it but it was. There was
20 a flinty, old guy who had been in Congress for a long
21 time was the chair of the committee, and I was scheduled.
22 There were a number of people that were going to testify,
23 and the first ones were lawyers and they were dressed
24 like a million bucks and so forth. The chairman listened
25 to them with interest and -- are you sure I didn't tell u 467
1 you about this?
2 MS. BRABBIT: I'm pretty sure.
3 JUDGE MURPHY: It's a good story, it
4 doesn't matter if I've told you before.
5 MS. BRABBIT: Tell it again, but I'm sure
6 you haven't told it once.
7 JUDGE MURPHY: The chairman was, as I say,
8 this crusty, old guy, and he listened to them and took
9 interest, and I was so nervous, they were very polished
10 presenters. This was the first time I had testified
11 before Congress other than at my confirmation hearing as
12 a federal district judge, and this was asking for
13 something, you know, other than a job. Of course, that 0 14 was quite a bit, too. 15 But I got up and I was really nervous and I
16 started to speak, and the chairman got up out of his seat
17 and went over to get some coffee and stuff. I was the
18 first woman, of course, and I think the only woman who
19 was testifying that day. You can imagine how this made
20 me feel. My first time at testifying I followed the
21 script that I had, and I learned from that experience a
22 lot, and that is it's just like anything; you should not
23 be following a script but rather be in more of a
24 conversational mode because that goes over better.
25 But at any rate, you know, I thought this is 468
1 terrible, there's nothing for me to do but to go on () 2 intoning, but then something good happened. In walked a
3 congresswoman. She is from Maryland, and I believe she
4 is still there, but she had·been there quite awhile
5 because she was from a good district for her. Isn't that
6 terrible? I can't think of her name right now, and I'll
7 be kicking myself later. She was important. So I
8 finished my little talk and she asked me a question. And
9 that's what the good thing is. I hadn't had this
10 experience before, but that's the great thing when they
11 ask you a question, because that's when they're
12 interested.
13 I don't know what the question was, I don't know 14 what I said, but then the chairman came back and sat 0 15 down. He was interested in that give-and-take. And then
16 he said, well, you know, I've heard Ralph, he referred to
17 Ralph Nader's comments that federal judges didn't need
18 more compensation, that they had plenty. And he was very
19 active on the subject at that time, so I knew that he had
20 said that but, I mean, this was a tough question. I
21 can't remember how he phrased it, but it was like, you
22 know, why should you get any more because -- quoting him.
23 And I said, well, you know, your mind goes blank but you
24 know you've got to say something. I said, well, I know
25 that Mr. Nader has a very abstemious way of life but, you u 469
1 know, a lot of these federal judges have families that
2 they have to support -- I mean I didn't say unlike
3 Nader -- but that they have to educate and so on, and it
4 seems, you know, now just when women and minorities are
5 getting a chance to be part of the federal judiciary that
6 the salaries should be looked at as something that
7 doesn't need to be a real salary as compared to a
8 lawyer's and so on. And then he sat back and said that's
9 the best answer I've ever heard to that.
10 MS. BRABBIT: How wonderful.
11 JUDGE MURPHY: Yeah, it gave me a great
12 boost, you see, for the next time I was going to do this.
13 I knew I would be better the next time I went. 0 14 MS. BRABBIT: Wow. And what a great moment 15 of support for women and minorities on the bench as well.
16 JUDGE MURPHY: Yeah, it was a good well,
17 I was thinking at first what am I going to say. But,
18 anyway, back to the business at hand. So that committee
19 was concerned with the compensation of federal judges and
20 state judges, and so we were always working towards that.
21 And particularly, of course, I was concerned about both,
22 and also concerned about judicial independence, state and
23 federal, and so the committee was suggesting that the ABA
24 take different positions. And I was on that for a number
25 of years. At some point I was asked to go on this 470
1 judge's committee on advising the division on ethics.
2 You've got the fancy title there.
3 MS. BRABBIT: Is that the --
4 JUDGE MURPHY: Marcella copied it.
5 Steering Committee on Ethics and Professional
6 Responsibility, but there's a judges' advisory committee
7 on ethics, but you maybe don't have that down.
8 MS. BRABBIT: Judge, that committee is the
9 ABA Judges' Advisory Committee on Ethics and Professional
10 Responsibiiity.
11 JUDGE MURPHY: Right, and so you have the
12 years that I was involved in that?
13 MS. BRABBIT: I do. 1981 to 1988 as a 14 member on the committee, and then chair of the committee 0 15 from 1997 to 2000.
16 JUDGE MURPHY: When I went on that
17 committee Cornelia Kennedy was the chair of it. She was
18 a real trailblazer, you know, one of the first women to
19 go on the federal bench, district court judge in Detroit,
20 and then the second woman to go on the Court of Appeals,
21 6th Circuit. Anyway, she was the chair of this committee
22 when I went on, and there were some touchy issues that
23 came up at that time.
24 One of them was related to the ABA's position on
25 membership in clubs that didn't accept everybody. We had
0 471
1 to work on helping to fashion something that would be
2 appropriate for the ABA. And also in light of the
3 concerns that Congress had about memberships in clubs.
4 There were other issues, too, but I remember that one in
5 particular.
6 Then I was on the Standing Committee on Federal
7 Judicial Improvements, which I told you I replaced
8 Justice Ginsburg when she rotated off. She was then on
9 the D.C. Circuit. What years do you have for that?
10 MS. BRABBIT: 1994 to 1997.
11 JUDGE MURPHY: That was a terrific
12 committee, and it was when I rotated off that that I was
13 appointed to be chair of the other one. 0 14 MS. BRABBIT: Of the ABA Judges' Advisory 15 Committee on Ethics and Professional Responsibility?
16 JUDGE MURPHY: Right, right. The Committee
17 on Federal Judicial Improvements was concerned with the
18 federal courts obviously. It was concerned with
19 compensation and with judicial independence, but not in
20 the nitty-gritty way that that other committee had been
21 where you were testifying and so forth. It was concerned
22 also with substantive, you know, procedural concerns, or
23 structural concerns.
24 I even got Judge Richard Arnold and Judge Gil
25 Merritt, who had been roommates at one point in their 472
1 life, and who at that time was the chief judge of the 8th
2 Circuit and of the 6th Circuit respectively, I got them
3 to come to one of our committee meetings and talk about
4 some of the concerns that judiciary had at that time.
5 There always are these concerns between the branches,
6 there were concerns within the structure of the courts
7 that Congress got sort of concerned about, the Federal
8 Judicial Center sometimes having difficulties with the
9 Administrative Office of.the United States Courts. But
10 all kinds of substantiv.e. issue.s that. lawyers or judges
11 would care about, about court rules or procedures.
12 Intellectually exciting committee.
13 MS. BRABBIT: Any additional work with the 14 ABA that we haven't touched on, Judge? 0 15 JUDGE MURPHY: Well, I was on a governing
16 group of the appellate judges conference, the executive
17 committee. I quit that when I went on the Sentencing
18 Commission. They tried to talk me out of it and said,
19 well, Deanell Tacha, Judge Deanell Tacha stayed on the
20 executive committee even when she was on the Sentencing
21 Commission. I said but being chair is different than
22 being on the -- and little did I realize the full extent
23 of that.
24 It's 5:00 now. I suppose we should do the
25 Federal Judicial Center next because that really is u 473
1 education for the federal judiciary. We touched on some
2 other education things sort of peripherally with
3 Georgetown and the advancement of science outfit that
4 related to federal courts.
5 MS. BRABBIT: The next time we meet, Judge,
6 we'll start with the Federal Judicial Center. That
7 concludes our taping for July.
8 (End of session.)
9
10
11
12
13 0 14 15
16
17
18
19
20
21
22
23
24
25 474
1 (August 23, 2007.)
2 MS. BRABBIT: Judge, it's great to see you
3 again today. Today's date is August 23rd of 2007, and we
4 meet again to continue our ABA project. Last we met was
5 July 3rd, 2007, and we were talking about -- well,
6 actually we started with a little bit of an introduction
7 to the Sentencing Commission and the Appellate Judges
8 Conference and the transition point between the two. Is
9 that a good place for today.
10 JUDGE MURPHY: Well, it's a place to start.
11 It's hard to know. Yes, in the sense that I maybe should
12 say something a little bit more about being Chair of the
13 Sentencing Commission because it's sort of a unique 14 position. Each member of, each voting member of the () 15 Sentencing Commission is appointed by the President and
16 receives a commission from the President, of course with
17 the advice and consent of the Senate. But the Chair
18 receives a separate commission as Chair, and certainly
19 when we had the hearings before the Senate Majority,
20 which was in opposition to the PresLdent in general, they
21 focused very much on me as the Chair in that hearing.
22 By statute, the Chair is given the
23 responsibility of obtaining the appropriation from
24 Congress. And as people who have worked with Congress
25 would know, that's a huge time consumption because you
0 475
1 have to draw up your budget, forecasting your needs like
2 any agency. When I started, the Commission had gone
3 vacant, and in the last report of the Senate Finance
4 Committee in the appropriation process they had said
5 that, you know, questioned whether the Commission should
6 continue, and the appropriation had been cut back while I
7 was gone. And anybody who's worked with Congress knows
8 that it's very difficult to build an appropriation up
9 when it's been cut. So at any rate, back to what the
10 statutory responsibilities are, one is to get the
11 appropriation from Congress for the running of the
12 agency, which has 100 employees located in the Thurgood
13 Marshall Federal Building, has a very nice layout of 0 14 offices, and the other statutory responsibility, aside 15 from the legislative work of the Sentencing Commission,
16 is to approve every expenditure of the agency. So that
17 means you've got to take special care to make sure that
18 you have systems in place for appropriate expenditures
19 and to back them up and so forth.
20 One of the major responsibilities of the
21 Sentencing Commission is to promulgate the sentencing
22 guidelines, which become effective automatically in 180
23 days, unless Congress passes legislation to overcome
24 them. In the history of the Sentencing Commission that's
25 only happened a couple of times, so this is very 476
1 important work, and you're a mini Congress, so to speak, () 2 and you operate in a similar fashion.
3 You have a staff of people that, lawyers, the
4 staff do different functions, but you have a staff of
5 lawyers, you have some drafting people, you have public
6 hearings. You publish everything you're thinking about
7 considering or promulgating in the Federal Register with
8 opportunities for responses. And you also -- we had
9 advisory committees that we worked with in different
10 areas, some of them of long standing and some that we
11 initiated. There is an ex-officio member of the Justice
12 Department on the Sentencing Commission, nonvoting
13 member, and the head of the Parole Commission is also a 14 nonvoting member of the Sentencing Commission. 0 15 The defense bar for years has wanted to have a
16 defense representative but Congress has never seen fit to
17 make that change, so the Commission set up a system of an
18 advisory group from the defense bar that meets with the
19 Commission a couple times a year and also, of course,
20 comes and testifies when we're considering certain
21 problems. And there is, you know, preceding me, had been
22 an advisory committee of probation officers. They're
23 working all the time with not just probationers, but with
24 people when they're coming through the system and
25 preparing the presentence reports and so on. And, of G 477
1 course, they don't have a voting position and sometimes
2 they have different insights than the prosecutors. They
3 also are the ones that in the first place are preparing
4 the projected sentencing range under the guidelines that
5 the defendant ·would fall into, so they' re very valuable
6 in advising if there are some areas that are ambiguous or
7 difficult to work with.
8 We set up a committee on, an advisory committee
9 on corporate crime, white collar crime, looking to see
10 whether we needed to revise Chapter 8 of the guidelines,
11 which deals with corporate crime and with the
12 Sarbanes-Oxley Act, which resulted from corporate
13 scandals. There was a lot more emphasis on proactive
14 measures that corporations should take and what the
15 Sentencing Commission might do with the guidelines and
16 other means to have not just sentencing guidelines, but
17 also ethical considerations and guidelines.
18 We also set up another one on Native American
19 sentencing issues. This only involves -- well, of course
20 a Native American can commit a federal crime anywhere and
21 then they would be subject to the federal guidelines, but
22 there are a number of reservations that are independent
23 of state law, and on those reservations people who commit
24 what would otherwise be state crimes are prosecuted by
25 the federal government and the guidelines differ. 478
1 Usually they're much more severe than the sentencing 0
2 provisions under state law. For example, you could be
3 involved in a fight and have assault charges brought
4 against several people, and the Indian on this kind of
5 reservation -- and in Minnesota the Red Lake Reservation
6 is an example, and South Dakota, for example, there are a
7 lot of these federal reservations -- would be sentenced
8 under the federal sentencing guidelines, and the
9 non-Indian would be facing the state sentencing, which
10 would be much-more lenien~. So it could be the same
11 conduct.
12 And there are other problems with the
13 reservations because many of the, there aren't any (),I 14 accessible federal prisons. So they're a long distance, " 15 particularly for sex offenders, who may very well be sent
16 to Butner, North Carolina where there's a special
17 facility, and very hard for the impoverished families to
18 go visit. A lot of particular kinds of crimes. At the
19 other end of the line, driving under the influence is
20 frequently punished more severely under the state than
21 under the federal law, so you get some disparities in it,
22 too. Anyway, we worked with that group.
23 In addition to promulgating new guidelines for
24 existing crimes, or the new crimes that Congress is
25 always creating as the law changes, we may turn to 479
1 technology. As things in life change, there are new
2 crimes. There's a whole cyber world as a good example.
3 Or Congress is dissatisfied with thinking that sentences
4 in a particular area might be low and want you to take a
5 look at it. Then the Supreme Court has given the
6 Sentencing Commission the obligation to resolve any
7 circuit conflicts in interpretation of the guidelines, so
8 there's your miniature court, looking at those things and
9 making changes where you think appropriate.
10 Also there's responsibility for keeping track of
11 every sentence, keeping statistics on that, which is very
12 useful for Congress, for the Government Accountability
13 Office, for the courts themselves, and for the sentencing
0 14 studies that the Commission is asked to perform by
15 Congress, or decides to undertake itself. And we
16 undertook a massive study on crack and powder cocaine and
17 came up with very clear showing that the drastic
18 difference between sentences for crack, congressionally
19 mandated sentences for crack and powder were not
20 warranted. You know, Congress from time to time will
21 introduce some legislation, there's some pending now, to
22 try to alleviate this, but they never seem to actually
23 vote it up. But that's just an example of research that
24 we took on ourselves. Then we were asked to come
25 testify. I was asked to testify on that before Congress,
\__) 480
1 to testify about downward departures and so on. n
2 And then you're the research department, this
3 department that tabulates all the cases, and there are
4 thousands and thousands and thousands of people sentenced
5 in federal courts every year, so this is a tremendous
6 undertaking, to tabulate all of these and have them
7 ready. And then, of course, you have to reach out to the
8 media, and I know when I was there I appeared on talk
9 shows on television, and many interviews with me ranging
10 Erom the Wall Street Journal to online Slate and so
11 forth. So as the Chair, you're really the spokesperson
12 for the agency if you have to defend what you've done on 13 the Hill, or going around with the judiciary, which is 0 14 very important.
15 When I went on, five of the eight commissioners
16 were federal judges. Congress then decided that was too
17 many federal judges and changed the law, unfortunately,
18 to mean that there could only be three, which is too bad,
19 because the judges have this hands-on experience with
20 these guidelines. Because the sentencing policy doesn't
21 exist just in theory, the world of theory. We wanted to
22 go out and meet with judges everywhere and see if they
23 perceived certain problems that we should address, and it
24 was a very important constituency.
25 I guess that's enough. I mean it gives you a 481
1 sense of -- the Commission itself meets twice, two days a
2 month, usually in Washington. And then you have these
3 other hearings that you set up, or these other meetings
4 with judges, or you're asked, I was asked to speak at
5 many different seminars and so on. The only good thing
6 about that is that you become in the elite group of your
7 airline because you have to do so much traveling.
8 MS. BRABBIT: Tell us how you balanced this
9 really full-time job with your other duties.
10 JUDGE MURPHY: It says in the statute it's
11 a full-time job, but I thought, well, when they wrote
12 that, they were writing it at the time that the
13 guidelines were, the whole system had to be created.
14 Unfortunately, it turned out to be a full-time job, and
15 my colleagues were wonderful, they gave me some breaks
16 and I didn't sit quite as many days as the other ones for
17 oral arguments, and I had less of the screening panel and
18 the ad panel at the beginning. I think later I got some
19 of that back, but I couldn't without their support it
20 would have been impossible. But even so, it was
21 extremely, extremely difficult, because you had to give
22 up everything else basically, so you didn't have any free
23 time.
24 MS. BRABBIT: How did this opportunity come
25 about? 482
1 JUDGE MURPHY:. Well, I didn't regard it as
2 an opportunity, Lisa, I really regarded it as a weight
3 falling upon me. I don't know if I told you about this,
4 but my father was dying in June of 1995. Can this be --
5 I think it is. I ran this out right now, whether it was
6 1996, but I think it was 1995. And the reason I mention
7 that is because that was just such a very, very difficult
8 period for me. I was really close to my father, and he
9 had such a struggle to die. I got this call from the
10 White House, whether I would be willing to go on the
11 Sentencing Commission. And it was such a surprising
12 thing, and for the reason that will become clear in a 13 minute, just amazing. \C) 14 I laughed out loud, even though I was just so
15 beaten down, like you are when you're going through a
16 very difficult time. And I said, "But I declared them
17 unconstitutional," and the person on the line in the
18 White House Counsel's Office just dismissed it and said,
19 "That doesn't matter." And it was just so amazing to me,
20 because at the time that I declared them unconstitutional
21 in the '80s, it was very, very -- I was one of the first
22 judges that did. It was very, very controversial. And
23 here, you know, it was no matter. So I said, well, you
24 know, let me think about it. And I thought it over and I
25 knew that they were having a hard time getting someone 0 483
1 that could get past Congress, because Congress really
2 cares about sentencing. They're always afraid somebody's
3 going to be too, too liberal, too -- or whatever they're
4 thinking. The reason I think that I came up is because I
5 had just gone through, in 1994, my hearing, and they had
6 been so impressed when I had my little practice session.
7 And then, of course, I just got a puffball question at my
8 Senate hearing so I think that just sailed through, so
9 they thought, well, here's somebody that is all ready to
10 go.
11 So I thought about it and I thought, well, you
12 know, they needed -- if I hadn't been so tired out and 0 13 run down because of this period with my father dying, I 14 think I would have declined. It seems strange. So I
15 called them back and I said, well, you know, it's nothing
16 that I would be picking to do but if you need me, if you
17 can't get somebody else through, I would be willing to do
18 it. Then I didn't hear anything more from them. And
19 from time to time I would hear that so and so was going
20 to go on the Sentencing Commission, so and so. I knew a
21 federal judge that had a lobbyist working for him that
22 was trying to get on it, a judge in the Eighth Circuit
23 that was trying to get on. He had a lobbyist that was
24 working on his behalf, and I thought, well, more power to
25 him. 484
1 So then in 1999, I had this spinal surgery, I
2 had a cyst on my spine and I had a -- no, I think it was
3 I 9 8 • I'm a little fuzzy on these years because I haven't
4 looked it up for this purpose. It had to be '9B, because
5 I actually was sworn in in 1999. It would have been '98
6 that I had the surgery. They took out some bones from
7 the spinal system, too. So I came back and I was at home
8 recuperating, and I just felt like I didn't have a back.
9 Somebody called from the AG's Office and they said, well,
10 are you still interested in the Sentencing Commission?
11 And there again, I laughed out loud. I mean after, you
12 know, this was three years later. I said, well, I 13 haven't given it a thought. And then they talked about C) 14 being the Chair, the possibility of being the Chair, and
15 I said, well, you know, I can't, I just had this sur9ery,
16 I can't do anything. And they said, well, it's going to
17 go through in just a couple of months here and we've got
18 the people lined up and all we need right now is a form,
19 you know, fill out something saying that they can look at
20 all your tax things. I said I can't even go to my office
21 to fill out forms. And, of course, they're horrendous.
22 It's worse than being a federal judge as far as forms go.
23 You have to have a higher security clearance.
24 Anyway, Marilyn brought something to me and I
25 signed this little thing. I consulted with a good friend 485
1 of mine, a monk that I may have referred to before, and
2 he said go for it. If he hadn't said that, I don't think
3 I would have, because there I was with no back. I had
4 such misgivings. Well, nothing happened that fall. They
5 had the people they thought all lined up and then the
6 Republicans changed on who they wanted. And so the short
7 answer is that we actually had our hearing in November of
8 1999, which was fortunate, bec~use by then that might
9 be the day that I, we were sworn in shortly after, but
10 anyway, the fall of '99. In fact, it was a year later,
11 in other words, from when it was going to be imminent.
12 And right up to the end they were arguing about 0 13 some of the commissioners, because it was a whole new 14 commission because it had gone completely vacant. So it
15 was a big challenge to get this going, all new people,
16 none of us knew each other. I knew Ruben Castillo from
17 when I had that baby judges' school I was in charge of,
18 but didn't know him that well. There you were with all
19 this group to pull together, and up to the last minute
20 they were arguing somewhat about who would be the vice
21 chairs and who would get two years, who would get longer
22 periods, because they had to stagger the years; some
23 would get six years, some four-year terms, and some
24 two-year.
25 MS. BRABBIT: Were there eight 486
1 commissioners? 0
2 JUDGE MURPHY: No, there's seven. If I
3 said eight, that was wrong. Seven.
4 MS. BRABBIT: Okay.
5 JUDGE MURPHY: So five judges. That's
6 seven voting commissioners.
7 MS. BRABBIT: Do you remember, Judge, what
8 the gender split was?
9 JUDGE MURPHY: Of course. I was the only
10 woman. -I say of course. It~s the same as in District
11 Court. It's the same as Eighth Circuit. There had been
12 women on the Comission before. We talked about Judge 13 Deanell Tacha, another distinguished judge, she served 0 14 her six-year term as a commissioner. And ih that first
15 Commission there was a woman who was a sociologist, and
16 another woman I think of as a professor of some sort. I
17 don't think there was a woman lawyer in that first group.
18 But later there was Julie Carnes who went on as, when she
19 was an assistant U.S. attorney, and then she became a
20 district judge. She would have served at least part of
21 the time that Deanell Tacha was there.
22 Now there are two. A woman was put in to
23 replace me when I resigned, and there's another woman
24 now, so my years were -- but we had a Hispanic, we had a
25 black, four Democrats and three Republicans; Congress 0 487
1 balancing us very carefully, you know.
2 MS. BRABBIT: And you served until?
3 JUDGE MURPHY: 2004.
4 MS. BRABBIT: Would you like to capture
5 some of the highlights or low lights of this?
6 JUDGE MURPHY: Well, you know, it was very
7 challenging. I loved the whole work with Congress. I
8 loved, you know, figuring out what the agency really
9 needed to do better and more than they had done, what the
10 needs were, listening to Congress at the same time. And
11 then going back and selling, on the Hill, the idea that
12 there was so much that needed to be done because of the 0 13 years that the Commission didn't exist, that we needed to 14 have a much greater budget than there was before it got
15 cut back because there was more work and more
16 responsibility, and being successful with that process.
17 So, you know, once it gets built up it's not
18 that hard getting it continued. So I feel very good
19 about that, wielding this group, working with the group
20 to get them to come together so that we would have almost
21 always unanimous decisions that would go to Congress.
22 And there's a certain, you know, a lot of these people
23 had been political at one time, and getting them to, you
24 know, there's always some suspicion, you know, of others
25 and so on, getting this group to work together. 488 C) 1 And we had a lot of change because at first we
2 had a Justice Department that was under the Democrats.
3 Then, of course, when George Bush was elected there was
4 sort of an interm period and they put somebody else in as
5 the liaison to the Sentencing Commission, and you began
6 to see Justice coming up with quite different values and
7 agenda, and then they kept changing. And that was
8 difficult, continuing to have, there were quite a few
9 nonvoting members from the Justice Department, and so you
10 had to be working with a dif-ferent g-roup all the time,
11 but we always were able to work out a working
12 relationship but it's just much harder, as you might 13 imagine. 0 14 I feel very good about what we did with crack
15 and powder, and when Congressman Sensenbrenner was head
16 of the House Judiciary Committee he was very suspicious
17 of the judiciary. Congress took a harder line about how
18 they were going to create some of the guidelines
19 themselves in the first instance, and that set up a more
20 difficult working environment. It was a challenge, and
21 the committee wanted to get that information on
22 individual judge's sentencings. And the GAO they
23 wanted data on a narrow group of people, and GAO said,
24 well, they thought it was appropriate to do a much larger
25 area. So, anyway, we got GAO arriving on the doorstep 0 489
1 wanting all this data, which certainly they're entitled
2 to, and Congress is entitled to the data, too. But
3 you've got to assemble it and you want to be sure that
4 it's going to be correct and how best to respond to this.
5 It's like, you know, I'm sitting here working on
6 my cases, or maybe I'm on the bench hearing arguments and
7 you get an emergency call from the director, the Staff
8 Director asking, what do we do? So these are just little
9 examples of how you, or when you get called over to the
10 Hill, you've got to, very short notice you've got to drop
11 whatever you're doing. You have to come- up with a
12 reasoned response on whatever the thing is about. So 0 13 there were many, many challenges. 14 I feel good about none of our guidelines were
15 overturned; they became law. Congress, I think,
16 respected what we did, even if they didn't do what we
17 necessarily wanted them to at times. I feel we really
18 built back a lot of goodwill with the judiciary. Every
19 letter I got, or phone call, I always returned from any
20 judge. And when I first started, I was going to write
21 this letter to Judge X, who I knew was a contentious
22 fellow. I had dealt with him in other organizations, and
23 the Staff Director said, oh, don't bother with that, he's
24 just a nut, he's just always mad. I wrote to him and
25 answered his, everything that he said, explained whatever 490
1 the problem was. Sometimes it led to improvements on our 0
2 own. He became quite a fan of what the Commission was
3 doing and so on, so I feel good about all of that.
4 We had a hearing out in Rapid City, South
5 Dakota, and I feel that was a very valuable experience
6 for all of us. Unfortunately, trying to deal with
7 sentencing for Native Americans is not an easy fix. We
8 did work out some helpful things in respect to, with the
9 Bureau of Prisons, we made some guideline changes as a
10 result of those hearings. But that was a very meaningful
11 experience, and enlightening for those -- the rest of the
12 Commission had never had that much to do with Native
13 Americans. And at the last minute of our hearing, you
14 know, where the elders were not sure that Native people 0
15 should come, I was asked to meet with this one critical
16 elder, and she made everyone come.
17 And then our corporate program, I know that
18 Attorney General Ashcroft expressed gratification of what
19 we had done in response to Sarbanes-Oxley and corporate
20 sentencing problems and the .corporate guidelines. I feel
21 good about that. It was a fascinating experience.
22 MS. BRABBIT: Judge, during your tenure
23 from '99 to 2004, here you are, the only woman, you know,
24 working with a group of talented men. Can you give us
25 some insight or a comment about perhaps other women u 491
1 leaders that you worked with or what your observations
2 were about women in high-ranking positions at that time?
3 JUDGE MURPHY: Well, I should start with
4 the Commission itself, because the staff is extremely
5 important, as you might imagine from all of this. And
6 the person who was in charge of drafting was a woman, a
7 very, very sharp woman who now is the Staff Director of
8 the Sentencing Commission. The woman that I worked with
9 on the budgeting and so on, that person at the Commission
10 was a woman. As a result of some, you know,
11 dissatisfaction in this area of the staff that did all of
12 the tabulating and keeping track of all the sentencing 0 13 data and so on, had been in sort of a walled-off area. 14 Most of the minorities worked in that section, and they
15 were dissatisfied.
16 I guess this is maybe the single, greatest thing
17 that I feel good about. This is a little detour here.
18 We took down that wall, and I got some advice from an
19 attorney, an experienced attorney about the best way to
20 deal with this group of employees, and all of that
21 advice. At first they didn't really trust us and didn't
22 want to talk with me, but we took the wall down, we got
23 new furnishings. We made one of them the head of that
24 department, and that was an African-American woman. And
25 I feel so good about the way that whole group of 492
1 employees was empowered and felt like they belonged to n
2 the whole operation.
3 Anyway, there's some very good women in the
4 staff of the Commission. Of course, if you look at the
5 people that we were dealing with in Washington, the
6 attorney general was Janet Reno, and she, of all the
7 attorney generals, we had several, was the most
8 interested in the Commission herself personally. She met
9 with the Commission and she loved talking about
10 sentenc±ng; She invited me over to the Justice
11 Department and we went up and, you know, there's a
12 wonderful, wonderful room that the attorney general has. 13 It's got wonderful paintings on the ceiling and so on, 0 14 and we sat there and she showed me all the letters about
15 Elian, you remember the Cuban boy, she was very taken up
16 with that whole thing, but she liked to talk about policy
17 and so on, and I think, you know, this was a
18 woman-to-woman thing. It was very meaningful, and she
19 was very supportive of what we were doing, and she had a
20 very high person in her administration there that she had
21 as a liaison, and he was very, very helpful there,
22 Kirkpatrick, he was a professor, and we're just coming
23 back to the Justice Department for this purpose, to
24 relate to the Sentencing Commission.
25 There were a lot of woman prosecutors, and the 0 4 93
1 one that I'm thinking of right offhand is a woman that
2 was the U.S. Attorney in the Southern District of New
3 York. Because, of course, when we're dealing with white
4 collar crime, that was the main locus for the huge cases,
5 and she was a very, very impressive figure. But we also
6 saw a lot of the assistant U.S. attorneys from various
7 places, and U.S. attorneys, women. Of course, this was
8 before Nancy Pelosi was the Speaker, so we were dealing
9 with men in that position.
10 Dianne Feinstein was on the Judiciary Committee
11 in the Senate, and that was an important person, thinking
12 about women. Those are the ones that come to my mind 0 13 right away. 14 I just wanted to make sure. I mean I do think
15 there's some significance in finding out when the first
16 woman did jobs, and so when I became Chair of the
17 Sentencing Commission in 1999, I was the first woman to
18 hold that position, and still the only woman, because my
19 successor is a man.
20 I think we were going to talk about my time on
21 the Board of the Federal Judicial Center. I wasn't the
22 first woman, I was the second woman to be on that board.
23 When Chief Justice Rehnquist was the chair of that board,
24 it was something he took a great interest in. It was a
25 very small board, and he really approved each person. 494
1 And the first woman to sit on that had been, there 0
2 weren't any others when I went on, but had been Judge
3 Cornelia Kennedy, who was one of the first district
4 judges in the country, and one of the Court of Appeals
5 judges. She had been chief judge in the Eastern District
6 of Michigan, and then she went on the Sixth Circuit. And
7 I think I mentioned earlier that I had followed her in
8 another situation where she would have been the first
9 woman to chair the ABA Judges Advisory Committee on
10 Professionalism and Ethicst and then ~-succeeded her in
11 that job.
12 All judges, federal judges, love the Center 13 because it just is a helping hand. It has wonderful 0 14 publications, it does research, has manuals on various
15 areas, very good federal judges' trial handbook, but this
16 is what judges really love, it has educational programs.
17 Some of them are online now, or by television hookups and
18 Internet and so forth, but the most favored ones are the
19 in-person seminars, many of which have traditionally been
20 held in nice places.
21 So the Federal Judicial Center is an agency that
22 all federal judges like, and it's quite an honor to go on
23 that board. It's a board of seven people, and the head
24 of the Administrative Office, the director of the AO was
25 a member, and the Chief Justice, so there aren't many 0 495
1 judges on it. But the fact that it's a small board like
2 that, you really do have a good interchange.
3 At the time that I was on it there was a
4 bankruptcy judge, there was a change so that there was a
5 bankruptcy judge, and I think since then they have a
6 magistrate judge representative. But at the time I was
7 there the others were appellate judges. I think three
8 appellate judges and two district judges, if I'm correct.
9 One of the things that I accomplished there, I'll talk in
10 a more general way about it next time, but I shot myself
11 in the foot unwittingly.
12 While I was on the board, or maybe before I was 0 13 on the board -- I'm trying to get the chronology. Yeah, 14 it was before I was on the board. There was a wonderful
15 meeting in Washington, D.C., not that I was able to
16 attend since I was a lowly district judge, for all the
17 circuit court judges in the country, and there were only
18 about 111. Now, you know, it's changed as judgeships
19 have been created. The rest of us saw the program and it
20 looked just terrific, and it was in Washington so that
21 you could go to the Supreme Court, take advantage of a
22 lot of the things that you couldn't normally. And while
23 we were able to go to programs, so could the circuit
24 judges when they had these workshops on particular areas
25 or for your circuit and so on. So this seemed really 496
1 like an unfair thing, you know, and all of the Supreme
2 Court justices, I believe, went to that. It was a big
3 deal because it had never been done before.
4 So I said, well, you know, this isn't fair, the
5 district judges should have something like this. And the
6 chief justice looked and said, oh, there are so many
7 district judges, you know, with this look of displeasure.
8 Well, eventually while I was on the Board we did
9 adopt the idea that we would have these for district
10 judges, -but you would' have -a couple of locations because
11 you wouldn't be able to have them all at one time because
12 they would be too unwieldy. The way I say I shot myself 13 in the foot is then I went on to become a Court of 0 14 Appeals judge in the meantime. They almost never have
15 those Washington ones just for circuit judges anymore, or
16 they don't have anything for circuit judges. Although
17 there was one last year that was held in conjunction with
18 the National Appellate Judges Conference, there were two
19 days, but that was the exception. Generally they don't
20 have that anymore. But every year they have the three of
21 them for the district judges. So how do you like that?
22 Because it's nice to get together with your colleagues
23 and talk about mutual problems and so on. So I'm joking
24 here, but, yeah.
25 Anyway, district judges love these meetings, and 0 497
1 they typically have them, well, now they probably don't
2 have them in New Orleans, but they typically have one in
3 Seattle, one in New Orleans, one in Washington, and
4 people could choose which one they wanted to go to.
5 MS. BRABBIT: Fun.
6 JUDGE MURPHY: We'll talk more generally
7 about it probably later.
8 MS. BRABBIT: Okay.
9 JUDGE MURPHY: You asked me about the
10 Sentencing Commission, and there, you know, I really have
11 to take myself back to remember all of the things, but
12 right at the beginning the other judges wanted to have a
13 fancy swearing-in, so at the very beginning I swore -- I
14 think I may have mentioned this before. I swore all of
15 them in, the rest of them in, because you had to get
16 started. And I asked Judge Castillo to swear me in since
17 we had that little, prior contact.
18 But they wanted to have a big to-do and the
19 Commission didn't have a budget for much of a to-do, and
20 certainly not for anything that would have alcohol or
21 anything like that. But they had the idea that they
22 would like to get sworn in at the Supreme Court, so I
23 approached the Chief Justice, of course whom I had had
24 dealings with when I was president of the Federal Judges
25 Association. I mean this was one-to-one dealings in the
' ' \____.,J 498
1 Federal Judicial Center and so forth. I worked with Jim 0
2 Duff, who is now head of the AO but was then
3 administrative assistant to the Chief Justice. He agreed
4 to swear us in in the Supreme Court chambers, and they
5 agreed to have the reception there. Our staff came up
6 with some nice-looking invitations, and so it was a very
7 nice ceremony. The Chief Justice came out and presided
8 over it and Strom Thurmond, Senator Thurmond came. They
9 were hoping others, like Senator Leahy was going to come
10 but, you know, there are things that take them away. But
11 what always meant a lot to me was Justice O'Connor and
12 Justice Ginsburg came, and Justice Thomas. Justice
13 Thomas then was an Eighth Circuit justice, so these were
14 all -- and Michael O'Neill, one of the commissioners, had
15 clerked for him. That probably was his major thing, but
16 he also was an Eighth Circuit justice. But, you see, to
17 somehow have their pictures taken and have all this set
18 up and turn out, it was very nice, but it wasn't easily
19 accomplished. But it made a big difference, because they
20 really liked that, they felt good about themselves. It
21 was a nice start for us. That hadn't existed in that way
22 before.
23 MS. BRABBIT: A beautiful touch.
24 JUDGE MURPHY: So there are a lot of things
25 that come up, you know. CJ 499
1 MS. BRABBIT: Any other memorable
2 interactions with Justice Rehnquist?
3 JUDGE MURPHY: Yes, I may have talked about
4 the first meeting of the Federal Judges Association when
5 the Chief Justice came to our evening dinner. I think I
6 told you about he got up on a chair. He believed in
7 judge's pay, and so he was a big supporter of the Federal
8 Judges Association because it was the leader in trying to
9 get compensation, a just compensation, although some of
10 the original founders had been litigious, sue the United
11 States. And while I was president they were wanting to
12 sue more on some disadvantages and the impact of the C) 13 social security tax. All of a sudden, judges were 14 subject to social security, which they hadn't been
15 before, and they wanted to sue.
16 They wanted to sue in some other, oh, there
17 wasn't, pay wasn't being increased by Congress. I
18 believed that at that time that would be
19 counterproductive, because on their previous suits they
20 had lost a lot of goodwill in Congress, so he and I saw
21 eye to eye on that. I assured him that we did. And we
22 wouldn't have gotten the big pay act of 1989 if we had
23 sued on these other things. The association itself never
24 sued, you understand. It was individual judges, but they
25 wanted to have the backing of the association, so to 500
1 speak.
2 MS. BRABBIT: You, at one point in time,
3 shared a story with me about Justice Rehnquist and his
4 trend for hiring individuals who played tennis.
5 JUDGE MURPHY: Yes. He was very open about
6 that. He loved playing tennis, and so that was a feature
7 that he looked at when he was hiring clerks. It became
8 apparent that was also true in selection of the judges to
9 serve on the Federal Judicial Center board. One time we
10 were in Ashland, North Carolina for a meeting, and there
11 was a social hour and somebody was teasing, it may have
12 been Judge Wilkinson himself, also such a -- some of the
13 people I got to know on that board were wonderful. Jay
14 Wilkinson, a wonderful judge on the Fourth Circuit, 0
15 former chief judge, may have said himself about how the
16 only reason he was there was because he played tennis.
17 And then the Chief Justice, who might have had a drink at
18 that point, said, oh, you know, Diana is an affirmative
19 action appointment. I laughed, because I knew it was
20 funny, because I knew he meant because I didn't play
21 tennis. But there were some other people standing there
22 that were a little, they didn't know what to do until I
23 laughed and we explained what it meant.
24 MS. BRABBIT: Thanks for sharing that funny
25 story. Judge, thank you for today. This will conclude C) 501
1 our taping session for August 23.
2 (End of session.)
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25 502 () 1 (April 25, 2008.)
2 MS. BRABBIT: Thank you for reconvening the
3 biography. When we met last, we had finished with a fun
4 story about Justice Rehnquist, and we were also moving in
5 chronological fashion with some of your other activities
6 and involvement. Would you like to pick it up with that?
7 JUDGE MURPHY: Well, I just want to say
8 something more about Justice Rehnquist. The Federal
9 Judicial Center board is very small, I think it was seven
10 people at the time. And the chair of it was the chief
11 justice, so this was something that he cared about who
12 was on the, on that board, and it always went away to
13 some nice place for one weekend meeting, and so a tennis
14 ability was highly prized. Also the chief justice loved 0
15 sing-a-longs, and he had a big sheaf of songs that he
16 would choose from depending upon the mood. And so Judge
17 Eddie Becker, who is also since deceased, former chief
18 judge of the Third Circuit, was appointed for a special
19 skill. He played the piano by ear, he could play
20 anything and it was perfect. He would play and the rest
21 of us had to sing; the chief with great joy and maybe
22 some of the others. But I'm not, I love music but I'm
23 not fully skilled at making it. So, you know, I
24 certainly got to know Judge Becker well on that, and some
25 other people. And the one that I prize the association 0 503
1 with is Judge J. Harvie Wilkinson, former chief judge of
2 the Fourth Circuit. Wonderful man and such a gifted
3 judge and real philosopher and such a courteous man, who
4 I just really enjoyed. I was chair of the newly created
5 Education Committee, and he always refers to me, he was
6 on the committee, and he always refers to me as his
7 chairman. So, you know, that's one of the entities. I
8 don't know what I said about the Center, but the judges
9 love the Center because it's such a source of help for
10 them. It's a source, you know, it's a place that puts on
11 conferences that they love to go to and see the other
12 judges, and also get updated on all the different kinds 0 13 of legal issues that are constantly changing. And its 14 publications are wonderful. And, of course, now it's
15 really in the high-tech area, too; a lot of it is
16 available online. Over the years I've been involved in
17 panels and just was this last year on the use of
18 technology, and they came out and interviewed me a few
19 months ago. I haven't watched what's on the Net now, but
20 it's about the use of technology, whether it's for
21 hearing arguments in the Court of Appeals or for judicial
22 administration matters. And, I mean, the availability of
23 having meetings by videoconferences, how wonderful that
24 was, particularly the area that I had experience with and
25 was talking about. Although I had also, as you know, had 504
1 the experience recently of participating by old-fashioned 0
2 telephone in the hearings of the Eighth Circuit on oral
3 arguments when I broke my hip and was in the hospital for
4 a long period of time. So for two different months,
5 actually it was a total of four months, now that I think
6 about it, I participated in oral argument by telephone,
7 and it allowed me never to miss any of my obligations.
8 And it worked very well because the setup was very good,
9 so that, you know, lawyers could hear me and I was able
10 to participate actively so it was a real presence; not
11 just where it sometimes happens where a judge would
12 listen to the arguments after the fact and participate in 13 the decision. 0 14 Of course, the Second Circuit is the one that I
15 know of that holds videoconferencing the most because
16 I don't know if I've talked about this before -- they
17 allow prisoners, prose prisoners to argue before the
18 court, but only by videoconference. So they give them
19 ten minutes and they've got it set up so they're in the
20 prison in some appropriate room, and the judges are
21 wherever they happen to be sitting, most likely in New
22 York.
23 MS. BRABBIT: Judge, you mentioned before
24 we actually started recording that you had also been
25 involved in other volunteer capacities. 0 505
\ 1 JUDGE MURPHY: I think I already told you,
2 excuse me, but my mind wanders around the FJC things.
3 MS. BRABBIT: That's fine.
4 JUDGE MURPHY: I'm sure I told you about
5 having the experiences of having these new district
6 judges and one circuit judge for a week, myself, in
7 Denver. I think I talked to you about that.
8 MS. BRABBIT: That's not ringing a bell for
9 me. I mean did you have somebody shadow you?
10 JUDGE MURPHY: No, no. I' 11 talk about it
11 a little bit in case I haven't covered it because it was
12 a significant experience. 0 13 MS. BRABBIT: Okay. 14 JUDGE MURPHY: The FJC has new judges
15 school, so to speak, and when I became a federal district
16 judge -- they didn't do this for district judges. When I
17 became a district judge I went to Washington for a week
18 and it was a wonderful experience, and I know I told you
19 that I think one of the people was impeached that was in
20 our class.
21 MS. BRABBIT: Yes, you did.
22 JUDGE MURPHY: But, anyway, that was a very
23 good experience for me, and I met Hu, I told you he was a
24 mentor and so forth. But anyway, after a while they
25 decided to do it a little bit differently, and they did 506 () 1 have these sessions, but they didn't have them as often.
2 So what they would do is they would have a district judge
3 go off with a group of new judges and they would spend
4 the week together, and the district judge was doing it,
5 and staff from the Center or from the Sentencing
6 Commission would come, and you would go through all these
7 different aspects of judging. And so you were the mentor
8 judge, so to speak, and you were the leader of this week,
9 so it's a big task. On the other week they have a bunch
10 of professors that are coming in and everything. This
11 was not the same, but it was talking about all the
12 different aspects of judging; more how to as opposed to 13 what the law was on these issues, except certainly you 0 14 get into that, too.
15 But, anyway, I think I did tell you this,
16 because before I got there to Denver, it was the Brown
17 Palace Hotel, I got the resumes of the people. There
18 were 14 new judges, and I looked at them and I was really
19 impressed with the district judges, the quality of
20 district judges that Clinton was appointing, because
21 these were really outstanding -- fancy schools, honors,
22 outstanding practice experience and so on, and so I was
23 really looking forward to meeting them. In they come,
24 and of this group, only three were white.
25 MS. BRABBIT: You did mention this before. 0 507
1 JUDGE MURPHY: Yeah, yeah, it was really,
2 it was really a wonderful thing. Because I had been able
3 to tell that one judge was, you know, likely to be
4 African-American because of the affiliations she had and
5 it was in her resume, but the other ones, you know, it
6 was color-blind.
7 MS. BRABBIT: Do you remember the gender
8 ratio; how many were women, how many were men?
9 JUDGE MURPHY: There were more men, but
10 there were a considerable number of women, and of the
11 three that were white, one was Judge Frank Hull, woman,
12 who became -- I know I told you this -- she was a 0 13 district judge for a very short time, was appointed by 14 President Clinton to the 11th Circuit. One was Paul
15 Friedman, man, but a very distinguished district judge in
16 the District of Columbia. And the other one was an
17 older, white gentleman who was, he must have been, I
18 think, about 64, and he had been appointed to the
19 district court in the Eastern District of Michigan. This
20 was unusual, you know, because he wanted to take senior
21 status. At that age you could, after you had served for
22 ten years, but that's a long time for some people to
23 serve. Anyway, those were the white ones.
24 MS. BRABBIT: Are you still involved in
25 these judicial activities with the new judges? 508 0 1 JUDGE MURPHY: No, no, I'm not, but I was
2 so glad to have done it before I went on the Court of
3 Appeals because they don't have these classes for
4 appellate judges.
5 MS. BRABBIT: Okay.
6 JUDGE MURPHY: They let that go to the New
7 York University summer program for appellate judges. So
8 this was a real special deal to have your group, and
9 they've been so, I know I've bragged about them, they
10 have turned out to be very good, that group. And one of
11 them was Judge McKee. He was there for the sentencing
12 part. He was the judge on the Third Circuit, a new
13 judge.
14 MS. BRABBIT: Do you know, Judge, by
15 chance, if when they had this training for the appellate
16 process at NYU, do you know if they addressed gender
17 issues and training issues at all?
18 JUDGE MURPHY: I would suspect they may
19 because of some of the women who have been involved in
20 it. My friend, Harriet Lansing, is on that faculty.
21 I'll ask her when she drives me out to St. John's in a
22 week for our board meeting. I would suspect so, but I
23 don't know. I hope I remember to ask.
24 I know that we're going to talk about opinions
25 that I either remember or feel particularly good about, 0 509
(\ 1 and one of them was just argue·d in the Supreme Court, so
2 at this point I don't know how it's going to come out. I
3 think I told you about how one of the areas I'm
4 fascinated in is Indian law. I was interested in Indian
5 history, you know, before ever going into law, and our
6 circuit does do a lot of Indian law. I've been lucky to
7 be on the panel many times and get the cases. You know,
8 some of them are quite landmark cases; certainly the
9 Mille Lacs case, I talked to you about that, I think.
10 But this was an Indian case, too, and this was a
11 different kind of case. This was a question about the
12 jurisdiction of the tribal courts, and the case involved 0 13 a bank, Plains Commerce Bank, which had made loans to an 14 Indian-owned corporation on the reservation, Cheyenne
15 River Reservation, I believe, in South Dakota. They were
16 in a ranching operation, so the loans were related to
17 this land on the reservation. The bank went onto the
18 reservation to arrange their business with the Longs and
19 the Long Corporation, and part of the arrangement was
20 that the tribal council would assist in getting BIA
21 approval of money that would allow the loans to be put
22 together. There was a freezing winter where it was much
23 colder than usual, and a lot of snow, and many cattle
24 died, these are free-range cattle, and the Longs couldn't
25 make their payments. They tried to work something out 510
1 with the bank, were unable to, and the bank foreclosed,
2 and then made a deal with whites on more favorable terms
3 than they had been willing to give to the Longs. The
4 Longs brought suit in the tribal court raising a contract
5 issue, and then also a discrimination claim, and the bank
6 didn't raise an objection to being in the tribal court.
7 There was a jury trial, and they would have had the right
8 to request white jurors under the procedures of the
9 court, but they didn't. In the end there was a verdict
10 for the Longs that was then appealed to the tribal court
11 of appeals but the bank lost there. Then the bank
12 brought a case in federal district court in South Dakota, 13 and they were asserting that the tribal court didn't have 0 14 jurisdiction. The district court ruled in favor of,
15 well, they ruled against the bank, and then it came up to
16 the Court of Appeals, and I wrote the opinion, which also
17 was against the bank but with a fuller discussion about
18 the jurisdictional issues.
19 There were other issues, too, that the bank
20 raised that were interesting issues, but the Supreme
21 Court took cert. And one of the judges on the panel, you
22 know, didn't think there was jurisdiction under the
23 Montana factors, but he assigned the case to me, and we
24 really worked hard on that opinion. And he said, you
25 know, the Supreme Court is going to take this because, (~) 511
1 you know, all the banks are going to be concerned about
2 this. But he, after he saw the opinion, he concurred.
3 That's one of those good things where you really work
4 hard to get somebody and you're able to, and he was a
5 very, very fine judge. Anyway, the Supreme Court did
6 take cert, the bank filed for cert and the Supreme Court
7 accepted it, and the argument was about a week ago
8 Monday, roughly ten days ago. I was in court in the
9 morning while it was being argued thinking, oh, what's
10 happening here, you know, and then we got the -- it's
11 wonderful how the proceedings are available so quickly
12 now. So as soon as we got off the bench, boy, I read 0 13 that with such great interest, and it was so interesting 14 to me. I had seen the petition for cert and the
15 responses, and there were a whole lot of amici on both
16 sides, the usual suspects on both sides. And, you know,
17 some were raising standing issues, and there were all
18 kinds of different arguments. What interested me most
19 was the one that was on the merits, and so it was
20 absolutely fascinating listening to the Supreme Court
21 questions. And, you know, I say this in guarded fashion,
22 but it seemed to be favorable for our opinion. But, you
23 know, the chief justice was a very active questioner. I
24 think Justice Alito was certainly inclined to go with the
25 bank. But, I don't know, we'll see, it will be very
\ / '-.____/ 512 0 1 interesting. And as I say, it was absolutely fascinating
2 to see, you know, what issues the advocates, the
3 solicitor general was on the tribal side and filed a good
4 brief. So, anyway, it will be very interesting to see
5 how that turns out.
6 But whatever way, it will have advanced the
7 issue of tribal court jurisdiction. I'm hoping that, and
8 some of the justices were talking about, you know, the
9 fact that the court thinks it's important to support
10 tribal courts. And so whether this will meet the test of
11 the Montana factors, there were even some questions
12 thinking maybe, it was decided by me on the first Montana
13 factor, but there was some talk even about the second
14 one, under both, which would be quite a significant ·o
15 change. Anyway, we'll see what happens.
16 Then you were talking about that we should talk
17 about opinions, because I had said that it was important,
18 too, and I said I'd really have to think about it ahead
19 of time because this one is fresh in my mind because of
20 the fact that the argument was last week. Did we talk
21 about Green v. Dillard's, which they denied cert on in
22 December?
23 MS. BRABBIT: No. Because the last time we
24 met was August '07.
25 JUDGE MURPHY: Okay. Well, let me talk 0 513
1 about that one a little bit.
2 MS. BRABBIT: Sure.
3 JUDGE MURPHY: Green v. Dillard's is a case
4 that arises under Section 1981. There also was a claim
5 by the plaintiff on -- no, on this case it's not, there's
6 not a state law claim. It's just a pure Section 1981.
7 It's a black couple who went to the Dillard's store in
8 Kansas City, Missouri to buy certain things, and
9 Mrs. Green wanted to get a handbag, she wanted a
10 wristwatch, there was another item she wanted that's not
11 in my memory right at the moment. And they went in and
12 there was, went to the department where the purses and 0 13 the other item, it was a billfold, I think it was a 14 billfold, where the purses and billfolds were. There
15 were two clerks there; one was busy with someone, and
16 then there was another woman standing there with her arms
17 crossed. They went up to her and said, "Could you help
18 us," and she said, "No," and they couldn't believe it. I
19 mean there are jokes about driving while black, and there
20 are now jokes about shopping while black, too. But,
21 anyway, they couldn't believe this and they were just
22 dumbfounded. They pursued it a little with her but she
23 just remained stationary there. The other clerk said,
24 "Well, I' 11 help you as soon as I'm done with this
25 customer." So they waited. When she was done with the 514 C) 1 customer, then she helped them. And Mrs. Green bought a,
2 picked out a purse and a billfold and they, I think they
3 came to about $500. It doesn't matter exactly what the
4 amount is, but theybought them, and they were going
5 to -- Meanwhile, the first clerk is standing there the
6 whole time. And when they say that they want to buy
7 this, she says, in this loud voice, "How are they going
8 to pay for all that stuff?" And the second clerk is
9 trying to ignore this bad stuff, and so she takes a card
10 from them and goes over to ring it. up. And Mr. Green,
11 who is a police officer, as I recall, but he's some kind
12 of a person with some standing, you know, he goes over to
13 the first clerk and he says, "Look," he says, "I can pay
14 for all of this, look." He opens up these credit cards 0
15 that he has, and he says what he does for a living. And
16 this first woman says, "Platinum, huh?" And then she
17 says, "Fucking niggers."
18 Now meanwhile, Mrs. Green had walked over and
19 said that she wanted to buy a watch, and she had gone
20 over to this case, it was a locked case, and she pointed
21 out the watch she was interested in, and the clerk took
22 out the watch. But when the Greens heard this "fucking
23 niggers, II they were so upset. They asked to see a
24 manager. And the clerk called up somebody and the
25 manager came and took a phone call while they were C) 515
1 waiting, and she started to cry while she was on the
2 phone. She hung up and she said, "That was a call from
3 some people who were here and overheard what had
4 happened." And then she said, "I'm sorry," or something.
5 But they said, "Well, we want, you know, this is really
6 upsetting, we want our money back." And so they left the
7 purse and the items that they had already purchased and
8 got their money back and they left.
9 Then the next day the manager of the store
10 called up and offered them, apologized and bffered them
11 $.20 off on their next purchase. You know, the more they
12 thought about it, the more upset they were. And so they () 13 brought a 1981 action, because 1981 gives you a right to 14 contract on an equal basis as whites without regard to
15 race, and the NAACP of the Kansas City area filed an
16 amicus brief, because these are really unusual facts.
17 There hadn't been a case like this in the Eighth Circuit,
18 which had always, the prior cases had said what the
19 elements of a 1981 action were, but they didn't say how
20 you would judge whether these elements were met, or what
21 kind of evidence you would have to have.
22 So this was a lot of work drafting this opinion,
23 and I read all the cases I could find on 1981 around the
24 country and the different standards that had been used
25 and collected them in this opinion. I knew I had to -- 516
1 in order to get this panel, especially one judge on it C)
2 had to have it grow out of our cases, which had always
3 just thrown the plaintiffs out, and set a standard.
4 Now because of the outrageous language, the
5 panel was willing to consider there could be a 1981 case,
6 and one of the judges was willing to decide it on the
7 basis of really the scope of her employment; you know,
8 the company put her out there and it was responsible for
9 her behavior. The other judge wasn't because that would
10 be a Pandora'.s box, opening a eandora's box; everybody
11 would be able to go in and sue these department stores.
12 He talked about finding a standard that you would borrow
13 from employment discrimination cases, and I looked into
14 that but I didn't think that that would fit very well. 0
15 So I went back and looked at this woman had, the
16 manager had told, when she came on the scene, said,
17 "Well, she's had trouble with this before, she's been
18 disciplined." She didn't say it was for racial stuff.
19 And then in the discovery they had found out that she had
20 had a well-paying job with a corporate, I think it was
21 AT&T, for some years and she had been let go in a
22 reduction in force, they said, and then she had started
23 working at, it wasn't Wal-Mart but it was, I think it was
24 K-Mart, and it was right around the Christmas season, and
25 they had let her go after just a short time, a few weeks 0 517
1 or whatever. So there was a, you know, possible
2 negligence ~n putting this person out there because there
3 was the uncertain, they didn't have much of a training
4 program, and there was evidence about this. Then this
5 was the way that the one judge would go, was that just an
6 agency theory wasn't enough, although it's been enough in
7 some places.
8 Anyway, the panel said, well, you know, this was
9 wrong to just throw it out on summary judgment, they've
10 made a prima facie case.
11 The first element is you have to be in a
12 protected group, no argument about that. The second one, 0 13 there was evidence of discriminatory intent becaus~ of 14 the conduct of this one person. There was also some
15 things about the manager's -- I won't go into that -- and
16 the training program and so on, but there was direct
17 evidence of discriminatory intent. There was the showing
18 of a contractual interest because these weren't just idle
19 shoppers, they had come to purchase particular items,
20 they had actually purchased two of them, and they were
21 going to purchase. Now a lot of these cases say once you
22 purchase the items you have no contractual interest left,
23 which I believe is shortsighted because there are cases
24 that say that there is a contractual interest in
25 returning the item if it doesn't fit and so on. But at 518
1 any rate, for these purposes this wasn't an issue here to 0
2 fight about because of the fact that she had intended to
3 buy the watch until this conduct interfered with her
4 ability to buy it. That's the fourth element, ~here has
5 to be interference with that contract interest. And then
6 we had to get another standard that would get the panel
7 together about what you would have to show. And we said,
8 well, you would have to actually, the interference would
9 be, you had to thwart or block the attempt to carry out
10 your contractual interest. So there was a petition for
11 rehearing. I held my breath because of the fact that
12 there was another case pending. But nobody voted to 13 rehear it, or even to request a response. And I think, 0 14 you know, the extraordinary language of ''fucking niggers"
15 and actual refusal of the one person was so striking.
16 But, anyway, then Dillard's petitioned for cert
17 and the Supreme Court requested a response and Dillard's
18 then produced a reply. It was taken up at conference, so
19 this came very close. It was at a conference in January,
20 I forget what date, January of this year, and it was
21 denied. So who knows by how much. And the other case
22 that's coming along in our court and was just heard en
23 bane last week is called Gregory v. Dillard's. That case
24 had a large number of plaintiffs, maybe there were about
25 18 originally, of blacks who were. No, there weren't 0 519
~\ I ! 1 that many plaintiffs because part of -- anyway, a number,
2 let's say there were more than a dozen plaintiffs, but
3 there were five former employees who testified, and this
4 is a Dillard's store in Columbia, Missouri, and brought
5 under 1981 and under the Missouri public accommodations
6 law.
7 The district court threw it out, the whole thing
8 out, partly on summary judgment for three of them, and 9 actually granted a summary judgment in favor of one who 10 had returned shoes, returned a pair of shoes and was
11 treated as if he had stolen them, and he had a means that
12 was as good as a receipt. It was a proof of purchase 0 13 label on the shoes. Nonetheless, they held him at the 14 store, kept him there for over an hour. He offered to go
15 home and get the receipt and they said, "Well, you can't
16 take the shoes with you." Anyway, the district court and
17 Dillard's settled with him, but granted Dillard's motion
18 for three other people. And then there was another group
19 that had come along later and joined the case, and they
20 were dismissed under Rule 12 (b) (6).
21 What was unusual, and what is unusual, because
22 this is a pending case, about this case is you have five
23 former employees, both white and black, who testified
24 that this Dillard's store had a policy of announcing over
25 the employee intercom "Code 44" every time an 520
1 African-American would walk in the store, and that the 0
2 manager of the store and his supervisor then would
3 normally trail the person themselves, and policy was to
4 follow them closely. Then one of the white employees
S testified that she had been told not to give samples to
6 blacks, or fragrance samples, because they would never
7 buy anything anyway. And there was the evidence that, of
8 the people who had been thrown out on summary judgment,
9 where they had, were trying to purchase certain things,
10 they-went to try them on and they came out Df the fitting
11 room, the manager and two security guards were standing
12 right outside the fitting room and so on and so forth. I
13 mean I won't go through all of the details. But a very
14 unusual case because, particularly because the employee 0
15 evidence about the policy. And, of course, different
16 standards for both of these, whether it's a summary
17 judgment, that's obviously a very different standard than
18 the 12(b) (6) pleading standard.
19 So the panel ruled that there had been enough of
20 a showing by the three remaining summary judgment
21 plaintiffs that the district court had erred in granting
22 summary judgment, and that there had been enough in the
23 pleadings that it had erred in dismissing the federal
24 claim. It also discussed claims under the Missouri
25 statute, because if you were going to keep the case in, u 521
1 it would make sense and judicial economy, if that public
2 accommodation statute did cover this kind of situation,
3 that you would be looking at it together. That's a
4 common way that discrimination cases are handled.
5 Obviously if you were going to throw out the federal
6 part, then you would leave it to the state courts to
7 decide about the public accommodation issue.
8 Anyway, the panel of two, Murphy writing the
9 opinion, made those decisions. In a lengthy opinion,
10 because it sets out, even fuller than Green, the case
11 law, and with Congress, the legislative history in 1981,
12 and also relies, you know, on Green, of course, and
13 there's a very vigorous dissent, and the court decided to
0 14 rehear this en bane. And Dillard's is arguing, well, in
15 the meantime, why don't you also get rid of Green. That
16 argument was the week before last. Or was it last week?
17 I think it was last week. Yeah, it was last week. It
18 was last week. So I'll tell you, I was loaded for bear
19 coming in there because I knew that, seeing the vote,
20 that it was an uphill battle, but I feel very strongly
21 about -- because if you look at all of these cases,
22 there's definitely something going on in these shopping
23 experiences in some areas that needs to be considered by
24 the courts, and so I think it's advancing the law to have
25 this explored, however the case comes out. So obviously
i I \ ,___,-'' 522 (~) 1 we'll be waiting to see the eventual opinions that come
2 out of this case. This isn't as far along, but nobody
3 mentioned Green, I mean Dillard's did not mention Green
4 at the argument. I don't think that's gcring to be an
5 issue.
6 The other case that popped into my mind earlier,
7 you know, the longer we sat on this, I mean I'm sure I
8 could keep coming up, thinking about more cases, but for
9 some reason I thought about Quick v. Donaldson. It's
10 possible that I've even talked to you about this case
11 before because this was a strange deal. It was in a
12 factory kind of situation, and there's a fellow that is,
13 that says he's not gay but was slight of build. Yeah,
14 this is the factory where they have all this "bagging"
15 that goes on all the time.
16 MS. BRABBIT: You did talk about that.
17 JUDGE MURPHY: Yeah, and at that time the
18 Supreme Court hadn't had the issue about whether
19 Title VII covers same-sex conduct, and I was the sole
20 voice on the panel that said it did, but it enderl up the
21 majority guy assigned it to me and it went through two to
22 one and, of course, got cited a lot, even by the Supreme
23 Court.
24 MS. BRABBIT: Have you had one just
25 recently dealing with gender issues? u 523
1 JUDGE MURPHY: Well, if you call abortion a
2 gender issue. Yeah, there are a lot of them, but I have
3 to tell you two things that are discouraging about that.
4 A lot of these cases aren't very good. There was one
5 where, reading it all, I was the one to suggest that we
6 not have oral argument on it because it was so, the woman
7 had done something against company policy, quite a
8 serious thing, and she was fired. Now the company could
9 have treated it in a different way, and if I had been the
10 company, I think I would have, you know. But then she
11 raised gender, age, equal pay act for past things that
12 she had never complained about, something else, I can't 0 13 remember, and tried to say that there were certain people 14 that were similarly situated that had been handled
15 differently, but it was clearly not at all similarly
16 situated.
17 So there's that one category that is
18 disappointing because people are bringing cases that,
19 either they're bringing them where there is not a good
20 basis for it, or they're not making a clear showing. I
21 can't tell, you know, which that is, because you
22 whatever comes up is what you have to decide on. But our
23 circuit is said by some to be the most conservative in
24 the country, and it has got a very strict standard. I
25 voted to rehear the case that set this very restrictive 524
1 standard, and there were some others that voted, too, but 0
2 it wasn't overturned and so that's what you live with
3 because there were really egregious facts in that case.
4 1- had one I'm really proud of involving a, well,
5 a number of them, but they're from a while ago, involving
6 women working on assembly lines. One in a food
7 manufacturing place, you know, one of these
8 meat-processing places, terrible situation to be working
9 in. Maybe I've talked to you about that, too.
10 MS. BRABBIT: What was the name of it?
11 JUDGE MURPHY: I would have to think what
12 the name of it was, but people were making male body
13 parts and women's vaginas, you know, out of the flesh of
14 these animals and sending them down the line, and they 0
15 were trying to hump the women.
16 MS. BRABBIT: This is not ringing a bell.
17 JUDGE MURPHY: This is one of these
18 meat-packing places. I would have to go back to see
19 the -- I can't think of the name right now. Very, very
20 egregious, hostile work environment and discrimination
21 and conditions and other matters for the women in that
22 plant. The other one I was thinking about right now was
23 an automobile assembly plant in Missouri. The other one
24 was in Iowa. The automobile, it involved both federal
25 and state law, I think. For sure it involved state law. 525
1 Maybe it was mainly state law as I think about it. But
2 it was seeking damages, quite an amount. You know, as
3 the years go on, it's hard to remember them exactly. And
4 this was -- why I think about this one, too, is that they
5 were saying insults and taunting things down the line,
6 making messes at her station and, you know, the reaction
7 of the other panel -- I think it was Chrysler that was
8 the defendant, as a way of finding the case, you know.
9 The rest of the panel thought, well, that's not sex
10 discrimination, it wasn't like they were making penises
11 like in the other place. But she was being treated
12 differently because of her and there were other 0 13 comments about her attire, and I don't even remember them 14 all. I think she was a black lady, too, so there might
15 have been something related to that. You know, it's hard
16 to remember the cases.
17 MS. BRABBIT: When you share these cases,
18 are you reminded in one way or another of, I'm not sure
19 of a good way to ask this, do you have a tangible or
20 probable sense of responsibility as a female judge?
21 JUDGE MURPHY: Yes, and you know yourself
22 that things have happened to you, the way you've been
23 treated, that made it harder to do your job. While I
24 never complained about it, because I learned long ago to
25 get along, in the sense of not complaining all the time, 526
1 and when you can bring up something, to bring it up, but 0
2 not every time something happens. But you can understand
3 when you've been treated in a way that is different than
4 the others are and it makes it tougher to do your job
5 but, you know, it's nothing compared to what some of
6 these people have to put up with. It's definitely an
7 issue. And you see it, it's the same way I feel about
8 the Indian cases or about these black shopping cases. If
9 you've had experiences where you have been treated
10 unfairly, it makes you more understanding about why they
11 don't feel they can then buy the goods, why they set them
12 down. It isn't like they're voluntarily returning them, 13 it is just it has made it impossible for them to feel 0 14 right about buying this item. And especially the
15 Gregory, and this other case, Green v. Dillard's, or
16 Gregory v. Dillard's. They shopped at Dillard's, so it
17 wasn't like they were shoplifters coming in there, but
18 that's, of course, how they were always treated. But
19 when this happened, this very bad thing, even though they
20 were followed all the time, but to be treated as badly as
21 they wer~ in this day. They didn't -- it was a jury
22 issue as to whether that was blocking, you know, blocking
23 their ability to complete the contract or whether it was
24 a voluntary turning the stuff back. Anyway, this is
25 not -- we're going off into other things here. Although 527
1 it's interesting to talk about it because you see all of
2 these things.
3 MS. BRABBIT: And to highlight the
4 importance of your role as a female judge, I'm curious if
5 you've ever felt at any point in time worn out by trying
6 to have to explain what it might be like to walk in those
7 shoes or just have that experience or to sort of bring
8 life --
9 JUDGE MURPHY: I think I already told you
10 about this. This is when this judge came in after I had
11 gotten this employee policy through because they weren't
12 going to adopt it, but the staff was trying to bring up
13 that it was an equal opportunity kind of policy of
14 treating the staff and having a complaint procedure at
15 the court meeting. And I spoke up, and I think it was
16 that sexual harassment policy. And, first off, they
17 didn't want to do it because, I mean, how could there be
18 sexual harassment within our court. And I spoke up and I
19 felt so strongly about it. And one of the most
20 conservative judges said, well, I think Diana is right,
21 or something. Anyway, they voted to adopt it. And the
22 judge that had been very much against it then came in to
23 see me afterwards and he said, "Why did you have to do
24 that?" And I think what bothered him the most, well, was
25 losing the battle, but also this other fellow following 528
1 me instead of him. And it wasn't easy for me to have
2 done what I just did in that meeting. You wonder if
3 you're going to lose your ability to influence them on
4 some other stuff if you do it. And then this judge comes
5 in and does that, and I started to cry. As I felt the
6 tears, I mean I didn't sob, but as I, these tears were
7 obviously visible. And I was so mad at myself because
8 that's the last thing you want to do. Really, I mean,
9 but that was at a time when, I mean, you've got to put up
10 with this, that somebody would come in and say why do I
11 have to do this. Nobody would go in to another man and
12 say why did you have to say this. 13 MS. BRABBIT: Right. (~) 14 JUDGE MURPHY: And you have to be very
15 careful on these cases, too, where they think, oh, boy,
16 there she goes again.
17 MS. BRABBIT: And the difficulty being the
18 sole woman in the role, first of all, I suppose.
19 JUDGE MURPHY: There's not much diversity.
20 We have one black judge, but otherwise ...
21 MS. BRABBIT: Do you find that people,
22 staff in the circuit, come to you with concerns or
23 wanting feedback or advice on gender issues?
24 JUDGE MURPHY: Oh, it certainly happened a
25 lot over the years, I would say in the district court C> 529
1 more than here. I mean there's a woman chief of the
2 staff attorneys. There's a woman chief librarian.
3 There's a male clerk of court, but he is wonderful. He's
4 got a deputy that is a woman and very supportive of
5 women. There's a woman circuit executive. She talks to
6 me sometimes about some issues. But when I was the chief
7 judge, for example, or just as the only woman judge, and
8 I tell you, other women judges, magistrate judges or
9 bankruptcy judges have come to talk to me about things.
10 Lots of lawyers, I've told you that.
11 MS. BRABBIT: Yeah, yeah. And did the
12 Eighth Circuit have any formal follow-up to the task 0 13 force, the gender equity task force? 14 JUDGE MURPHY: Yes, although that carried
15 by just one vote, to have a gender fairness
16 implementation committee. The same judge who came in and
17 reduced me to that couple of tears was the leader of the
18 opposition to having any followup to getting the report.
19 MS. BRABBIT: So this was not smooth
20 sailing.
21 JUDGE MURPHY: No, and getting the report,
22 I mean, you know, I told you about trying to appoint that
23 group, and the chief judge never told anybody that I was
24 supposed to be appointing it. And, you know, then when
25 we ran into trouble and the money ran out, you know, to 530 0 1 try to get funding. Anytime anything came up they would
2 come to me about resolving the problem. But they did
3 come up with the report and it was great, you know, and
4 then they presented it to the Judicial Council, and these
5 people didn't want to accept the report after all this
6 work, you know. So that was an issue, were they going to
7 accept the report. And I think the way it was was that
8 the issue was whether the report would be filed or
9 whether it would be accepted. I mean, you know, this
10 could reduce you to tears, too. And the man that I had
11 gotten to chair the committee, because as I explained to
12 you before, I had to have a man do this. And it was a 13 man that everybody liked, you know, because I knew the 0 14 layout in the states of the Eighth Circuit, not just the
15 court. He was at the meeting and he couldn't believe it,
16 you know, after all these years of work, because it took
17 him some years. And I was involved along the way, you
18 know, like sort of the godmother, shall we say. Anyway,
19 I believe it was accepted but not adopted or something.
20 I don't really remember. But it was, you know, then the
21 issue was would there be a gender fairness implementation
22 committee. And that was a very close vote, but it did,
23 it was voted.
24 MS. BRABBIT: Who voted? Which body? Was
25 it the Judicial Council? G 531
1 JUDGE MURPHY: The Judicial Council, which
2 consisted of all of the Courts of Appeal judges, and not
3 an equal number, because one less, one fewer district
4 judges at that time. So anyway, it barely carried. The
5 chief judge made me the chair of it. You know, it's like
6 stuff follows you and follows you and follows you. So
7 then I had to get a committee, and I had to get some
8 people from the Court of Appeals, and I think I already
9 talked to you about that, because one of them -- I mean
10 you had to have conservative people. The district judge
11 people that I had picked for the implementation
12 committee, they were no problem. They did what they were
13 supposed to do, and one of the two of the Court of
0 14 Appeals judges did. The other one worked sort of
15 halfheartedly on it. But then when we had the key
16 meeting when we were presenting the report of the
17 implementation committee to the Judicial Council about
18 what we were planning to do, he did not come to the
19 meeting. He was about, we had set it up how it was going
20 to be, the order, and he came over an hour late. But
21 because some other person had been delayed for another
22 item of business, our thing was supposed to be first on
23 the agenda, it was now later. And so he came and he
24 didn't make positive noises.
25 MS. BRABBIT: So was there a published 532
1 report from the implementation committee?
2 JUDGE MURPHY: Yes, I'm sure. And then
3 part of it was that there would be continuing reports
4 about what was happening-as the work continued. And I
5 may have mentioned that I, one of the judicial
6 conferences where I was having to give the continuing
7 report, because it always fell upon me in the olden days.
8 I don't think there's been a report for a long time.
9 You've reminded me about this. Anyway, the other speaker
10 at this lunch where all the judges are and the lawyers
11 and stuff is Billy Roy Wilson, who is the most colorful
12 judge in the Eighth Circuit. He's a judge in Little
13 Rock, and he's a mule farmer, and he is a wonderful
14 storyteller and funny. And I don't think he ever plans a C)
15 talk, he just gets up there and he starts talking and
16 stories come out, and even if you've heard the story 20
17 times, you'll laugh because of the way he tells it, you
18 know. He's a natural talent. So they have him talk
19 first, and then the program that everybody hates, I don't
20 mean everybody, because the women, for women and blacks
21 this is an important topic, and I had, one of my
22 stalwarts was Judge Carol Jackson, this black woman. I
23 always had Carol, Chief Judge Carol Jackson up there with
24 me when I could, Eastern District of Missouri, because
25 not only is she talented and cute and all, but she's also (~) 533
1 black, and so, you know, it's a visual message that all
2 of this is not just about gender, and we talked about
3 that in our report, too. That's the way it got started,
4 but we care about equal treatment and equal opportunity
5 and all of the rest. So there have been continuing
6 programs at judicial conferences and so on along the
7 lines, but that gives you an idea, though, about where
8 they stick you and when you know that you're not going
9 to -- it's a real challenge to come up with a program
10 they're going to listen to.
11 MS. BRABBIT: I imagine.
12 JUDGE MURPHY: But it's important that it 0 13 be done. We've had some interesting theater troops that 14 have done role-playing programs.
15 MS. BRABBIT: Oh.
16 JUDGE MURPHY: They're very clever. Syl
17 Jones, you may know, he's a black fellow that used to
18 have an opinion spot on the Star Tribune, and recently
19 they had him write something in connection with the,
20 related to Barack Obama in some way, naturally. Anyway,
21 he's affiliated with some group and they do performance
22 things and play acting as a way of making people aware
23 of, or sensitive to what it's like for others, and
24 they've done that a couple times. It's a good way. I
25 mean my approach is always more talking talk, and that's 534 () 1 not as effective. It's more entertaining, the other is
2 obviously, than listening to Diana talk about it.
3 There are a number of Indian cases that I feel
4 very good -about. One that is a very famous c-ase is the
5 Mille Lacs hunting and fishing case. Now there are a
6 number of cases that have gone to the Supreme Court with
7 that title, but they're follow-ups. This was the trial
8 which occurred in June of 1994. I think the opinion came
9 out in July or August, just before I went on the Court of
10 Appeals, a 150-page opinion. It was a three-week trial.
11 Anyway, very significant because the question was whether
12 they still had the rights that they had originally been 13 granted to hunt and fish certain areas of Minnesota when 0 14 they relinquished a lot of land. And the State of
15 Minnesota and some intervening landowners and counties
16 that the Court of Appeals had allowed to come in at the
17 last minute -- not to sidetrack -- but I think the case
18 was all ready for trial, it had gone on for some years,
19 complicated discovery, it got settled. Because these
20 other parties didn't like the settlement that was being
21 discussed, a couple counties and some landowners up there
22 near Mille Lacs, huge lake in Minnesota, they moved to
23 intervene. The magistrate that worked with me on this,
24 very knowledgeable about Indian affairs, and he had been
25 mediating issues, wanted to deny intervention, I did deny () 535
1 it. It was the last minute. I mean you look at the
2 interests, the factors that you consider. So they
3 intervened and it couldn't be settled.
4 And the great irony is that the State lost a lot
5 more because the case went to trial. The settlement was
6 a lot more favorable for these landowners and the
7 counties' interests. But, you know, that's the choice
8 you take in litigation.
9 But at any rate, back to the position of the
10 State and the intervenors who did try to bring in more
11 parochial issues, was that these treaties had been
12 abrogated by subsequent acts of Congress, by presidential
13 proclamations and by who knows what else. I don't u 14 remember all the various, a lot of the legal issues. I
15 do think I've talked to you about this before, but it was
16 one of the most fascinating trials I've ever had.
17 Because, you know, I originally did all the course work
18 for a Ph.D., that was when I was working on my thesis.
19 Many of the witnesses were professional historians,
20 because you're trying to go back to understand how the
21 treaty would have been understood by the people that
22 entered into it, and so you had these professional
23 historians. And what was fascinating about when the
24 settlers, when the land was opened up and the settlers
25 came in and what a shock it was to the Indians' way of 536
1 life, and the first interrelationships.
2 And I think I told you about how there were a
3 lot of cultural misunderstandings. The settlers felt
4 threatened by the Indians who;· of course, no doubt felt
5 threatened in different ways by the settlers, some of
6 which were such a cultural misunderstanding. The
7 settlers put glass in the windows of these houses that
8 they built and the Indians had never seen this before,
9 and they regarded it as an invitation to look in. They
10 thought the people wanted you to look in. And they would
11 come up and look inside, put their faces right on the
12 glass, and the settlers were afraid. They thought they 13 were threatening them or wanting to do harm or take their 0 14 things. And the Indians in this part of the world had
15 the understanding that if you were cold or you were
16 hungry -- I mean think about them living in these cold
17 climates without what we have now -- and you came upon
18 shelter or you came upon food, you could take it. And so
19 the settlers got the idea that these were thieving
20 people. And I'm sure there were other reasons, too, but
21 anyway, just some of these incidents that came out in the
22 testimony were fascinating because there were cultural
23 anthropologists that testified. Then because the treaty
24 had to be interpreted -- the treaties, there was more
25 than one treaty that was at stake -- had to be 0 537
1 interpreted, the Supreme Court ruled, as the Indians
2 understood it. You had to know what the words would have
3 meant when translated into Ojibway. So there's no longer
4 Indians in Minnesota that were fluent enough in Ojibway,
5 because this is technical stuff, and they had an expert
6 in Ojibwe from Canada that testified. That was one of
7 the most fascinating, because it involved the way
8 Indians, because of their customs at the time, would have
9 understood certain terms and so forth.
10 And then you had all these legal issues
11 involving what effect the presidential proclamations
12 would have, or acts of Congress, and the various programs 0 13 that Congress decided on always made it worse for the 14 Indians practically, and then you had all these Supreme
15 Court cases. And it was really, really interesting to
16 say that, to end up concluding, based on the evidence and
17 the law, that these Indians still had their hunting and
18 fishing rights under the treaty.
19 It was left for a later, you know, because I was
20 gone then on the Court of Appeals, so I gave this case to
21 Judge Michael Davis. I knew he would be able to handle
22 it adequately. And then he followed up, because he had
23 to decide, well, how many fish did the Indians get, or
24 how many deer and so on, so that's why there were these
25 subsequent cases. But the main, the main case and the 538 () 1 case that has all of this law relating to Indians, much
2 of which can be applied elsewhere, was from my trial.
3 And as I said, it was 150 pages of findings, because I
4 knew as a district judge findings are important, and it
5 did get affirmed by the Eighth Circuit. The Supreme
6 Court granted cert, and it was decided five to four
7 affirming. Very important case.
8 MS. BRABBIT: Wow. Congratulations.
9 JUDGE MURPHY: Yeah. It was so
10 interesting. It was wonderful. And then seeing and
11 reading about the reaction of tribal people, how affirmed
12 they felt. Because there also were elders that testified 13 at the trial about what had been handed down in the tribe 0 14 about their understanding of things, and the part that
15 hunting and fishing played in their customs and so forth.
16 Anyway, that was great.
17 I had that Yankton Sioux case about whether the
18 Yankton Reservation had been disestablished. That was
19 really interesting. And in the end found that, concluded
20 that there was, it had_ been largely disestablished, but
21 that there was about a square mile that was, where there
22 appeared still to be a reservation and that there were
23 other areas that might be included in that. Sent it back
24 to the district court for further proceedings. And so
25 much time has gone on, I thought they must have settled 539
1 it, which would be unusual, because these are important
2 issues in South Dakota, or anywhere else. They involve
3 land, they involved a lot of other things. And not that
4 long ago a petition for mandamus, writ of mandamus came
5 in not wanting the district court to go forward with
6 something at that point. But anyway, it was clear that
7 the district court still had the proceedings in front of
8 it. So who knows what will happen, when that might come
9 back. But anyway, that was interesting because that law
10 and the disestablishment of reservations, it can be a
11 very slow process. I mean it can be, by law, clearly
12 disestablished by treaty or some act of Congress, but
13 this was, this was a case of Indians being dispersed over
0 14 a region where whites were, in places, the majority and
15 Indians were a large minority, Indians saying that there
16 still was a nucleus of its reservation, and so the
17 question was, well, how do you go about deciding a case
18 like this. Sort of a case of first impression.
19 (End of session.)
20
21
22
23
24
25 540
1 (June 23, 2008.) CJ
2 MS. BRABBIT: Judge Murphy, thank you for
3 reconvening today. Today's date is June 23rd of 2008.
4 The last time we met was in April,- and we were chatting
5 about some of your significant cases. Is that a good
6 spot to pick up?
7 JUDGE MURPHY: Well, you mentioned that
8 that's what we were going to do, and I thought we
9 shouldn't be meeting today because there are two things
10 happening this week that really relate to my cases. One,
11 I think the en bane decision on the Planned Parenthood
12 case from South Dakota is going to come out this week,
13 but also the Supreme Court is going to either issue all
14 of its opinions for this year on Wednesday, or possibly
15 on Thursday, and I had that case, Long Cattle Company
16 versus the Commerce Bank, it's a case about tribal court
17 jurisdiction. So, you know, it's presumptively going to
18 be coming out this week, and that will be very
19 interesting for me.
20 MS. BRABBIT: And the Planned Parenthood
21 case is going to, the en bane decision is going to come
22 out this week as well?
23 JUDGE MURPHY: I think so. It looks like
24 it. And remember I told you about the case of Yankton,
25 the disestablishment of the Yankton Sioux reservation? 541
1 Well, recently there's been a petition for initial en
2 bane hearing that's been filed by South Dakota, State of
3 South Dakota in that case. The district court has ruled
4 and found you know, I had, in the panel opinion that I
5 wrote, we ruled that the reservation was, had not been
6 disestablished but that it had been diminished, and
7 because the records weren't clear enough to do more than
8 what we did find in the certain area, still reservation
9 area, we remanded it to the district court, and that's
10 quite a few years ago. In fact, the law clerk that
11 worked on it has grown up and had babies and -- long time
12 ago. But, anyway, this shows that it's alive because the 0 13 district court ruled. And part of what the State put 14 together for its petition has the opinion of the district
15 court, and I see that the district court has found a lot
16 of the area that was contested had passed to non-Indians
17 but that there were certain areas that remained part of
18 the reservation, certain categories of areas. And the
19 panel of that, our decision, I wrote the decision, as you
20 know, and Richard Arnold was on the panel, and Frank
21 McGill. Richard Arnold has passed to his reward, his
22 heavenly reward, and Frank McGill has completely retired,
23 so I'm the only remaining panel member. Normally the
24 cases come and they get assigned to panels, but
25 occasionally there is a petition for initial en bane 542
1 review by the whole court, which in this case would be
2 very difficult to handle because there are so many
3 different land areas that are in question. So far nobody
4 has voted on this, but it will be interesting to see what
5 happens. I mean it would be unwieldy for the whole
6 court.
7 I saw somebody who said this is an insult to
8 you, and I said, no, I take it as a compliment. In other
9 words, what he meant was South Dakota was judge shopping
10 by this because. there is o.nly. one remaining member of the
11 panel, so if things went according to the normal way, I
12 would be on the panel that would be getting the case.
13 It's interesting how, you know, a lot of cases never go
14 away it seems, and that's what makes life interesting, 0
15 life as an appellate judge.
16 MS. BRABBIT: Um-hum, a boomerang.
17 JUDGE MURPHY: Well, I don't know. You
18 know, I was the one that sent it back for further
19 development, and I knew that both sides were, they would
20 be very contested because the State thought, you know,
21 had fought to try to establish that there was no longer a
22 reservation, and the Indians, of course, wanted to
23 maintain a reservation and expand it to cover
24 Indian-owned land and trust land and so forth, a lot of
25 hot button issues probably. But oddly enough, sitting on () 543
1 my desk right now is a draft of an opinion involving the
2 Yankton Sioux that just shows you how there is a living
3 reservation there at the present time. Because this is,
4 the government wants to close an emergency room on the
5 Yankton reservation and change it to an urgent care
6 facility, and the district court ruled in the favor of
7 the federal government and the tribe has appealed. And
8 obviously I can't tell you right now, probably at the
9 next session I could tell you, though, what the outcome
10 is. But I just mention it now because you see that there
11 is an ongoing entity that is the Yankton Sioux
12 Reservation subsequent to that earlier decision.
13 MS. BRABBIT: Other cases, Judge, you would
0 14 like to highlight?
15 JUDGE MURPHY: Gee, you know, I'm so filled
16 with other things, I realize, if you don't mind
17 MS. BRABBIT: If there's another direction
18 you would want to go --
19 JUDGE MURPHY: I don't think we're done
20 quite yet, so I would rather wait until I get this back
21 from you and remind you that that's what I should be
22 doing.
23 MS. BRABBIT: Sure. Other things you would
24 like to highlight?
25 JUDGE MURPHY: About what? 544
1 MS. BRABBIT: About your time on the bench.
2 JUDGE MURPHY: You know, the thing about
3 the nature of our task here is that we meet every so
4 ofte-n and SD much happens in· between that it's hard to
5 remember. You have the advantage of having that
6 transcript. It's hard for me to remember what we've
7 covered.
8 MS. BRABBIT: Sure.
9 JUDGE MURPHY: We just filed a case called
10 U.S. v. Spears where the court was divided before I did
11 anything, four to four, so it gets your attention, and I
12 wrote an individual opinion but concurred in the result
13 of the opinion written by Judge Riley. It's a dispute
14 related to the changing law and sentencing crack cocaine
15 defendants, and it came up from a judge in the circuit
16 who had devised his own ratio between powder and crack to
17 be used in all sentences and, you know, he didn't like
18 the 100-to-l, or some reformers have talked about 20-to-1
19 or 10-to-l or whatever. He devised his own formula. And
20 it would have been overturned but for, you know, the new
21 cases from the Supreme Court, U.S. v. Gall and U.S. v.
22 Kimbrough, and this turns particularly on Kimbrough,
23 because Judge Riley basically said you can't have this,
24 your own ratio, but there wasn't any particular analysis
25 on it. Judge Colloton wrote a dissent, which was much 545
1 longer than the plurality opinion, where he was
2 construing Kimbrough to permit a judge to have one ratio
3 that he would apply to every case.
4 But the reason that I was really motivated to
5 write separately is because of my experience with this,
6 and my understanding that this problem can never be
7 solved without the Congress. And so I'm, in this
8 separate opinion, concurring opinion, trying to write
9 something that somebody could take to Congress and
10 perhaps get some action. I mean it's really whistling in
11 the dark probably, but that is my reason for it. And
12 also I have, I believe, persuasively shown why the 0 13 dissent is incorrect in this reading of Kimbrough and it 14 would not make sense. Kimbrough says that you're
15 supposed to not have a ratio, you're supposed to apply,
16 you can vary, but you're supposed to do it in
17 consideration of 3553a factors as they apply to the
18 individual defendant, so there's a two-fold point to this
19 concurring opinion. But it was very personal because I
20 indicated that I was a co-author of the opinion -- I mean
21 not of the opinion -- of the cocaine report on which
22 Kimbrough relied, the report that we made to Congress.
23 So it was very personal. So it just sits in there
24 between, it's a very unusual opinion, because you don't
25 lightly do anything as personal as this. And the reason 54 6
1 I was doing it is for what I said, not that I think
2 Congress is sitting around reading these opinions, but
3 that somebody who cares about this might use this as
4 further ammunition. Although we've gotten so much
5 ammunition together, you know, during the time I was at
6 the Sentencing Commission, about how the original reasons
7 that Congress relied on to create this don't exist. If
8 they ever did, they no longer exist, and very persuasive.
9 It's just they don't have the political will to change it
10 because they don't want to just loosen up and make it
11 really easy sentencing. They feel that the only way they
12 can change it is by making the powder sentences harder,
13 at least at the time that I was dealing with Congress,
14 and that would adversely affect Hispanics, because the 0
15 large dealers that are bringing in the powder are
16 disproportionately Hispanic.
17 But, anyway, I mean just think of the different
18 results you would get in this country if each judge,
19 there's seven judges in this district, what if each of
20 those seven judges had a different ratio for powder and
21 crack cocaine. Well, certainly you would like to judge
22 shop, although the filing, you know, the way the cases
23 are distributed it might be hard to do that, but you
24 would get, the individual defendants would be getting
25 such widely different sentences. And then when you think () 547
1 about it on the country-wide level, it would just
2 undercut the whole goal of the Sentencing Reform Act.
3 So, anyway, I feel quite, I mean I think it was
4 a useful opinion to have out there. The great problem is
5 you don't, you're so busy all the time, you don't
6 remember them very much. But I had a nice thing that one
7 of my law clerks said the other day, he was with one of
8 the large firms in Washington that specializes in
9 appellate litigation. He said that I was so highly
10 regarded in that firm because of the dissent I wrote in a
11 case involving the Internet, so that's sort of nice. You
12 feel that nobody is going to tell you that, but it just
13 came up because the law clerk, former law clerk, was just
0 14 chatting about nothing and I was pleased to hear that,
15 yeah.
16 When I, you know, I have the ability to assign
17 cases most times now, because it's only if I'm sitting
18 with Chief Judge Loken or with Judge Wollman that I don't
19 do the assignments, and I've sort of looked to see what
20 kinds of cases I assign myself. And I'm very interested
21 in, I mean I see this from cases involving jurisdiction,
22 conflicts, procedure, I mean these are outcome
23 determinative decisions many times. The relation of the
24 courts in arbitration, I just have taken a really
25 interesting case on that. I can't talk about it right 548
1 yet, but maybe any day now I can talk about some of these 0
2 things that are still on my mind. So in order to give
3 you examples of what I've done there, I would have to go
4 back,-and you just don't remember.
5 I remember now, though, one case, I don't know
6 if I've told you about this. I may have told you about
7 it because we were talking about minorities and the
8 police officers in Arkansas who had a Halloween party and
9 the whites came in black face. I did mention that to
10 you. I don't know why it came into my mind now.
11 Probably because I had resurrected it at one period and
12 it was fresh in my mind. 13 There's a case that I maybe have told you about () 14 that came up in Arkansas involving the unions where there
15 was an extremely inflammatory video that had been made at
16 a strike in northern Minnesota against a large paper
17 company. A chapter of the overall union had been engaged
18 in this strike up at a paper mill in International Falls,
19 I believe it was, and it had turned violent, and the
20 district court had let this video into evidence. This
21 is, meanwhile, a union, unit of the union that's down
22 there in Arkansas, had nothing to do with this, and it
23 was so inflammatory that -- I can't remember if there was
24 a verdict for the union that -- probably not, because
25 otherwise why would we be worried about this video. But u 549
1 really it's rare that you're going to reverse on an
2 evidentiary ruling. But here was something that was so
3 inflammatory that it would likely affect the outcome and
4 make the jurors unable to distinguish, just showing that
5 national union to have been engaged in something that
6 looked really bad.
7 Preemption, I'm real interested in preemption,
8 too. A lot of these things related -- I've written a lot
9 of cases on that.
10 MS. BRABBIT: You've also written some
11 things outside of opinions, some of the introductions for
12 law journals and the forward for the Final Report &
13 Recommendations of the Eighth Circuit Gender Fairness
0 14 Task Force and the introductory remarks for the Law and
15 Inequality Journal for the University of Minnesota, and
16 then also wrote on the occasion of the dedication of the
17 University of St. Thomas law program. Do you enjoy kind
18 of working outside of the written opinion format and
19 doing some other things?
20 JUDGE MURPHY: I do, and I wrote on other
21 sentencing issues, as I'm sure you've seen, some law
22 review articles. I do, but there's so little time to do
23 it. I did, I don't know if I've told you this, you know,
24 I shouldn't have done it, it doesn't make sense, but a
25 classmate of mine called me and -- did I tell you about 550
1 this insurance industry deal?
2 MS. BRABBIT: No.
3 JUDGE MURPHY: I'm trying to see what their
4 official name is, Defense Research Institute, that is an
5 insurance entity. And it so happens I had a friend in
6 law school, he wasn't a real close friend but I always
7 got a kick out of him and so on. And he called me one
8 day from, I don't remember what state he lives in, but
9 out of the blue, and asked me if I would, if I wanted to
10 be the main speaker at their annual meeting. And I, you
11 know, just laughed, it was so incongruous really, and so
12 I didn't say no, I said, well, maybe, but, you know, it's
13 so much work and so forth. Well, then, I don't know how
14 many months ago, it was -- why it was so ridiculous is 0
15 because it was, you know, I'm really making progress
16 physically, but a few months ago I·was less good than I
17 am now. I hope I will be better later, but he called and
18 asked if I would, this is a seminar they're having in New
19 York, that was sort of appealing, see, I haven't been to
20 New York for a while. But it's not that easy a place to
21 get around either, especially with my limitation at the
22 present time.
23 But, I don't know, for some reason, he just
24 happened to call at the right time, I guess, and so I
25 said I would do it. Partly it was the way he described u 551
1 what I'd be doing, and that was that what they wanted me
2 to talk about would be -- would it ever be appropriate
3 for an insurance company to argue, to tell a court that
4 it's trying to persuade about the consequences on the
5 industry depending on the outcome? And also tips on
6 appellate practice. And also, he says, there are more
7 women now in this insurance defense and so would you talk
8 about the role of women. Well, you know, that's quite
9 disparate things, but I thought it was a panel
10 discussion, the way it was going to be, so I said yeah.
11 I told him that, you know, I had to get a ride from the
12 airport and so forth.
13 Then, of course, I get something from the people
0 14 who were actually the secretary of it and so on, and I
15 discovered that they've got me down for a 55-minute
16 presentation. And, of course, now I've gotten a thing
17 saying about my writing, what I'm supposed to have for a
18 writing. And so I know that he says, oh, you don't have
19 to have it, but there also was another person who got in
20 and encouraged me to do this, and that was Jeanne Unger,
21 who is married to a former law clerk, and she's really
22 sharp. In fact, she had a three-minute argument where
23 there were multiple defense lawyers arguing, and she hit
24 the nail on the head and left the other ones in the dust,
25 you know. So she was telling me how it would be fun, she
(__,) 552
1 always goes to that, the three of us can go out to 0
2 dinner, the Ungers, and then I was crabbing about this
3 writing and she says, well, I'll write it for you. Well,
4 no, I don't want that to happen but it would be helpful,
5 I don't want to do a bunch of research to go back and
6 look at all my insurance cases and see what the issues
7 would be. I mean it's a lot of work. So I had
8 originally thought of this as being an interactive thing
9 with the insurance lawyers saying, well, what about this,
10 you know. And so she and I are going to meet after I get
11 back from my two-week vacation and talk about what we can
12 do here. In the meantime, while I'm in the airplane I'll
13 be thinking about what I might say to them about
14 pointers. I have a few war stories about insurance 0
15 cases. I mean there is an example; you don't like to
16 turn in something that's no good, but I don't have the
17 time.
18 And actually I get invited all the time to go
19 give presentations on immigration or on employment law,
20 all of that. I know an awful lot about that, actually I
21 learned a lot about it, many years in the law, but you
22 can't go and talk without doing a lot of work. I really
23 don't, because I'm putting the work in the opinions that
24 are developing the law. So it's a dilemma.
25 MS. BRABBIT: Well, let me ask you this. G 553
1 What do you love most about being an appellate judge?
2 JUDGE MURPHY: Developing the law, that's
3 what I like, because you really do, you know, as a
4 federal district judge you would have occasion, I mean
5 look at the Jaycees or at the Mille Lacs Indian case
6 where you really, and there were other cases where
7 circuit courts would pick up cases that I had written,
8 and say, well, you know, Judge Murphy, this or that,
9 other circuits. It was very heady, you know, and take
10 the role. So I could see that I was having an influence
11 beyond the individual case. But it's much more direct,
12 you know, when you're on the Court of Appeals, and I like
13 that very much. I mean, you know, there are certain
0 14 issues now where the court is quite divided and so you
15 may not always be in the majority, but you still have a
16 role in developing it, I think.
17 MS. BRABBIT: What has been the greatest
18 challenge?
19 JUDGE MURPHY: On the Court of Appeals?
20 Well, one of them is the recognition that I told you,
21 that I was, in effect, a teacher with these law clerks
22 that were coming every year, unlike the two-year ones I
23 had in the district court. It was so pronounced because
24 they come, and all they're doing, you can't have them
25 doing useful functions like helping you get the jury, or 554
1 dealing, you know, assembling the lawyers or things like
2 that. It's all about writing about the law and deciding
3 cases, and writing about the facts of the case and about
4 what the issues are. And they can't, they don't have a
5 clue how to do that when they come. I may have talked to
6 you about that before. They learn how to write memos in
7 law firms, they learn how you, you know, there are
8 controlling cases and that you cite cases. And they
9 unfortunately learn that there are such things as
10 parentheticals to prove your point.
11 But they come and they don't know how to, some
12 of them that really have had a law review article where
13 they really had to do a lot of analysis and develop a
14 theory and build on the law, but most of them haven't had CJ
15 that experience. They've had other kind of writing
16 things, and they don't -- how to try to look at a case
17 about what the underlying facts were, about what the
18 background was at the agency or the district court, how
19 to write about that, how to set the background for what
20 you have to do. They don't know how to do that at all.
21 And so as I had the first cycles and saw this, how you
22 just get them up to speed and they would be gone, because
23 it's, you know, this time of year now they're pretty
24 good. It was really discouraging because it's so much
25 work at the beginning. You have to go through so many 555
1 drafts, and you still do on some things this late because
2 there are different issues.
3 So one year it just occurred to me that I was
4 just like a teacher, you know, and I felt, well, that's
5 really what it is, it's like being a law professor. You
6 don't have to give them the ultimate grade but you're
7 grading them all the time, and more importantly you care
8 tremendously that they get it. Professors don't have to
9 worry about that so much. But here you need them to get
10 it so that you can get your work done in a timely
11 fashion.
12 MS. BRABBIT: Right.
13 JUDGE MURPHY: So that's a very big
0 14 challenge, but it's also very exciting when I see the --
15 and when they're here, they don't --
16 MS. BRABBIT: So you spend your time not
17 just as a jurist but as a teacher.
18 JUDGE MURPHY: Yes. And I told you that
19 the chief judge has asked me, since Richard Arnold passed
20 away, to give the talk to all of the law clerks about how
21 to write opinions. I think I told you that.
22 MS. BRABBIT: Do you do that every year?
23 JUDGE MURPHY: Yes.
24 MS. BRABBIT: And so when a new group of
25 law clerks --
\ ! "'-/ 556
1 JUDGE MURPHY: All of the law clerks. 0
2 MS. BRABBIT: For the Eighth Circuit?
3 JUDGE MURPHY: Right, and that's very
4 difficult because -- I mean-it's very challenging,
5 because it's like telling somebody how to ride a bicycle,
6 you know, and trying to make it interesting. And I have
7 greatly improved from when I first did it because, you
8 know, it's very easy to be there rattling on with nobody
9 listening, if you know what I mean.
10 MS. BRABBIT: Yes. So you teach the large
11 group, but then you also have sort of that --
12 JUDGE MURPHY: It's a lot different when
13 you're working on particular projects. The terrible
14 thing is that when you tell what the rules are, so to 0
15 speak, it sounds self-evident, but it's only when you're
16 trying to apply it that you can see how difficult it is.
17 MS. BRABBIT: So if we were to poll your
18 clerks and say what is Judge Murphy's teaching style in
19 developing you as a top-notch writing professional, what
20 would th€y say?
21 JUDGE MURPHY: I don't know, you would have
22 to ask them.
23 MS. BRABBIT: Is it a one-to-one dialogue
24 and discussion and follow-up with their feedback, or do
25 you make notations on their opinions and return them? 0 557
1 JUDGE MURPHY: That's the main thing.
2 Because frequently what I do is I take them home, work on
3 them at night and on the weekend, the drafts, because
4 there are interruptions during the day. Once you get
5 close to the end, then you can do it in the, but you have
6 to really think about a lot of this, and if you're
7 interrupted you can't. So, yeah, then I write -- if it's
8 really bad, if it doesn't hang together at all and it's
9 hopelessly organized, I would just give it back to them
10 and tell them in general how they have to reorganize it.
11 So once I start editing it, they learn, that's good, but
12 they're shocked because it's so heavily edited. I mean
13 nothing, you're lucky to get a sentence that's not edited
0 14 in some way or stricken. And then there are notes on the
15 front page about, or throughout the opinion about how
16 this has to be reorganized, or I may have said where you
17 put that and so forth, and that goes back and forth. I
18 mean there's some real easy ones by this time of the year
19 that are little per curiams.
20 MS. BRABBIT: Oh, sure.
21 JUDGE MURPHY: Melina Williams just had
22 one, I may have changed one word in it, but that's not
23 what the normal thing is. And I do talk to them about
24 it, too. In this year I probably have had the most
25 substantive discussions with David Fuhr because he 558
1 happened to be the clerk that was working on the 0
2 Dillard's case, this big one that went en bane, and also
3 the Planned Parenthood. So in both of these cases,
4 particularly~in the Planned Parenthood, you have to be
5 devising strategy and thinking about how to get support
6 for that strategy and making analogies, and then finding
7 ways to put this together that are more It's a bigger,
8 it's a bigger task than on a certain panel where you know
9 what the outcome is going to be, at least for the
10 majority that you're writing for. And so we really spent
11 time talking about legal concepts and stuff, more than
12 there's time for. But on individual cases, I talk with
13 all the clerks, too, about the case; a little bit when I
14 first give it to them, but then a lot of times it's only 0
15 later we'll talk about the bigger issues, because you
16 have to get a framework you're going to hang it on.
17 So one thing I think they learn is about how to
18 approach something, and sometimes if you're just butting
19 your head against the wall, there's a way that you can go
20 around it frequently. I think a lot of them have said
21 that that was a valuable thing they learned. But you
22 would really have to, you know, to say what they learn.
23 They do learn about how judges think more, I think,
24 because some of these arguments that come up, no judge is
25 going to go for, you know. And they see that there is 0 559
1 such a thing, but there's some, some things that
2 everybody would see the same way. A lot of things. I'm
3 just talking now about the kinds of things that would be,
4 you know, no, don't go there.
5 MS. BRABBIT: And yet you don't stop there,
6 and so maybe this isn't a fair question because I know
7 some of your former law clerks, but I know how much you
8 give them in terms of professional guidance after their
9 clerkship.
10 JUDGE MURPHY: Oh, yeah, that's definitely
11 my role.
12 MS. BRABBIT: And you say this with a smile C) 13 and a nod. 14 JUDGE MURPHY: I love doing it because I
15 love being able to advance their careers when I get calls
16 from different people, and it's a challenge to pick out
17 the key things, depending upon what job they're applying
18 for, and also what the person's strengths may be. I like
19 doing that. I like keeping in touch with them, seeing
20 how they develop. And I would say that, you know, that
21 bond strengthens in many ways as the years go on. And I
22 told you how pleased I was when I decided I needed this
23 assistant at the Sentencing Commission. I had, you know,
24 two former clerks in mind, and the first one I offered it
25 to did take it so the other one never has found out. But 560
1 that she would, you know, leave her job and devote the
2 time, and then as soon as I resigned, she left, even
3 though they wanted her to stay.
4 MS. BRABBIT:- So yet another way that you
5 leave such a strong legacy through so many people.
6 JUDGE MURPHY: Yeah, it's just, well, you
7 know, everywhere you go, like Tim McGrath, the chief of
8 staff at the Sentencing Commission when I was there, just
9 a wonderful man, and his -- he had a brother who
10 committed suicide recently. And his successor at the
11 Sentencing Commission and then a good friend of his both
12 called me because they were really worried about him, and
13 so they wanted me to call him. And I left many messages.
14 I don't think he was in any shape to take calls. But
15 then he called here last weekend, I think probably
16 relieved that I wasn't here right then, because you know
17 how hard it is not to cry when you're really sad. And he
18 said to Marilyn he was going to call this week when he
19 got back to work and he would be freer to talk because he
20 was at his family's home. And, you know, he said how
21 much it meant to him that, our relationship, you know,
22 and I feel that way.
23 You know, when I was down at Rochester, I mean
24 how you showed up, well, you showed up there and how you
25 sent those wonderful sunflowers with that jaunty yellow l) 561
1 bow, I can't tell you, and Tim sent two boxes of the
2 strangest-looking chocolates. They were absolutely
3 fabulous, but they were works of art. Why I say strange,
4 they were different looking than I had ever seen, and
5 each one came in a wooden box, some really fancy
6 Pennsylvania thing. And I still have the name of that.
7 I should think about sending that to other people. But,
8 you know, everywhere you go in life, you know, you have a
9 chance to meet people, and some of them turn out to be,
10 you know, long-standing relationships that you treasure.
11 MS. BRABBIT: And you have a continuing
12 gathering with your clerks, do you not, Judge, where it's
13 a popcorn party or --
14 JUDGE MURPHY: Well, yeah, we have that one
15 every year, and sometimes people come from elsewhere, but
16 usually it's just the clerks that happen to work here or
17 nearby.
18 MS. BRABBIT: I see.
19 JUDGE MURPHY: But sometimes people will
20 come from other states. But it's a minor thing. But
21 we've had reunions a couple of times where there's been
22 sort of a weekend of activities. And then, of course, we
23 had these portrait hangings, both here and in Washington
24 for the Sentencing Commission. Were they both in the
25 same calendar year? I can't remember. But they both 562
1 were big gatherings of former clerks, and some former
2 clerks attended both. And that means a lot to me that
3 they care enough to come, you know. Nobody's paying
4 their way.
5 MS. BRABBIT: What do you see as some of
6 the greatest challenges facing the circuit court, or
7 specifically the Eighth Circuit, in the next coming
8 years?
9 JUDGE MURPHY: Well, it's amazing how we've
10 adapted to the new technology. We're the first court in
11 the country to do it. And being that I am the least
12 technically proficient judge, Chief Judge Loken cleverly
13 put me in charge of that project. We had a session with
14 lawyers from around the circuit and so on in St. Louis, a
15 two-day meeting, and had some of the people from the
16 district courts that were leaders in this, where
17 everything was online. And we have a clerk, in Michael
18 Gans, that's very, very good, and he was. In Washington
19 they knew he would be a good one to do the first one.
20 And so that's a lot to accomplish, you know, how you're
21 going to deal with that, and we've successfully done
22 that. That's been a big challenge.
23 There's different, you know, there's always a
24 challenge as new judges come on, getting them to adapt
25 to, you know, the culture and the work flow changes. I () 563
1 mean, you know, a year ago I would have said a huge
2 percentage of our cases seem to be, every argument
3 calendar, immigration things. Now there are very few.
4 Two things could be responsible for that. One could be
5 that there was, they're making progress in the big
6 backlog, but it may be that there are fewer appeals
7 because the areas in which to appeal have become more
8 clearer to lawyers because the immigration service has
9 its own jurisdiction for a lot of things that are
10 discretionary with that. And so as the case law
11 develops, the lawyers perhaps see that they don't have
12 the ability to win in their situation perhaps, or are
13 advising the client that it wouldn't make sense. Some of
0 14 them continue, though, and are taking money for what
15 they, if they followed the case law, would know would be
16 a hopeless cause because of this broad area that Congress
17 has given now discretion to the immigration bureaucracy.
18 Or to the attorney general, let me put it that way.
19 But there always are new challenges because the
20 nature of litigation changes as there's new ways of doing
21 business or there's crises in the country. The floods,
22 they're going to cause new litigation. The development
23 of technology, new kinds of lawsuits. So many different
24 areas that you just know that there will be these new
25 kinds of big cases, but you just don't what they will be. 564 () 1 MS. BRABBIT: One area might be judicial
2 election.
3 JUDGE MURPHY: Well, we've already been
4 ruling on that, you know.
5 MS. BRABBIT: What do you see as the -
6 JUDGE MURPHY: I just sent it.
7 MS. BRABBIT: The White decision, which is
8 now -- well, there's been a lot of dialogue, at least in
9 the Minnesota community, about the impact of that
10 decision.
11 JUDGE MURPHY: Well, that decision got
12 people's attention. I mean I think -- I respect former
13 Governor Quie, who had a particular interest in
14 appointing judges when he was governor, of heading up a
15 group that accepted what had come out from the Court of
16 Appeals and said, well, what are we going to do now? Do
17 we want to go the route of Texas and some of these other
18 places where the judge is going to have to spend a
19 million dollars on her election campaign or is there a
20 better way? And, you know, the American Judicature
21 Society, which I have been so involved in, has had the
22 answer all along, which is if you're going to have an
23 election, have it be a judicial retention election, and
24 that's basically what they came up with in Minnesota,
25 this group that has been widely accepted by various 0 565
1 groups here in Minnesota, I mean this Quie proposal,
2 which would be appointment in the first instance in a
3 merit selection kind of system, and then retention
4 elections. No law has been changed to adopt that so far
5 as'I know.
6 But the key thing will be if, when we see
7 filings close on July 1st, I believe, if people are
8 running that are going to take party endorsement and are
9 going to appear at party functions and are going to take
10 positions on whatever the key issues might be thought to
11 be in the state.
12 MS. BRABBIT: It will be interesting to
13 see.
14 JUDGE MURPHY: And this campaign finance
15 thing is, the broader picture is going to be developing
16 in a new way because here you have a leading proponent of
17 campaign reform, sponsor of campaign reform, who has now
18 said reality forces me to raise money myself because
19 there are these other groups out here that aren't
20 controlled by these laws so things are going to have to
21 be changed, I believe, for the people who are concerned
22 about elections of public servants. You can't do it in a
23 piecemeal way.
24 I think probably Senator Obama would say it,
25 since these 527 groups don't have any control, and we 566
1 have seen how active they have been in the last campaign,
2 presidential campaign. You've got to figure that it's
3 not just the, what the public funding would provide to
4 the presidential candidates, it's also the parties'
5 ability to raise money, and then these independent
6 groups. That's getting away from judicial elections, but
7 this is going to be a big area, and I bet there will be
8 more in Congress and more in the Supreme Court. And it's
9 going to be interesting to see what they say about the
10 gun, Second Amendment, this week, the Supreme Court. To
11 the extent that they reinterpret the Second Amendment in
12 any way, that's going to encourage people to litigate 13 about what had been long-accepted constitutional () 14 premises, principles. I predict. Depends upon how they
15 make the decision.
16 I have to say an extremely important issue for
17 the courts, the future of the courts, is judicial
18 compensation. I don't know why I didn't think of that
19 right away because I've worked on that and, as president
20 of the Federal Judges Association, worked with others in
21 1989 to get the only real pay raise that there's been
22 probably in 50 years. Others have just been
23 cost-of-living increases. And we thought that when we
24 got that passed, in reading the thing, that it was going
25 to be resolved for all time, because it had an automatic (_J 567
1 method by which cost-of-living increases would be added,
2 but it wasn't interpreted that way, and so we got the
3 specific pay increases, the specific big pay increase,
4 and then a few cost-of-living adjustments, but the
5 ongoing part was never carried out. And so same thing
6 has happened now, you know, the real value of the salary
7 has gone way down, and you have judges leaving because
8 they can't afford to send their kids to college and so
9 forth, and people say insulting things. Like somebody
10 said to me the other day, the federal judiciary is going
11 to be all women. They said that back then, too. But,
12 you know, the idea that women are out there and are going
13 to be willing to take slave wages, or other minorities, I
14 don't think has ever been established in fact. And I
15 mean, look, George W. Bush has appointed seven of the 11
16 judges on the Eighth Circuit. They're all men, they all
17 were very happy to get the jobs. But, of course, this is
18 what the senators say because they know this very well.
19 That's what the senators say when we say the pay needs to
20 be raised. But it is a real problem. And while you're
21 supposed to be independent, judicial independence is
22 guaranteed in the Constitution of the United States, you
23 know, if Congress is controlling your salaries and
24 doesn't give you any, and you've got to go beg, is that
25 at some point going to erode independence? It's a big 568
(') 1 issue.
2 MS. BRABBIT: What do you predict will
3 happen?
4 JUDGE MURPHY: I don't know. They really,
5 a lot of people working on it thought they were going to
6 get a big pay raise, you know. They were so pleased with
7 Chief Justice Roberts' statement to Congress. And they
8 were so sure that Congress liked the chief justice, that
9 Jim Duff, the new head of the AO, is very experienced in
10 these matters .. He was the counsel for several judges'
11 associations and understands these issues so well. And
12 they had a strategy and they had key people agree to it,
13 but I always wondered how it could happen in an election
14 year. Because it just takes one volunteer to say I'm
15 not, you all may want to change, raise our salaries,
16 because they tie their salaries to the judges, but I'm
17 not going to do that, the public is hurting, blah, blah,
18 blah. And then when one does it, then all the rest of
19 them. So anyway, it doesn't look like anything's going
20 to happen this year, and so that's going to be recurring.
21 What do I predict? I told somebody that was
22 working on it, you have to get a -- the reason that that
23 worked in 1989 was that there was a vehicle called the
24 Ethics Reform Act, 1989. It was originally called the
25 Judicial Pay and Ethics Reform Act. Quickly they dropped C) 569
1 the "pay. " And there were things that the judges gave up
2 in that. Up until then, people could teach at law
3 schools and elsewhere and get big salaries, there was no
4 restriction. And senior judges could take senior status
5 and still get the salary of the office, whether they were
6 doing any work or not, where they could retire. So they
7 put a limit on what you could get as outside income. And
8 I got, I'm sure I told you this before, because I got
9 calls from Judge John Noonan and Judge Doug Ginsburg, for
10 example, constant calls from them, because those were the
11 people that were getting these huge salaries for giving
12 lectures.
13 MS. BRABBIT: Oh, okay.
0 14 JUDGE MURPHY: In the meantime, that
15 restriction has been lifted, and there is a, you can earn
16 quite a bit on the side. I haven't followed it that
17 closely since. But anyway, there was something that
18 Congress could say, look, we are cutting back on the
19 judges that have been abusing this system, or whatever
20 they said. And these senior judges that get these salary
21 increases should be forced to work, so they set up a
22 schedule by which, depending upon how active you are, you
23 would be able to get X number of law clerks, but you
24 would have to, this chief judge would have to certify
25 that you were doing three-fourths of a load, or it goes 570
1 down to one-fourth. And if you did less than one-fourth
2 of a caseload, then you wouldn't get any pay raise.
3 Well, they come around, boom, boom, anyway. But this was
4 something that -- and then there were some other
5 restrictions about the filing requirements about your
6 outside activities and stuff like that. So they put
7 together something and said, look, we're reining in these
8 judges, that's what I'm voting for, you know, this isn't
9 a pay raise bill. You see what I mean?
10 MS. BRABBIT: Yep, yep.
11 JUDGE MURPHY: And I pointed this out to
12 the people but, you know, nobody likes to hear old war 13 stories. So I can't predict when it's going to change. () 14 MS. BRABBIT: They had an article about
15 Judge Rosenbaum in the paper this last weekend that
16 touched on, I think his quote was, you know, it needs to
17 be addressed during, I can't remember exactly now, but --
18 JUDGE MURPHY: It was a very complimentary
19 article. I sent a copy to Jim.
20 (End of session.)
21
22
23
24
25 0 571
1 (April 7, 2009.)
2 MS. BRABBIT: Today's date is April 7th of
3 2009, and we are continuing with the oral history of the
4 Honorable Diana Murphy. Judge, it's a pleasure to be
5 here again today to continue with your oral history, and
6 if we could begin with questions surrounding the Eighth
7 Circuit.
8 Would you please describe the process of moving
9 to the Eighth Circuit in a bit more detail?
10 JUDGE MURPHY: Well, it was a very
11 different situation then when I, that led to the district
12 court. As I know I've mentioned before, there was a
13 process set up by President Carter for the district
0 14 courts and for the circuit courts. And in our state,
15 Vice President Mondale and the two Republican senators,
16 Senator Boschwitz and Senator Durenberger, appointed a
17 twelve-person committee and anybody could submit an
18 application. They came up with an application form that
19 was very, very lengthy, calling for details about your
20 practice and opponents and so on, and your experience.
21 You submitted that and then they selected the people they
22 would interview. Then they came up with the list of ten
23 names from which then the appointing authorities, the
24 President, but with advice, and there were no Democratic
25 senators in Minnesota so Vice President Mondale would 572
1 have been the principal advisor for the Democrats. They
2 had agreed there would be a Democrat and a Republican, I
3 know I went over that before, so that enabled me to put
4 my name forward.
5 By the time this vacancy opened up in the Eighth
6 Circuit, I was a more well-known fixture in the Eighth
7 Circuit, and someone at, shall we say, an insider who
8 thought I would be good on the circuit, let me know that
9 there was going to be a vacancy in two months' time with
10 the judge taking .senior status. And it was a judge who,
11 John R. Gibson, a good friend of mine, and I knew he,
12 obviously I knew where he served, he was from Missouri.
13 At that point I didn't know the full significance of that
14 factor and I didn't know exactly how to proceed. 0
15 It was very different than in a state where you
16 had a lot of people that you know who you could talk to
17 about your potential interest. Judge Heaney gave me a
18 word of advice by saying you need a committee. I think I
19 may have told you that I gathered, you know, what
20 committee would I have? I mean I knew in the political
21 environments you had committees, so I got together some
22 friends whom I had gone to law school with, some friends
23 I had met while I was practicing, some former law clerks,
24 and we met and talked. They all encouraged me to go
25 forward, and people threw out various ideas, and it was 573
1 clear none of us really knew what to do.
2 But out of that meeting came a lot of
3 initiatives by individual people who spoke with others on
4 my behalf, whether in the political arena or not. Some
5 spoke with senators from other ·states that they happened
6 to know within the circuit, and with people in Minnesota.
7 And I spoke with the Minnesota Women Lawyers president,
8 who was then Carol Chomsky, Professor Chomsky, and
9 eventually it was Senator Wellstone. But you begin to
10 get feedback when your friends are talking to others
11 about you, and the feedback came that, as this was a
12 Missouri seat, and Missouri had the most cases, and there
13 were important figures who supported the President and
0 14 needed to get things done. It turned out I never paid
15 that much attention to the number of cases in the various
16 states. I mean I had been aware of the, you know, more
17 complicated cases coming out of Kansas City and St. Louis
18 and the Twin Cities, although you get them from other
19 areas, too, but those are the major population centers,
20 and two of them, of course, are in Missouri.
21 So along the way I spoke to some people I knew
22 in Missouri, and others did on my behalf. At one point
23 the White House Counsel's Office wanted to see the
24 statistics from the Eighth Circuit about where the cases
25 were. As I say, it was amorphous, and it ended in a very 574
1 nice way, because I got the nod and went off to 0
2 Washington and the Justice Department and the White House
3 Counsel and spoke with them and received the nomination
4 and the appointment.
5 You know, I think I've mentioned the four
6 presidential appointments. Well, I was appointed by
7 President Carter to a committee in connection with the
8 International Women's Year, but I mean appointments that
9 require advice and consent of the Senate. In addition to
10 District Court and the Court of Appeals, I had two other
11 appointments; one as a member of the U.S. Sentencing
12 Commission and another as Chair of the Sentencing
13 Commission. They were the same date, but they were
14 significant in terms of the way the Senate would react to
15 that. You went through the same process where you go and
16 you meet people in the Justice Department and you go
17 through their screening, and the White House Counsel, and
18 then you have the Senate hearings. And those were the
19 only hearings that were at all contentious because there
20 was one Republican senator who wanted to have the husband
21 of his top aide on the Sentencing Commission. He was
22 also thinking ahead about whether would I agree only to
23 be chair for two years so if the next president was
24 Republican, they would have a chance to get a Republican
25 as chair. Well, the term is six years, and I knew that 575
1 you would just be a very weak figure if you said you
2 would only do it for two years, and I said no to that
3 deal. But it was easy to do because, you know, being on
4 the Sentencing Commission was never my idea of fun or
5 what I had always wanted to do. And so, anyway, the
6 processes were very, very interesting. Different in
7 their own way.
8 MS. BRABBIT: Tell us about your meeting
9 with the Justice Department and the White House Counsel's
10 Office.
11 JUDGE MURPHY: Well, by the time I had the
12 meeting on the, when I was up for the Sentencing
13 Commission, it was very complimentary. They just said,
0 14 well, you know, you really have a very distinguished
15 career, because they had looked at the cases and so on.
16 And this was rather surprising that they would react that
17 way, since I had declared the sentencing guidelines
18 unconstitutional, I think I mentioned that before, and
19 the case had been argued on behalf of the United States
20 partly by John Steer, then the general counsel for the
21 Sentencing Commission. He was a colleague of mine on the
22 Sentencing Commission. He was a commissioner.
23 I think I already told you about when I went to
24 the Justice Department before my hearing for the Court of
25 Appeals. They asked me a couple questions and they heard 576
1 my answers and they just said, oh, you don't need any
2 prompting. And that was because I had been through a lot
3 of contentious things in my life. I think any federal
4 district judge has had a lot of experience handling
5 unexpected situations, but in all of the community work
6 I've done where you are just another person, you don't
7 have this aura of acting as a judge. So, anyway, is
8 there anything else you want to know about that?
9 MS. BRABBIT: At some point in time, did
10 you meet with the senators prior to the nomination?
11 JUDGE MURPHY: Well, I met with Senator
12 Wellstone and went to his office. He said, "Come to my
13 office before your hearing and everything," and Sheila
14 Wellstone, they were just so loving. I think I had 0
15 mentioned when I was Chair of the Sentencing Commission,
16 sometimes I would just stop in there. Everyplace else
17 was so contentious and they were always so supportive.
18 Although, you know, the tough sentences wouldn't have
19 been one of Senator Wellstone's agenda items, but he just
20 had faith in people that he had gotten to know and
21 appointed. It was a wonderful. way.
22 I know that Senator Grams was the Republican
23 senator at the time I went through for the Sentencing
24 Commission. But it was Senator, I believe it was Senator
25 Boschwitz still, and I told you already why Senator () 577
1 Boschwitz was so supportive of my going on the Court of
2 Appeals; because he and Jim Rosenbaum are old friends,
3 and this enabled Jim, at least as far as the design of
4 the trial courtrooms, to have his way on the building.
s MS. BRABBIT: When did you, and how did you
6 receive the news of your nomination?
7 JUDGE MURPHY: I never got a call from the
8 president, like some presidents, like the Bushes and
9 Ronald Reagan would call up the people, and it would be
10 rewarding for them because the person would be so happy.
11 I"told you, I know, the first I heard that I was one of
12 the ten to get interviewed for the district court I got a
13 call by the reporter, that's how I found out. He said,
14 in this tone of, "Can you believe this?" He thought I
15 was going to say no. But I felt I had a good application
16 and I did, you know, an okay interview.
17 But, you know, the most recent is the White
18 House Counsel called me about the -- well, part of the
19 time I would hear from the Justice Department and part of
20 the time the deputy attorney general and part of the time
21 the White House Counsel. There was a lot of
22 communication because they were having a hard time
23 getting some of the people supported that they were
24 trying to put through as a slate, so I can't remember.
25 MS. BRABBIT: Was the ABA involved at all? 578
1 JUDGE MURPHY: Not in the Sentencing
2 Commission, but in the other two, yes. And I know I told
3 you about the fact that the ABA person who was going to
4 evaluate me came tb town and went to see my arthritis
5 doctor. He was determined that, because they had gotten
6 these comments from people here that, you know, I had
7 such bad arthritis I should not get a lifetime
8 appointment. He was really on that case, but the doctor
9 was out of town. And I talked to Dick Kyle's father, you
10 know, the present district judge, ... who was a long-time
11 member of that standing committee. And I told you, I
12 think, that he said, after looking at my resume, and I
13 had gon~ over with somebody that was a friend of his who ··., . \ (.:...._ ____ j 14 had taken me, and he said, well, "Why don't you go for
15 magistrate judge?" It was just magistrate because that
16 was before the name was changed. I may have told you
17 that. So those weren't too encouraging, but it didn't
18 matter in the end anyway. I won the one over, and I told
19 you that he decided that he had been the big sponsor all
20 along.
21 I just sailed through on the Court of Appeals.
22 I mean there was a lot of work that -- and they knew a
23 lot about me.
24 MS. BRABBIT: The story about the ABA
25 sending someone here to meet with your physicians, just 0 579
1 let me clarify for a minute. Was that for the district
2 court or the appellate court?
3 JUDGE MURPHY: The district court.
4 MS. BRABBIT: The district court.
5 JUDGE MURPHY: Yeah, the district court.
6 By the time I went through the appellate court, everybody
7 just, it was like, yes, yes, yes, perfect.
8 MS. BRABBIT: Okay.
9 JUDGE MURPHY: It was like night and day
10 for the process. And how I was told, I remember how I
11 w.as told now. I was in the -- this sounds like I'm
12 traveling to fancy places all the time. I was on the
13 island of St. Thomas for an ABA committee meeting, and
0 14 the chair of the committee was a judge in Pennsylvania
15 who occasionally would go and sit at St. Thomas because
16 that's in the Third Circuit, so to speak. I mean it's
17 part of it. So he knew the place so he got the committee
18 to go down there. We were meeting and I got called out,
19 I got a call from Senator Wellstone to tell me that I was
20 getting appointed by the president. And so they ordered
21 champagne, and it was very nice because it was, how I
22 could not have imagined that -- it was very collegial.
23 MS. BRABBIT: How wonderful.
24 JUDGE MURPHY: Everybody was happy for me.
25 MS. BRABBIT: How wonderful. So at that
\ 580
1 time, did President Carter --
2 JUDGE MURPHY: I'm talking now about the
3 Court of Appeals.
4 MS. BRABBIT: Oh, right, right, right.
5 That was President Clinton. I'm sorry, I misspoke. Did
6 President Clinton have a process that involved the ABA
7 or --
8 JUDGE MURPHY: Oh, yes, all the Democratic
9 presidents have.
10 MS. BRABBIT: Okay.
11 JUDGE MURPHY: And even the Republican
12 presidents had said they weren't going to use it, just
13 had it sort of truncated. They didn't let them, the way
14 the Democrats used to do it -- I don't know what 0
15 President Obama will do -- is they will give the name to
16 the ABA maybe even before, before the thing got going
17 very much.
18 MS. BRABBIT: I see.
19 JUDGE MURPHY: And so then the ABA would
20 come back and say~ no, this person is no good, and then
21 they would just quietly withdraw, as opposed to having
22 gone through the whole Justice Department rigamarole.
23 MS. BRABBIT: I got it.
24 JUDGE MURPHY: Because in the end -- let's
25 take that Carter thing. You had this huge questionnaire, u 581
1 very, very demanding, because you had to put in the cases
2 that you dealt with and all of the people that knew you
3 in various capacities of your life, et cetera, et cetera.
4 Then after that you had to fill out one that the Justice
5 Department had, very voluminous, and then you had to fill
6 out one the Senate Judiciary Committee had, and then
7 Senator Thurmond had his own. So I mean many of the
8 things were similar questions, but some were different at
9 each stage. A lot of work.
10 MS. BRABBIT: So four-plus different
11 applications, lengthy applications?
12 JUDGE MURPHY: Yeah.
13 MS. BRABBIT: You mentioned that Senator
() 14 Durenberger and Senator Boschwitz had a committee and
15 anyone could submit, fill out a lengthy application and
16 submit that. Was that at any point in time whether there
17 was a seat open or not if someone wanted to be
18 considered?
19 JUDGE MURPHY: Well, this was, they knew
20 there were two new positions, there were two new
21 judgeships, one of which was temporary.
22 MS. BRABBIT: Okay.
23 JUDGE MURPHY: But, of course, it was made
24 permanent. So they knew that there were these two
25 vacancies, and they had agreed that one would be a 582
1 Democrat and one a Republican. Senator Mondale has been
2 attacked a lot on that.
3 MS. BRABBIT: How can women lawyers today
4 best position themselves or prepare themselves to be a
5 circuit judge?
6 JUDGE MURPHY: Well, you know, the number
7 of women that would want to be on the circuit court, I
8 don't know what percentage it would be, but it's somewhat
9 self -- not everybody -- I mean because of the nature of
10 the work, it's a a,lot of writing, _it's very collegial,
11 you're always working with other people to try to get to
12 a common resolution. Not everyone likes that kind of
13 thing. So, first of all, you have to be interested in
14 it. Then, if you are, you should be doing something in 0
15 the legal world, whether it's at a university or in a law
16 firm or in a state court, where you are amassing some
17 good examples of concise, clear legal writing.
18 And I am a great, I am completely a believer in
19 the idea that you should be involved in community
20 activities, whether it's politics or whether it's other
21 kinds. I never was active in politics except for a very
22 short period of time, although my husband was. I knew
23 some people that were, because my husband, for a certain
24 time in his life, was interested in politics and he was
25 chairman of the ward and then of the senatorial, first u 583
1 chairman of our senatorial district, DFL. And we had
2 many fundraisers at our house, including the one for
3 George McGovern, a thousand-dollar one, which seemed so
4 incredibly expensive, you know, way back. Now, of
5 course, the amounts that they give.
6 But, anyway, the contacts that helped me were
7 not that so much, but because of being involved in a lot
8 of community things. You know, United Way, biracial
9 groups working for the change in the law that would have
10 fair access for employment, for housing. Just all kinds
11 of things, you know, if you look at my activities, it's a
12 huge list. The group working with prisoners, Minnesota
13 prisons, trying to help them, when they're going to get
0 14 out of prison, not to recidivate. I worked on victims'
15 advocacy. I worked with battered women's shelters when
16 they came out with foundations that made grants on
17 projects. A huge list of things.
18 It doesn't matter what the things are, but to
19 the extent that they're not just about you, you make, you
20 meet people. You learn how to organize your thoughts,
21 how to work with people, people that are surprisingly
22 later in key spots that could help you and that want to
23 help you, because you don't start out with that. I mean
24 some people do because they were roommates, you know, the
25 old story is if you're going to select your roommate, 584
1 well, the roommate of a senator, future senator when
2 you're in college. But, you know, especially for women,
3 that hasn't been a route.
4 And to help other women be involved in, you
5 know, there was a woman, very bright and able woman that
6 wanted to be a judge in Minnesota. Her husband had
7 helped me, and he was very much wanting me to help her.
8 And one of the things I told her is, you know, you've got
9 to join the Minnesota Women Lawyers and you have to go to
10 these events so people know who you are and so on. Well,
11 I don't need that, she said, because, you know, I'm
12 partner in a leading law firm, I'm a good lawyer, you
13 know, I don't need that. But that wasn't the point. It
14 was that you would be out there helping other people, you CJ
15 know, and helping the group as a whole and then, lo and
16 behold, they might help you later. But that's a hard one
17 for some people to get. Especially the ones that have a
18 superior record, you know.
19 MS. BRABBIT: Do you have any suggestions,
20 Judge, for ways to create what I'll call a pipeline of
21 awareness of women candidates? Some scholars and writers
22 and other legal professionals are of the opinion that
23 some qualified women don't get known, and that we need to
24 build a full candidate pool.
25 JUDGE MURPHY: Well, it's not as exciting 585
;~ ( ) 1 for groups to do it when there isn't a vacancy that's
2 looming because you have to keep updating it all the
3 time. I mean I think it's a very good idea, but let's
4 say you're working on it, okay, this year. It's April
5 now. By November, come up with a list of outstanding
6 people, and we would say what they would be good for, you
7 know, trial judges, appellate judges, prosecutors, U.S.
8 attorneys, which is a very important route to becoming a
9 federal judge, and there are a number of women now that
10 have been U.S. attorneys and have become judges. It's
11 very important. And just assistants. That's a very good
12 way to, you know, there are a lot of ways to start, but
13 those are particularly good ones.
0 14 But anyway, so we come up, let's say we're
15 sitting here and doing it, you and I, we would come up in
16 November with a list, because we would have let people
17 know that we were interested, and we would interview the
18 people and maybe look at their writings or what they had
19 done. You come up with a list. Well, there's no vacancy
20 now. Maybe two years down the line there's a vacancy.
21 In the meantime there are other people. Maybe some of
22 the first group now appear too old to whoever would be
23 doing the appointments. So it's hard to, unless you have
24 an institutional mechanism for trying to keep it updated,
25 and I know that the Minnesota Women Lawyers, maybe they
\_) 586
1 still do it, but you get in a position sometimes where 0
2 you can't follow everything the way you would like to.
3 For a while, after the grand heyday when
4 Minnesota Women Lawyers really made such an impact in
5 Minnesota, and helped, very influential in getting a
6 woman on the federal district court, because they
7 produced four candidates, I'm happy to say I was one of
8 them, and they really stuck by me. The people who, I
9 told you about Sue Sedgwick, I think, standing on the
10 chair, and you've got._ to _do that, you know.
11 So right in the couple years, several years
12 after that, Minnesota Women Lawyers had a process by
13 which they interviewed people and then they decided,
14 well, should we be interviewing men, too, and I think ()
15 that they did. And, you know, I don't want to say that's
16 wrong, but it does dilute the process, because it takes a
17 lot of time working on this. And I don't know why they
18 quit, but I would guess it's because it just, the
19 vacancies that come up, I mean we might have found one
20 that would be a natural for an appellate court and
21 there's no vacancy on the appellate court but there's
22 some trial judge ones. Or you get somebody like the
23 present governor here who has told people that he's,
24 maybe not for quotation, that he wants to appoint
25 Republican judges. Well, if you're governor for eight CJ 587
1 years, that shuts out a lot of people.
2 MS. BRABBIT: Any other advice or comments
3 you might give to women while we're on this topic, Judge?
4 JUDGE MURPHY: Not everyone would like
5 being a judge. I think sometimes people think it would
6 be so great. Not everyone likes it. So that's sort of
7 like, you know, you should think about what you really
8 want in life, but then I think you need to go after it.
9 And even if you don't make it the first time, you might
10 make it the second time, and you learn by, you know,
11 trying, and the run is worth it in itself. But that's,
12 the bottom line is each person has something they have to
13 decide what she, herself, would like to do.
14 Sometimes, especially in those early days with
15 Governor Perpich, everybody wanted to be a judge. And it
16 has some great things. I mean if you're pregnant you can
17 wear that big robe! And I think that partly it was seen
18 as a refuge where you weren't going to have any
19 antagonistic forces that you have to deal with. Well, of
20 course, that was a misunderstanding of what it's like.
21 But, you know, when you're in a law firm and you're
22 having trouble getting the work you want, it's easy to
23 think, oh, if I were a judge, I wouldn't have any of
24 that, it would be different.
25 But, you know, human nature being the way that 588
1 it is everywhere, you've got to decide what you want to ()
2 do and then figure out how you can do it. But the main
3 step is to decide you want to do it and then to tell
4 people. I mean if there's a, you know, an application
5 process, then that's easy. Like in Minnesota now, you
6 can apply to this group that advises the governor on
7 appointments.
8 (End of tape 1.)
9 JUDGE MURPHY: When I had this carefully
10 selected group,.you know, when Judge Heaney told me you
11 have to have a committee, and I thought, well, what would
12 it do, you know, who would I have on the committee? And
13 I got the group together, made up of the people I told
14 you, and we sat in a room and I told them there was this 0
15 opening and I would like to do it. And I don't remember
16 what else I said, but I probably said Judge Heaney said
17 there should be a committee. And then they just sat
18 there. And I thought, well, do they think it's ludicrous
19 for me to be trying to do this? I didn't really think
20 they would because of who they were, you know, or don't
21 they have a clue what should be done or whatever, because
22 it was just, just physically silent. And it was like
23 they looked stunned, like you hit them on the head, you
24 know. And so then I just, I think I asked, I called on
25 one person to start, and then, you know, some of them had 0 589
1 ideas right away and so on.
2 But the point that I'm making here, again by
3 repeating it, is you may feel funny starting. I mean,
4 you know, deciding where to start. You could go talk to
5 the Women Lawyers, you could go talk to a political
6 person you know. Who knows. But the thing is you start.
7 MS. BRABBIT: Make a connection. You've
8 had such a distinguished tenure, Judge, to date, and that
9 continues in full strength, and you have shared with me a
10 list here of the numerous and many awards and
11 accomplishments that you have received over the years.
12· Are there a couple that you would like to highlight that
13 are particularly meaningful to you that you would like to
0 14 elaborate on, Judge?
15 JUDGE MURPHY: Well, one of them certainly
16 is the Devitt Award, which is an award that's given to a
17 federal judge every year for outstanding service.
18 Sometimes it's for what judges have done in the Judicial
19 Conference, or things advancing the interests of the
20 judiciary. Sometimes it's given for very courageous
21 judges who have made significant rulings, despite how
22 unpopular they might be received in their community. And
23 if you look at the list of winners over the years, there
24 are many, many, some of them are brilliant authors of
25 opinions, some of them are expert trial judges. 590
1 You know, Judge Weinstein, not only a legendary 0
2 trial judge, but such an expert in evidence, and with his
3 work on evidence. Judge Wisdom, you know, for the
4 heroic, very heroic opinions on desegregation in the
5 South where he lost friends and so forth. And one that I
6 mentioned on the day that I won the award, Judge Frank
7 Johnson in Alabama, who -- Judge Wisdom was a Court of
8 Appeals judge, Judge Weinstein a district judge, of
9 course, and Judge Johnson, a district judge, later went
10 on the circuit, F~fth Circuit then, which is, of course,
11 now the Eleventh Circuit, that area, but he had addressed
12 the conditions in the state institutions. Some of the
13 state institutions in Alabama were such that he found
14 them unconstitutional for the mentally disabled or mental
15 health, the state prisons, and so that was the heyday of
16 when federal judges took over running the systems, so to
17 speak. Very unpopular, and a great reaction to it later.
18 Of course, where there's an action, there's
19 always a reaction. And cases like Judge Johnson's, which
20 really the conditions were so terrible in those
21 institutions drastic measures had to be taken, but the
22 resentment of state officials with the idea that federal
23 judges are going to be running our institutions was
24 great. And, of course, Congress stepped in and made some
25 jurisdictional statutes and so on that eliminated -- you 0 591
1 couldn't do that kind of thing again today under the
2 current law.
3 But anyway, lots of distinguished judges, and
4 none of them women, not a single woman at that time. So
5 to receive that Devitt award meant a lot, because my
6 concept of federal judges was one that they really stood
7 for enforcing the Constitution of the United States, for
8 trying to help people and coming to the rescue when it
9 was needed, and there were many wonderful role models in
10 this line-up.
11 And, of course, Ed Devitt was the chief judge at
12 the time I went on the federal district court, and I was
13 not his choice for that job, he preferred one of the u 14 other candidates. And I think I already told you about
15 the inauspicious beginning of our relationship, when he
16 was not at all friendly. When tendered my application
17 form, a copy of it, by a friend, a judge friend who had
18 taken me to meet with him, he took it and threw it in a
19 drawer in his desk, and I'm s~re it went from there to
20 the wastebasket, unless to be used for his favorite
21 candidate. That's the thing about our relationship; we
22 became great friends, and he was, he called me Murph, and
23 I loved that. He's the only person I've ever had a
24 nickname from, but he always called me Murph. And he
25 would send me, when he saw I had done a good thing on a 592
1 case, or in some community thing, he'd send me a letter
2 of congratulations or a note. Or sometimes he would just
3 send me a note to ask how I was doing or was I well, and
4 ju~t a wonderful relationship.- So that was a very
5 personal thing about it, too.
6 And of course, Lisa, that's how I know you,
7 because you were then president of the Women Lawyers,
8 which was the one that organized the nomination. That
9 was important for me, because it's wonderful being your
10 friend.
11 MS. BRABBIT: It's wonderful to be your
12 friend, Judge. I've enjoyed this very much. Are there
13 other awards that you would like to highlight?
14 JUDGE MURPHY: Well, you know, there are 0
15 some, like Phi Beta Kappa and, you know, Law Review and
16 Order of the Coif that are very useful to you when you're
17 out applying for jobs, so it was nice to receive those.
18 The Fulbright scholarship was very exciting to me
19 because, as you know, we talked about I wanted to go back
20 to Germany, I wanted to study at a German university and
21 really delve into German history and literature and so
22 forth in German, and that was wonderful and a real
23 turning point in my life.
24 A number of these awards I got relate to having
25 changed the organization in some way. That would be the 0 593
1 Amicus Founders Award and the YWCA Outstanding
2 Achievement Award. They used to give them to women
3 leaders. University of Minnesota Outstanding Achievement
4 Award, I got that at an early age. I wonder if that's
5 the right year though. I think I might have gotten that
6 in 1981.
7 MS. BRABBIT: The YWCA?
8 JUDGE MURPHY: No, the University of
9 Minnesota Outstanding Achievement Award. We should check
10 on that. Well, the ones from the women's organizations,
11 you know, Association of Women Lawyers, the National
12 Association of Women Judges, Award for Leadership of
13 Judges, the honorary degrees, they've been nice. It was
0 14 moving to be designated a Trailblazer in the Law by the
15 ABA. Having an award named after me, the Diana Murphy
16 Legacy Award, that, as I've told you, is such a cute
17 title for an award. University of Minnesota Regents
18 Award, that was again something for working on a new
19 relationship between the University of Minnesota
20 Foundation and the Board of Regents. It was politically
21 a very tricky situation to negotiate. It took a couple
22 of years. And then to have the people that you had to be
23 negotiating against, because really I was doing it for
24 the Foundation, give you this award, really it was a very
25 meaningful one. 594
1 And Monsignor Terrence Murphy, you know, I got CJ
2 that Paul Granlund sculpture of Terrence Murphy. That's
3 a very personal thing, too. Monsignor Murphy was such a
4 leader in Catholic education, higher education. And all
5 the other recipients, as I've told you, were wonderful,
6 wonderful donors, and I have only, I mean other than
7 small donations that I've just tried to contribute
8 organizational work, so that was nice. You know, all of
9 them. Whoever got some kind of recognition that they
10 didn't like?
11 MS. BRABBIT: And we'll include a list,
12 Judge, of all the honors and awards with your oral
13 history as well. You mentioned the one in your namesake,
14 and you mentioned legacy, and I want to ask about that 0
15 for a minute.
16 JUDGE MURPHY: I want to say one other that
17 I like, though, that's the Fidelis Apparitor. That's
18 faithful servant. That's nice.
19 MS. BRABBIT: That was very nice. Is that
20 the one from the College of St. Benedict?
21 JUDGE MURPHY: Right.
22 MS. BRABBIT: And that was within the year,
23 wasn't it, Judge?
24 JUDGE MURPHY: 2007.
25 MS. BRABBIT: Oh, okay. Very nice. CJ 595
/~) 1 JUDGE MURPHY: Well, anyway, back to the
2 legacy.
3 MS. BRABBIT: Let me ask you a question
4 about that. How would you want to be remembered as a
5 judge?
6 JUDGE MURPHY: Of course, to start, I would
7 want to be remembered as a fair judge, a judge who was
8 fair to all of the parties, a judge who really cared
9 about the people that were involved in these cases, a
10 judge who cared about the result, wanting it to be the
11 just result, but also conscious of how it has to be the
12 correct legal result. Trying to bring those two together
13 is often a tremendous challenge, and when you accomplish
(J 14 it, or you feel you've accomplished it, or hope you have,
15 it's a wonderful feeling.
16 I also want to be remembered as a judge who
17 affected the development of the law, and in a benign way.
18 Some of the cases that I feel the best about are cases,
19 you know, making Lt easier for people who have been
20 discriminated against to gain hope for the future, and
21 for societal injustices, but that makes it sound like
22 that's only one kind of case I care about. And some of
23 the cases that, because I was a trial judge, I feel very
24 good about are cases when I can see that the case was
25 submitted incorrectly to the jury, either in the 596
1 instructions, the verdict forms, or what evidence was n
2 left in, and that's very important, because when you're
3 in the district court, it's important to see, from other
4 examples, instances that then you can apply when you're
5 faced with difficult decisions. That's something that I
6 have to offer in our court. Not everybody has that to
7 offer.
8 Certainly the woman's perspective, or the
9 perspective of somebody who has been, you know, left out
10 of things, has affected what I've done. I like many of
11 the business cases. But I have to say that, you know,
12 those people who have groups that they have not had a
13 voice are always going to get a close look from me. You
14 know, what you do, you can really feel like you're in an C)
15 ivory tower as a circuit judge, but it affects people in
16 so many ways. Well, I could go on and on. That's enough
17 for now.
18 MS. BRABBIT: Well, thank you.
19 JUDGE MURPHY: It is almost 20 after.
20 MS. BRABBIT: Do you want to conclude with,
21 you know, you haven't mentioned your family for some
22 time, Judge. Do you want to pick up next time with them
23 or do you want to touch on that today?
24 JUDGE MURPHY: Well, I'll talk a little bit
25 about it today and then maybe we'll need to do 0 597
1 MS. BRABBIT: Do a wrap-up?
2 JUDGE MURPHY: Take it up again. Of
3 course, I'm married, and I think we talked about how I
4 met my husband. When we were first married he was
5 continuing his work at the university, continuing to
6 teach courses while he was writing papers. He wrote one
7 that's the equivalent of any doctorate dissertation. But
8 he had broken his back, you know, in a mountaineering
9 situation I may have talked to you about, and so he was
10 just cloistered working on that dang paper. I remember
11 that. Couldn't go out of the house or anything, and I
12 had this little baby. That was a very difficult time. 0 13 But his mother. was determined that he should go 14 to work, because she didn't consider his teaching job at
15 the university real work. She had a friend who was a
16 good friend of a Mr. Woodard, Lawrence Woodard, who
17 had an investment banking firm, you might say, Woodard
18 and Elwood. They hired Joe, and so that was a big change
19 in his life. Because then you go from being a graduate
20 student and slouching around like graduate students to
21 wearing a suit and tie and going to work every day. He
22 never was interested in the -- his specialty had been
23 economic history, and he was never interested in the
24 selling part. So he was hired as an analyst, and he
25 became a starter financial analyst. He worked there for 598
1 a while and, you know, was always pushing for new ways to
2 do things. He taught himself statistics, and he saw the
3 way they could be used. He foresaw so much in the way
4 those, the analysis of stocks and bonds, and people
5 thought he was crazy when he was talking about how you
6 could do it with computers and the factors that you would
7 look at and how you would do that.
8 So he was hired by the trust department at the
9 biggest bank in Minnesota. It's now Wells Fargo; it
10 bought Wells Fargo but they took the name Wells Fargo,
11 and he was doing financial analysis for the trust
12 department, and he did install this kind of analytic
13 system, financial analysis with all the modern tools.
14 And he has written books on bonds and stocks, very
15 well-received, on the stock market, on bonds. He's got
16 some clever titles, which don't come to me right at the
17 moment. And then for journals, for financial journals,
18 he's written a lot of articles. The math part is so
19 advanced that they're hard for me, although I did, at his
20 request, try to give editing suggestions and so on. But,
21 anyway, he's brilliant in ways that I am not.
22 Then he retired earlier than you might have
23 thought, I think I've talked about this somewhat before.
24 He had some difference of agreement with the way some of
25 the things were being done. And that job had restricted u 599
1 him, both of those jobs, because they were nine-to-five
2 or what have you, but five days a week. And our children
3 were now, you know, a little bit older. So he had five
4 years when he basically climbed peaks, you know, in Asia
5 and South America, and skied to the South Pole and North
6 Pole, and wrote some books, several books about, at least
7 two on mountain climbing. One about, maybe two, about
8 particular expeditions with a lot of pictures that are
9 very interesting.
10 And then he went back to work as CEO of this
11 holding company that owned WCCO Television and Radio and
12 some other stations in Minnesota and Wisconsin. He saw
13 here that the value the shareholders were getting from
14 these properties was very little. They had very small
15 dividend payments every year, but they had the
16 satisfaction of owning these significant properties, and
17 every year the family would be there at the annual
18 meeting and everybody felt very good about that. It was
19 a unifying thing. And one thing about should we get more
20 value, the value that we could get, one of the reasons
21 they didn't want to was because of this family meeting,
22 the board meeting, because they all came whether they
23 were on the board or not, you know, from various, you
24 know, from the West Coast, the East Coast, Chicago area
25 and so on.
I ."----./ 600
1 And they had two trips to Ireland in that period
2 to visit the old homestead from which my husband's
3 grandfather had left as a boy of 11. Did I tell you
4 about the cow? It· was· a potato famine, and· so they gave
5 Joe's grandfather a cow and he went to Belfast. The idea
6 was he would sell the cow, he would go to Canada, and he
7 would make enough to bring them all over there. And, I
8 mean, what a thing.
9 And then his grandfather had an older sister who
10 was living in Canada. There was a blanket that meant
11 very much to the family that she had left behind when she
12 went to North America, and he was supposed to bring the
13 blanket. He went to her house and knocked on the door,
14 he had made his way there, and she looked at him and she
15 said, "Where's the blanket?" And he said, "We had to
16 throw it overboard." There was such a storm they had to
17 throw all this stuff overboard. And she slammed the
18 door.
19 But anyway, his grandfather worked there for a
20 while, and then he made his way to Wisconsin and he
21 picked really good farming land and he became very
22 wealthy. But he did have the curse of the Irish, too.
23 Dr ink. And when he wasn't on the wagon, which was a good
24 part of the time, he would treat everybody to drinks at
25 the local tavern. But he bit someone's thumb off once, 0 601
1 is the story, when he was in his cups. But anyway,
2 that's Joe's grandfather.
3 And his oldest son became a lawyer in North
4 Dakota and he met somebody that through -- he got the
5 idea of buying this newspaper, and eventually they became
6 owners of the Minneapolis Tribune. And eventually then
7 they went into radio, too, and then the family did the
8 swap, and so they got out of the paper business. So this
9 was a difficult thing.
10 Anyway, Joe engineered a really good deal. CBS
11 bought the company, everybody benefited. Everybody was
12 happy at the end, except for two people who opted out of 0 13 the deal. 14 So Joe, that deal took about five years to get
15 accomplished, and he went to New York and, in The Rock,
16 you know, the CBS headquarters there, the building, had a
17 fancy signing thing. So that was the end of that family
18 business.
19 And then Joe retired for good. But since then
20 he has become a wonderful photographer, and he has
21 produced many books of photography. He's traveled to
22 almost every country in the world, at least 135, I've
23 maybe lost count, and he's got pictures from so many
24 countries. He's particularly interested in the people.
25 And he's put out these books, wonderful picture books, 602 C) 1 they're like coffee table books, and he gives them to
2 friends.
3 And then in the last few years, he's been
4 writing stories. They're based partly on things he hears
5 about from other people 1 stories that he knows about in
6 the family, and then he sends those to people that we
7 know. But he's really, you can see he is very gifted,
8 and he always, he's one of these people -- I'm one who
9 looks at the world and sort of tries to make it out and
10 see how, what you can use.to get the goals that you think
11 would be right for society or your group or, you know,
12 whatever. He looks at the world and he sees all that is 13 wrong. So he's really quite an amazing man. 0 14 MS. BRABBIT: So did he pass along any of
15 those characteristics and interests and hobbies and sort
16 of adventuresome spirit to your two sons?
17 JUDGE MURPHY: Well, yes. I mean they both
18 went on mountain climbing expeditions with him. But I
19 think I may have told you that the older son, Michael,
20 who i& very rational in his approach, overly rational
21 sometimes, when they were climbing this big mountain in
22 the south of Germany, they got lost on the mountain when
23 it was dark. They continued going down, which seemed
24 like a dumb thing to do, but I suppose it could be
25 dangerous just staying there, too. I mean Joe would 0 603
1 know, I suppose. And he became aware, he's very
2 analytical, that at any step as he was going down he
3 could, he didn't know if he would find a footing, he
4 could be dead. He decided this was not worth it, and he
5 never went -- He did go with Joe to Everest Base Camp, he
6 was interested in Tibet, but he never went climbing
7 again. But John did.
8 But, you know, one time we went for three weeks
9 to Salzburg, which is so much fun. I love any
10 Germanic-speaking country, the culture and everything,
11 and I love opera, so Salzburg is terrific. We rented an
12 apartment and John and Joe climbed a lot. It was always C) 13 worrisome for me when the children went though. But John 14 doesn't do it anymore. You know, they're in their 40s,
15 their backs hurt.
16 MS. BRABBIT: Both boys are married?
17 JUDGE MURPHY: Yes. And Michael is the one
18 that, perhaps I told you, when he was about eight years,
19 out of the blue one day he said marriage is a bad deal
20 for the man. And I said what? And you have to realize
21 I'm a full-time housewife with two little kids, my
22 husband is every night over at the university using
23 resources there for his writing and stuff, doesn't help
24 out with the kids at all. Anyway, he says marriage is a
25 bad deal for the man, and I'm never going to get married. 604
1 I'm never going to get married, but if I do, it won't be
2 until I'm 50. Well, I thought this is just ridiculous,
3 of course, and I asked him why. And he had figured out
4 the exact co~t of a child from the time that you have
5 them at the beginning -- I mean at eight years old. And
6 this is like Joe, you know, he had figured out the cost.
7 It was a huge cost, because he had figured in college
8 education and everything and, you know, why would he want
9 to have to be spending that money, you know, on these
10 other people when he could do something himself. He
11 didn't say that, but he did have the financial numbers he
12 had figured out. And Joe's father was 50 when he married 13 his mother. The Irish were very, very prone to marrying () 14 late. And Joe was 28, so he was a pretty young child to
15 get married.
16 And so as time went on and he had, you know,
17 Hannah, his now wife, had spent 23 Christmases with us,
18 and he had lived with her in Germany even before she
19 started coming for Christmas, so this is a long-term
20 relationship. I began thinking that he knew what he
21 but he actually got married two years ago. So he got
22 marr~ed when he was 47. He came close. And now he says,
23 you know, he wished he had gotten married sooner. He's
24 so happy, and it's really nice to see. But they're very
25 happy, and she's got her green card, and she's a very 0 605
1 smart woman.
2 I don't know if I mentioned this before. She
3 was the, like the old-fashioned secretary here that
4 became a vice president when people began to realize that
5 women were acting in that capacity. She did the annual
6 report for this international drug company and was, you
7 know, secretary to the top guy, but she never went to
8 college. Knowing Michael opened up a whole new world for
9 her. He speaks German without any accent, and the reason
10 he does is because he's so disciplined. This is like his
11 father, too. He hired an old actress to give him lessons
12 on speaking. He has absolutely no accent, it's most 0 13 unusual. There are people who speak German fluently; 14 usually, though, with grammatical mistakes. But, no,
15 he's perfect on that, too. He's so widely read in German
16 literature and history.
17 And now he's in the, you know, the work that
18 everybody is trying to be in, several generations, and
19 that is, you know, film director and doing screenwriting
20 and so on. He did very well at USC, a graduate program.
21 He taught in it and made a full-length feature film and a
22 number of other films. He has been hired by other people
23 to help them with screenwriting. And any day now he
24 could make it big, but you just never know. He has a
25 house in North Oaks where my other son does, but he also 606
1 has to spend a considerable amount of time in the LA area
2 for reasons that are obvious.
3 And John is, just turned 47 this week, this last
4 week. He married Suwanthee, a talented woman from
5 Thailand. She graduated from Mankato State University
6 and worked as a designer until their children were born.
7 John and his wife have two children, one just turned
8 four, and one is two and-a-fourth, and they are darling.
9 It's been wonderful for me having girls, you know. I
10 loved having the sons. And these grandchildren, you
11 know, where you aren't the one that -- well, the reasons
12 everybody loves grandchildren. You also know that each 13 fleeting moment is a fleeting moment so you can ('\ '-_) 14 appreciate it more. Also because you're not doing the
15 work, of course.
16 And John, I'm sure he is a major caretaker of
17 these children. John is very smart and also gets along
18 well with others. He's so good with children. Once
19 they're in school I'm sure he'll go back to work. He was
20 working for, and still does some work, for this beef
21 company. He's worked to get licenses in Germany and
22 Europe, and is their contact with this German supplier.
23 He speaks German well and studied at the University of
24 Bonn after he graduated from Northwestern. I suspect
25 that after the girls are in school he'll, you know, find
(··. ...__) 607
1 something more. He's gotten into community activities.
2 He's been on a board that he's really enjoyed, the
3 Graywolf Press. It's been fun for me seeing him do it,
4 and do, what appears to me, to do a good job. That's
5 enough for today.
6 MS. BRABBIT: We'll break, Judge, until
7 next time. Than.k you.
8 (End of session.)
9
10
11
12 () 13 14
15
16
17
18
19
20
21
22
23
24
25 608
1 (May 21, 2009.)
2 MS. BRABBIT: Judge, thank you for
3 convening again today. It's May 21st, 2009, and we are
4 picking up where we left off. -wher~ would you prefer to
5 begin?
6 JUDGE MURPHY: We were chatting about the
7 speech that I gave at the Federal Bar Association
8 yesterday. I hadn't spoken there for a long time and so
9 they asked me to come, and I chose the furthest date away
10 from when I was invited, but then the time comes and
11 you've got to work up the speech. I decided that I was
12 going to talk about memories of the district court,
13 really in a humorous, you know, telling some humorous
14 stories from the district court, but also, you know,
15 t~ying to talk about some significant things. Because
16 I've been asked so often which job I like better, I
17 started off with that. I mentioned to you that one of
18 the things -- well, I got a lot of laughs, so I was very
19 pleased because I'm not a natural humorist. But I
20 noticed that the lawyers and the judges laughed at
21 different things, some different things. One of the
22 things that the lawyers really laughed out loud at was I
23 had a section where I was talking about how emergencies
24 are so much more immediate in the district court. I
25 talked about TROs and how they get handled and arise and C_) 609
1 so forth, and I had one sentence in there referring to
2 the fact that sometimes the written materials would be
3 voluminous, obviously prepared well in advance of the
4 emergency. There was a really loud, knowing laugh that
5 came from the lawyers.
6 And then there's a case where a terrible
7 individual implicated in a trial that turned out to be a
8 civil murder trial was an expert in avoiding service of
9 process. Over the years the lawyers that were trying to
10 prevent his recovering millions of dollars on some
11 insurance policy insuring the life of his half sister,
12 whom they felt he had murdered, tried to depose him but 0 13 they could never get service of process. There were many 14 stories about him. The garage door, for example, opening
15 and him zooming out in a car, and running from process
16 servers and so forth. So we're in the trial, and
17 naturally they want to get him to testify in front of
18 that jury, so they finally got and I'm telling about
19 how a wily process server finally achieved success. He
20 hid behind a large bush in the suspect's yard and waited,
21 and then when the suspect opened the door of the attached
22 garage just a crack to toss out his garbage, the process
23 server leapt up and managed to throw the testimonial
24 summons into the garage and it landed at his feet, you
25 know, just as the garage door is closing. 610
1 So then there was the issue, debated by the
2 insurers and the foundations that had the insurance
3 policy, this fellow was the trustee of these foundations,
4 about whether that process was effective. So in my
5 remarks, this is much longer-winded, but when I said that
6 I ruled that the service was effective, there was a big
7 laugh. That could have come from both sides. And then I
8 said I got a call from Joe Friedberg, and there was
9 another laugh, because this is a well-known criminal
10 lawyer ~hat is turned .to as a lawyer of last resort if
11 you're facing big trouble as a criminal. He was offering
12 to bring in the suspect to testify on condition that he 13 wouldn't be arrested on the spot. So I did that, I told () 14 the marshals they couldn't arrest him. He came in and he
15 was asked about 25 questions, and they were really very
16 pertinent questions, because the main trial lawyer was
17 from Lloyd's of London, and was he a good lawyer. The
18 ones that had pursued him over the years were some local
19 insurance lawyers that were very courageous because this
20 guy was really dangerous; as it turned out, he murdered a
21 subsequent lawyer.
22 Anyway, so the questions were very good, and
23 they were sequential and so on, and he took the Fifth
24 Amendment to all 25 of them. You rarely see that,
25 because in a criminal trial you can't ask the question, u 611
1 and in the civil trial only under certain limited
2 circumstances. Boy, you could have heard a pin drop.
3 And, of course, by the time in the trial when he came in,
4 they had heard this guy's name so many times, and to
5 actually see him come in and take the witness stand and
6 then plead the Fifth Amendment, it was something.
7 MS. BRABBIT: I heard from a number of
8 judges and attorneys how much they enjoyed your remarks
9 at the Federal Bar Association last night.
10 JUDGE MURPHY: One area that surprised me,
11 though, was that people, you know, because in the '80s,
12 probably mid '80s, Posse Comitatus was very active in the 0 13 state of Minnesota, and they had these weird theories 14 about why we didn't have jurisdiction over their cases;
15 that because of the type of flags we had, that we only
16 had maritime jurisdiction and so on. Well, you've got
17 the copy of it, I don't have to go into it, but that had,
18 most of the people there didn't know anything about the
19 Posse Comitatus. You know, it's true that things go
20 £aster than you realize. The judges, of course, that had
21 been on the bench when I was, knew all about it, but Todd
22 Jones, the former U.S. Attorney, and who is going to be
23 U.S. Attorney again, he said to me, why would they --
24 because they dressed up just like our courtroom deputies.
25 One day, all of a sudden, they appeared in the back row 612
1 of each of our courtrooms, and he said, what were they
2 trying to do, you know. Even Todd Jones, you know, and
3 they were trying to gum up the works.
4 MS. BRABBIT: Judge, I know you also wanted
5 to --
6 JUDGE MURPHY: I wanted to, I was just
7 looking over, I mean, gosh, I've run on for so long, and
8 I had that 500, it was just about 600 pages of transcript
9 that I looked over to see if there was just something
10 that would be so -insulting to someone that was still
11 alive that had to be changed. But in reading it over, I
12 noticed that at the time that we spoke at the end of June 13 in 2008, we talked quite a bit about this Yankton Sioux () 14 case and how I thought, after I had remanded it and the
15 Supreme Court had denied cert, I had the, you know, vague
16 hope that the parties had settled it in some way because
17 I never heard anything about it, these years had gone by.
18 And then I believe there was a little bit of a flicker of
19 activity because there was a motion for writ of mandamus
20 trying to stop the district judge from proceeding in the
21 way that he wanted to, and taking up what he was supposed
22 to on remand.
23 Well, I can tell you that in March of this year
24 I heard the appeal from what he decided, and it was a
25 very dramatic courtroom that day, period. I just noticed 0 613
1 he said -- the transcript goes on and on and on, and the
2 sentences never end. The Yankton Sioux Reservation is a
3 long ways away, it's in South Dakota. You have to cross
4 the full state of Minnesota and then go halfway across
5 South Dakota, but they had come in a couple of buses. It
6 was filled, the main courtroom over in St. Paul. It was
7 filled with Indian people that had come, including the
8 chief with his chief headdress, looking a little moth
9 eaten, and then an Indian whom I had seen before when the
10 Sentencing Commission had gone out to hear testimony out
11 in Rapid City about the sentencing guidelines and how
12 they affect Indian people. He stood out. He was a very 0 13 tall, younger man with a very dramatic costume, and he 14 was there in this same costume. And then there were many
15 Indian people of all different ages. And it's quite
16 moving to see the people in the federal courts; that they
17 thought it important to be there. Anyway, we had, oh,
18 voluminous evidence, many maps showing some land where
19 clusters of Indians were living.
20 At any rate, so now we have this huge, huge
21 record, and we are working on it, and hope to be, well,
22 for sure, we'll issue an opinion in the summer. When
23 it's done I can't say because it's very, very demanding,
24 all these historical references and maps and legal
25 arguments and so on. But, anyway, it's another step in 614
1 it. 0
2 And then yesterday I talked with our chief
3 judge, because it's his birthday today and I wanted to
4 wish him happy birthday yesterday so I would be sure I
5 did it, and we got talking about various things. He
6 complimented me on my talk. It was nice of him to bother
7 going. Then he told me that he had been meaning to tell
8 me that a panel that he was on had gotten a related case.
9 In it, the tribe is now wanting to go beyond what Judge
10 Piersol ruled on remand, and is laying claim to all the
11 land that the Corps of Engineers took.
12 And we also talked, a year ago, pending in the
13 Supreme Court was my case about Indian tribal
14 jurisdiction, and I said that I thought the arguments had
15 gone well. And one of the reasons I thought that was the
16 Chief Justice spent a lot of time talking with the lawyer
17 that was representing the tribe, and he was one of that
18 select group, like Chief Justice Roberts, of this small
19 group that are the leading oral arguers in the Supreme
20 Court, and so he appeared to, he was really interested in
21 talking to this lawyer about his theories and so on. And
22 I realized that at the time that it might have just been
23 he enjoyed sparring with a peer, you know.
24 MS. BRABBIT: Um-hum.
25 JUDGE MURPHY: Because he wrote it the u 615
1 other way. But Justice Ginsburg wrote the dissent, and
2 she sent me a very nice compliment about my opinion on
3 that, on a copy of the slip opinion.
4 So, you know, it's -- well, the development of
5 law is so interesting. And when I was talking yesterday
6 about the difference between being the trial judge and
7 the judge on the Court of Appeals, I said each has its
8 own attractions. Certainly the role that you can play in
9 developing the law is one of the great attractions for
10 me, you know, in the Court of Appeals. Okay. Well, I
11 did want to mention, I mentioned those two.
12 I noticed, in looking over the transcript, that
13 we seem to have spent all the time talking about, you
0 14 know, sort of court administration things or, you know,
15 what I've done with the Federal Judges Association or
16 Board of the Federal Judicial Center. I don't know that
17 we talked about what I did for the Court Administration
18 and Case Management Committee, which is one of the key
19 Judicial Conference committees. We certainly must have
20 talked about the Sentencing Commission that I chaired.
21 The Federal Judges Association, what I did to get
22 legislation for, the only legislation that was a pay
23 raise for the judges, as opposed to cost-of-living
24 increase, so all of that is, you know, has significance
25 for judges and judicial administration. 616
() 1 I know we talked about my community work and so
2 forth, all of which I have found very engrossing, and
3 many times it helped me in my judicial work because you
4 learn a lot of things. You learn a lot about balance
5 sheets and finances and being on the board of some of
6 these institutions. You learn about, something about
7 persuading other people, which is a need on an appellate
8 court. It keeps you from going crazy sometimes, you
9 know, because some of this work is very high pressure.
10 But I thought there's a lack hexe of, you know, what my
11 real work has been, why I would be, you know, asked to do
12 my oral biography about being a trailblazer in the law. 13 In that I thought, well, one easy way to prompt one's C) 14 memory was to look at the noteworthy cases in the Federal
15 Almanac, Almanac on the Federal Judiciary, because you
16 have the opportunity to put those in and take them out.
17 And I've never wanted to put too many in, but now and
18 again I have suggested some.
19 And now I've got my clerks working on writing up
20 a little thing about the en bane decision that we just
21 issued in the Gregory versus Dillard's case, which we've
22 talked about in this book, and which now the en bane
23 decision was published about a week ago. And, what do
24 you know, it came out six to five. This was really
25 pretty amazing, because this is a conservative court; u,,- ' 617
1 three judges concurring completely in my dissent, and a
2 very key judge in terms of this particular case, because
3 it is a Missouri case, Judge Benton, wrote a short
4 opinion concurring and dissenting. For my purposes, he
5 concurred in the most important part. He concurred in
6 the lengthiest part of my opinion, which is dissenting
7 from the affirmance of the summary judgment against the
8 leading plaintiffs. And, very significantly, I had
9 written in the panel opinion when there was a majority my
10 way, I had reversed the district court, which it sort of
11 summarily treated the Missouri statute under which there
12 were state claims, as not covering this. He agreed with 0 13 the panel opinion, panel majority, and said 14 MS. BRABBIT: Judge Benton?
15 JUDGE MURPHY: Yes, he did, and the
16 significance here is not just that he's a good judge, or
17 that he's a Missouri judge, but that he was on the
18 Missouri Supreme Court, and he cited a case that's a
19 recent case in favor of the position that I had taken in
20 that panel majority. But he concurred in the majority
21 opinion in dismissing the 12(b) (6) plaintiffs in
22 affirming that. In my view, that was, you know, that's
23 sort of a close call; was there sufficient pleading. I
24 thought under Trombley there was, but it's a close call
25 because it was rather skimpy pleading. 618
n\ / 1 So I'm very pleased with how it turned out.
2 It's getting a lot of attention, and I hope it will get
3 some attention in Congress. To the extent that a law
4 they pass is not enforced in a way, or interpreted in a
5 way they intended, then they should do something about
6 it. And, you know, the two sides of the case have
7 different ways of looking at what the law is, so I think
8 it would be helpful if, you know, somebody in Congress
9 does take a look at it. It's up to them, of course, how
10 they-want the law to be interpreted and the coverage of
11 it.
12 And I'm shortly going to circulate an en bane
13 opinion in a case called Shawanna Nelson versus Norris.
14 It's a 1983 case by a former prison inmate who entered
15 prison pregnant and gave birth shackled to the bed
16 throughout her labor. I wasn't on the original panel, so
17 it's rather unusual to have gotten the assignment for
18 what I'm assuming is a minority dissent. However, this
19 is a case in which, judging from the conference, I have a
20 real chance to swing enough votes, but we'll see.
21 In looking over some of these other cases, three
22 of these cases are district court cases. One, the
23 Jaycees, had a very short trial, it was a court trial,
24 and that related to the Jaycees' evidence that they
25 originally put in the record about why they needed to be 0 619
1 a men-only organization, and about their auxiliary that
2 the women belonged to. When they lost in the district
3 court and went to the Court of Appeals, they argued all
4 new reasons about the importance of men to their getting
5 better, and the Supreme Court threw out why they weren't
6 able -- because it was a First Amendment -- why they
7 weren't able to get their First Amendment message across
8 if there were women in the group. But that wasn't the
9 way it was argued in the trial court.
10 The Mille Lacs case, which is mentioned in this
11 thing, was a three-week trial, I've mentioned it before,
12 court trial. Absolutely one that should have had a movie 0 13 camera for the whole thing. It was such a cast of 14 characters that testified from both sides. Never an
15 unnecessary question. Really top presentations. I found
16 some of the testimony very moving, all of it fascinating.
17 And I mentioned the 150-page findings that I did
18 afterwards, and I think I just said the trial lasted
19 three weeks.
20 Then the other one in here that's mentioned is
21 the 1983 case about the outbreak of tuberculosis in the
22 state prison and what the state knew about the illness
23 there and what they knew about the disease, and what they
24 did and didn't do, and so that's mentioned there. That
25 was a rather lengthy trial. There were a number of 620
1 inmates that testified and, you know, it was the experts,
2 of course, on tuberculosis, and the people that tried to
3 contain it, or set the standards in the prison, the
4 health-people,· as well a-s the prison. Very interesting
5 trial, and it was very moving. The people that -- it was
6 a deadly form of tuberculosis -- that contacted this
7 tuberculosis when it wasn't necessary; that it spread,
8 you know, by the knowledge that existed at the time. So
9 that was quite, I don't remember offhand how long it
10 took, but it was a 1£ngthy trial.
11 And, of course, in that talk yesterday I talked
12 about quite an interesting trial, another one you'd buy a 13 ticket to, that I just happened to my memory was () 14 refreshed because when I was asked to speak at this
15 insurance institute I thought, well, do I have anything
16 to tell them about any insurance stories? And I thought
17 that was a good one because it helped put the insurers in
18 such a good light that they liked that story.
19 And if I went back in my memory, you know, and
20 really worked on it, I could think of a lot of really
21 interesting ones. And I did refer to some of the deadly
22 court trials where they thought they didn't have to
23 prepare in the talk yesterday. But you know, this is not
24 a lengthy list of cases that I've handled on the Court of
25 Appeals. (j 621
1 MS. BRABBIT: When you say "these cases,"
2 Judge, just so the people understand, these are cases
3 that are also contained in the Almanac of the Federal
4 Judiciary?
5 JUDGE MURPHY: Right, um-hum.
6 MS. BRABBIT: Okay.
7 JUDGE MURPHY: And as I said, we're going
8 to send two new ones. One will be the en bane case
9 that's just been decided, just filed, and the other one
10 I'm going to send is a case called U.S. v. Tom, Roger
11 Tom. The issue is one that the Fourth Circuit had
12 already decided against the government written by my
13 friend, Judge Diana Motz, who I think is a very good
0 14 judge. So the end result is that the opinion for the
15 panel of the Eighth Circuit, written by Judge Diana
16 Murphy, goes the other way. So the two Dianas, who might
17 normally be expected to be on the same side.
18 In the Adam Walsh Act, Congress was concerned
19 about predators, sexual predators against children, and
20 children being abducted and being victims of pornographic
21 films and various things. There's a portion of the Adam
22 Walsh Act that is called SORNA for short, by acronym, and
23 that requires people that have been convicted of a sex
24 offense in any state to register when they cross state
25 lines. So that's been, I wrote a decision on that, too, 622 () 1 upholding that under the Commerce clause. I've had a lot
2 of challenges. But this part of the act that's
3 challenged is a provision providing that when a sex
4 offender is about to be released from a federal
5 correctional institution, the BOP is to examine the
6 person to see whether they are a continuing danger to
7 children, to society, and, if so, they are not to release
8 the person. The person gets informed of their rights to
9 have a hearing before a judge, and I believe actually
10 there may be an automatic hearing before a federal
11 district judge. Then the government has to prove, by
12 clear and convincing evidence, that this individual is a
13 threat, a present threat. If the district judge finds
14 that the person is, well, they could be appealed, too. 0
15 If the courts ultimately uphold this person being
16 continually held despite his prison term having run out,
17 then the Bureau of Prisons has to contact the state, if
18 the state has a program for these people. A large number
19 of states do have programs, like Minnesota has a program
20 for civilly committing sexually dangerous persons, and so
21 far perhaps nobody has ever gotten out of that program in
22 Minnesota. There have been a lot of constitutional
23 challenges to it, but, you know, society is so concerned
24 about these serial sex offenders.
25 And so the Fourth Circuit decided, and there's a l) 623
1 petition for cert that's been filed, but the petition for
2 rehearing was denied, that it was unconstitutional, that
3 there wasn't any basis in the Constitution that gave
4 Congress the right to pass that law. And so this js the
5 first other circuit that's ruled on it. And it seemed to
6 me that there's a case called Greenwood versus United
7 States that related to a similar statute, that was also
8 an Eighth Circuit case, where the Eighth Circuit sided
9 with the government and the Supreme Court affirmed. That
10 was a case where it allowed the Bureau of Prisons to
11 continue to hold somebody before trial if they were found
12 by psychiatrists there to be not triable. And, of
13 course, it was constitutionally challenged, and basically
0 14 it was found to be authorized by the necessary and proper
15 clause.
16 So my question to the United States at the time
17 of oral argument was, "Is that your best case?" And, of
18 course, it is the best case. The Fourth Circuit
19 distinguished Greenwood. It's distinguishable in that
20 that's a pretrial holding. Hopefully, the person is
21 going to get well at some point and they will be able to
22 have their federal trial, and there's federal
23 jurisdiction over that person that's there.
24 Here the argument was made against the
25 government's point of view that there's no federal 624
1 jurisdiction here anymore. One thing they've overlooked
2 is that when the person gets out of prison, they still
3 have a supervised release period. Supervised release.
4 So it isn't like there's all jurisdiction lost at this
5 point. And just from the commonsense point of view, most
6 of these people are going across state lines when they
7 get out of prison, because most prisoners are not
8 imprisoned in the same state in which they live or where
9 they commit their offense. But from the practical point
10 of view, we all knDw .the states' interests are very
11 important, but are the states really going to want to
12 have these people unleashed to come back to their state
13 with nobody looking over them? Especially if they have
14 one of these programs, they're going to be able to take 0
15 them back, but the states that don't have a program of
16 this sort, you know, these serial predators. But anyway,
17 that's not the constitutional issue. But we had, I
18 thought, a pretty good opinion. We didn't ever say that
19 it could be based on the Interstate Commerce Clause,
20 although we indicated there were some reasons why it
21 might be, you know, but rested on the Congress's power to
22 do what's necessary and proper related to their
23 jurisdiction. So it's very, very interesting. It will
24 be interesting to see what the Supreme Court does.
25 And Lopez and Morrison were, of course, the big C> 625
1 cases that the Fourth Circuit relied on. Lopez being the
2 gun case, where Justice Rehnquist, it didn't seem to him
3 that the federal government had any interest in trying to
4 keep guns out of the proximity of schools. At the time
5 he wrote Lopez, it was before Columbine and so forth, I
6 think, and the idea of guns being a, you know, connecting
7 with schools didn't seem like -- and Morrison was, of
8 course, the violence against women.
9 MS. BRABBIT: Tell me again, Judge, who
10 wrote the opinion in Lopez?
11 JUDGE MURPHY: I believe it was Justice
12 Rehnquist.
13 MS. BRABBIT: Okay. And Morris was the
0 14 JUDGE MURPHY: Morrison is the violence
15 against women. And there, there was a lot more. They
16 had deliberately put in some legislative findings but it
17 didn't do the trick. The Congress was, if it had gone
18 past this Congress, it probably would have. Well, it
19 passed, but it -- I don't remember who wrote the opinion.
20 But, anyway, we distinguished Lopez and Morrison and so
21 forth, and so those are interstate commerce issues. They
22 don't control if the Congress had necessary and proper
23 clause basis for jurisdiction. So it was very
24 interesting.
25 MS. BRABBIT: Do you have any other
''-.__ ,/ 62 6 () 1 upcoming cases, Judge, that you would like to talk about
2 or mention to the extent that you can do that?
3 JUDGE MURPHY: Well, I mean just last week
4 we had some really interesting issues. One comes under
5 the Environmental Protection Act, and the state has to be
6 in one of those cases by what Congress has said, and can
7 choose either to be a plaintiff or a defendant. The
8 state chose to be a plaintiff because it didn't want to
9 be associated -- this is the reason that they gave --
10 didn't want to be associated in the public mind with
11 somebody that would be -- it's a sewer district defendant
12 accused of violating the Clean Water Act -- they didn't
13 want to be a defendant for that reason. And so the sewer
14 district has got counterclaims against the state, which CJ
15 would have potential big buck consequences if the sewer
16 district prevailed. Say the government recovers against
17 the sewer district; then who's going to pay? So that's
18 one part of it.
19 And then another part is a motion to intervene
20 by a number of.companies like Anheuser-Busch and about 22
21 entities who are users of the sewer district, but big
22 users, and they're saying that they have a right to
23 intervene. And the government, the federal government,
24 is saying they don't have any interests that are unique
25 and distinct, and so all of the entities, they don't have u 627
1 a right under the Act, and also they don't have a right
2 under Rule 24. So those are the issues in those two
3 cases that are associated. Interesting cases.
4 And then there was a really interesting criminal
5 case with, there's a lawyer named Mark Arnold, who is a
6 really good lawyer. It's such a joy when you -- and when
7 I picked up the big, thick brief when I was preparing for
8 court week and I saw his name on it, joy; I knew it was
9 going to be a pleasure to read, and I knew there would be
10 a wonderful oral argument. So this individual is charged
11 with mail and wire fraud and bribery, convicted of both,
12 and the argument on the first is that the government blew
13 its case by resting only on -- involved in this is
0 14 somebody that trains people for driver's licenses. The
15 government presented the case as a thing of value that is
16 being, the citizenry is being deprived of -- this relates
17 to the mail and wire fraud counts -- the public official,
18 who is a thing of value, property value.
19 Well, there's a Supreme Court case saying that a
20 driver's license is not a property item, so they could
21 have been bringing the case on, and they lost the value
22 on a service by this public official with this fraudulent
23 action. The lawyer named Mark Arnold is saying they blew
24 it, you know, they didn't have, they didn't bring any
25 evidence, they didn't bring in the jury. Well, the jury 628 () 1 wasn't instructed on this, and it wasn't in the closing
2 arguments. Well, we've got to go over, we have to go
3 over the whole record. But it was very clever the way
4 they did it, perhaps, because they just made a motion
5 for, at the end of the government's case and at the end
6 of the case, for insufficient evidence. But they didn't
7 articulate that they had missed the wrong prong, that
8 they had just focused on one prong and that that was the
9 fatal prong, until after judgment. And then they had a
10 motion to JNOV, so to speak.
11 And then the other big part, his big argument
.12 there is that actually this was a gratuity, not a bribe,
13 so he can't be convicted under that statute. And he's
14 gone through the legislative history of how the statute
15 got to have some different wording for his theory on the
16 gratuity. And the case standing in his way is called
17 United States versus Zimmerman, written by Judge Murphy.
18 That related to a councilman here, city council in
19 Minneapolis, that was convicted and is in prison.
20 And so when he started his argument, you know,
21 he's looking right at me. I said, "Why are you looking
22 at me?" But anyway, he had, he believed that Zimmerman
23 was decided incorrectly. So then you have the problem of
24 how delicate to be. He said, you know, he had gone back
25 and he had read the brief written by the defense lawyer 0 629
1 in the case, and so his argument was directed around the
2 fact that the lawyer had misled the court, because
3 obviously the court would not make an incorrect decision.
4 So anyway, I mean we, we're writing that case, too, and
5 it's going to be really interesting developing.
6 MS. BRABBIT: What's the name of that case,
7 Judge?
8 JUDGE MURPHY: United States versus Redzik.
9 MS. BRABBIT: R-E --
10 JUDGE MURPHY: D-Z-I-K, I think. It's
11 somebody from Bosnia that had a trucking company. He had
12 to have his drivers all get licenses. It's quite
13 entertaining, the evidence, because according to the
0 14 theory of the government, and apparently this isn't
15 contested, some of these drivers didn't know how to use
16 shifts, they had never driven with a shift, and that was
17 part of the test. So the person that was running this
18 operation for the state, that had the concession, had
19 told Mr. Redzik -- Mr. Redzik had said, well, they don't
20 know how to, he was giving short tests for them, theory
21 of the case, they don't know how to do that kind of test.
22 Don't worry, I guarantee you they'll pass. That's part
23 of the government evidence. Anyway, interesting case.
24 MS. BRABBIT: And Mr. Arnold provided us
25 with an interesting tip on trial advocacy. 630 () 1 JUDGE MURPHY: Exactly. First, he writes a
2 very clear brief. What I look at first is the outline
3 that the lawyer has done. I think I've probably told you
4 that b~fore. It's clear from the first page, because the
5 first page is about this wire and mail fraud related to
6 the public duties of a public official. It's clear right
7 away what he's up to, on both of them. Immediately you
8 see it. And then you read in the brief and you see how
9 the evidence could be interpreted just along his way.
10 And BO it wasn't just his oral advocacy.
11 MS. BRABBIT: Fine example.
12 JUDGE MURPHY: Yeah.
13 MS. BRABBIT: Are there other cases, Judge,
14 that you would like to highlight or talk about? 0
15 JUDGE MURPHY: Well, I might say, you know,
16 I'm just looking at this Almanac entry, because one of
17 the cases that was cited last week was a case called
18 Concord Boat Corporation versus Brunswick, and that's a
19 2000 decision, cert denied, and that has been a very
20 influential case. There aren't that many antitrust
21 cases, although it was quoted at length -- have I already
22 said this to you on the tape or just off the tape?
23 MS. BRABBIT: Off the tape.
24 JUDGE MURPHY: at length when the D.C.
25 Circuit was deciding the big Microsoft antitrust case. 0 631
1 They quoted, at length, from my opinion in this. The key
2 part was, in overturning this $142 million judgment, I
3 could see as an old trial judge this had not been
4 submitted to the jury in the proper way. There were
5 individual theories, several individual theories of
6 liability, and it didn't require the jury to designate
7 what the damages were linked up to. It's a simple thing,
8 but it turned out to be fatal there. And so it's cited
9 on that an awful lot, it's cited on the Clayton Act
10 statute of limitations on a continuing violation, and
11 what's required to put in a prima facie Sherman Act case.
12 And also I held that the plaintiff's expert opinion
13 should not have been admitted because, and they had a
0 14 real fancy expert, because it didn't take into
15 consideration some key facts of the evidence. So you
16 could see why this case could be instrumental in a lot of
17 other ones, or they try to make it instrumental.
18 I mean look at this Rogers case in Little Rock;
19 you know, that rape by a police officer violated a
20 woman's substantive due process. I believe that there is
21 a dissent in that case. There was a terrible struggle
22 with the panel because they couldn't see it was a
23 constitutional violation for a police officer who stopped
24 a woman for a driving offense, and he said -- she didn't
25 have her license -- and he said, well, let's go to your 632
1 house and you can find it. He then pushes her down on
2 the bed and rapes her. I mean it's such a violation of
3 your body.
4 Kinsey v. Wal-Mart, that's been cited a lot
5 about what is an abusive and hostile work environment
6 related to punitive damages, too. Just so you know, some
7 of these were where women, Hathaway v. Runyon I may have
8 mentioned already, because that called for a lot of work
9 on my part to show why it was such a hostile environment
10 where this woman is in this little room with all these
11 men, and I think we talked about that before. You asked
12 me the name of the case where they were making the 13 genitalia out of the pig fat and sending it down the () 14 line, and this woman was trying to work under conditions
15 like this, and that was Madison v. IFB.
16 MS. BRABBIT: Was that IBP? I, Bas in
17 boy, P as in Peter? The Iowa Beef --
18 JUDGE MURPHY: Iowa Beef Processors, a 2001
19 case.
20 MS. BRABBIT: That's also in the Almanac,
21 Judge, is that right?
22 JUDGE MURPHY: Yes. I just happened to be
23 looking at the Almanac, and I'm just glancing to see.
24 Each of the cases in this Almanac, I think, are really
25 significant cases or I wouldn't have suggested that they () 633
1 go there.
2 MS. BRABBIT: How often do you submit to
3 the Almanac?
4 JUDGE MURPHY: Oh, many years I don't
5 submit because I don't want to clutter it up.
6 MS. BRABBIT: Okay.
7 JUDGE MURPHY: This last year I submitted
8 one; it should be in the next issue. I think the Almanac
9 would be happy to print as many as you send because it's
10 bigger and maybe costs more, I don't know. But I wrote a
11 dissent in a case, Planned Parenthood Minnesota, North
12 Dakota, South Dakota versus Rounds, which the majority
13 upheld the most extreme anti-abortion statute that has
0 14 ever been upheld, so it is significant. As I said, they
15 bypassed important principles of constitutional law laid
16 down by the Supreme Court protecting a physician's First
17 Amendment rights and prohibiting states from placing an
18 undue burden on a woman's right to choose. And as I say,
19 I didn't, you know, there are lots of district court
20 cases I could have put in here.
21 MS. BRABBIT: I know you probably can make
22 that decision on a case-by-case basis, but are there
23 general criteria that you consider when deciding what to
24 send to the Almanac?
25 JUDGE MURPHY: If it's a case of first 634
1 impression, like Quick v. Donaldson. I mean obviously
2 these Indian cases are cases that had such far-reaching,
3 immediate impact, that that goes without saying. Some
4 kind of a legal question that hasn't been dealt with or,
5 as I say, on this question of the hostile environment.
6 That's not that there aren't other cases that discuss the
7 issue of hostile environment, but I put these cases in
8 because I thought that they illustrated what a hostile
9 environment is better than many others. The tendency of
10 a lot of judges is to separate all the facts, whereas
11 your life as a worker is a whole, and if every week
12 something bad happens to you, that's going to make your
13 life miserable, regardless of the fact that it didn't
14 happen again this month, but happens next month and so
15 on. So that's what I would say is try -- and some of
16 these subsequently become the law in my circuit or they
17 get picked up elsewhere, so it might not look like it was
18 a matter of first impression.
19 MS. BRABBIT: Is there any coordination
20 among the judges about what to submit or
21 JUDGE MURPHY: No. The Almanac follows a
22 practice. They have lawyers that they contact and ask
23 about the judges, what they think of the judges. And
24 what lawyers they contact, we don't have any idea. And
25 every now and then they'll change it a little bit, but 0 635
1 basically you get what you got at first, you know, when
2 you first start, because they ask the questions and they
3 don't necessarily go back and ask again, But as far
4 as -- they're willing to put in anything, apparently;
5 they've never turned one of these down.
6 I also have another reason for doing this, and
7 that is I think when potential law clerks are, I know
8 that many law students who are thinking about clerking
9 look at the Almanac and they look at the cases, and a lot
10 of times they will show up with a copy of a particular
11 case they thought was interesting. One of the ones that
12 I eliminated that I really am mad I did was about, the
13 whole thing was about the gold standard. All these years
0 14 later, the lease of this big building in Des Moines, big
15 office building, was still controlled by the gold
16 standard, and that was really interesting. And we had
17 that case come through three times. We had the fanciest
18 kind of lawyers that came. I should never have taken
19 that one out.
20 MS. BRABBIT: The name of that case, Judge?
21 JUDGE MURPHY: I don't know, I would have
22 to go back in time. But when I talked about the law
23 clerk coming with the case, I remember one, the
24 applicant, pulling that decision out of his pocket. At
25 that point I hadn't caught on that they look at the 636
1 Almanac, and so I thought, why does this student know 0
2 about this case, you know. So then I think, well, now
3 I'd like these to reflect who I am, so to speak, so that
4 they could see what it might be like working for this
5 person, because these are being written by me or under my
6 supervision. I put in dissents as well as majority
7 things. And so I've got that goal, too.
8 MS. BRABBIT: Wonderful. We've spent some
9 time now talking about cases, Judge, and I want to make
10 sure that ~ou-have a chance to cover what you would like
11 to talk about in terms of cases, because it's very, very
12 important.
13 JUDGE MURPHY: Well, you know, there's
14 30 years of cases, and we already have 600-plus pages of
15 transcript, and there's been cases touched on every now
16 and then. But, you know, all of these cases are, all the
17 published opinions are out there, anybody can look at
18 them. The Internet is out there for the unpublished
19 ones. There are all kinds of tools people can use if
20 they want to criticize~ somebody or if they want to praise
21 them. You can find easy ways to do it, so I don't think
22 we should -- I just, I just noted that in my view, the
23 reason for my being designated a trailblazer is because
24 of the judicial offices I've held. It's not like
25 Brooksley Born, who's been a leading lawyer in a major () 637
1 law firm for all these years, a partner, because I was
2 only practicing law for two years. I'm pleased with what
3 I did at the firm. And my mentor there just died, and
4 I'm so honored to have been asked to say a few words.
5 And the thing is that Ed Glennon, he doesn't have any
6 idea how much I learned from him. It wasn't like he was
7 taking time to sit around and tell me things
8 occasionally, but just learning from how he approached a
9 case and what he did with it, and what thought he had on
10 it, and just learning at the feet of a master.
11 I might say a few things that -- you know I am
12 going to speak at an international conference for some
13 international judges, women judges, in Washington in
0 14 June, sponsored by the American University and the
15 National Congress of Jewish Women. One thing they're
16 very interested in is-: originally they wanted me to
17 talk about the gender fairness projects that I've led,
18 and we've talked about them in a way. I just wanted to
19 mention it a little bit, because when I was president of
20 the Federal Judges Association, which was like a
21 full-time job, and also chief judge of my district, the
22 chief judge of the Eighth Circuit asked me to organize a
23 gender fairness task force. I know I've talked about it
24 a little bit before but it was rambling. It was a
25 tremendous amount of work to get somebody willing from 638
1 every state, seven states, to try to work out
2 representative people that would be able to persuade
3 others in those states. And you couldn't get just all
4 supporters, you had to get some opponents, but try not to
5 get those who would gum up the works. And the key was
6 getting the right chair, because it would not succeed if
7 it were a woman because at that time the general attitude
8 was that gender fairness was something of a concern only
9 to women and it was in their self-interest. So you had
10 to find a man who commanded the respect of everybody who
11 would do it and who was good at organizing, and I found
12 that man, and I've talked to you about him, Lyle Strom.
13 He was chief judge in the District of Nebraska, which is
14 a pretty conservative area. He did a great job, he
15 followed it through. It took more than two years. It
16 seemed to go like topsy for a while, especially when we
17 were able to get funding from the Congress. And I
18 thought my task would only be to only -- I mean was to
19 get it started. He wanted me to be a part of it all the
20 way, and whenever there was trouble, I would be involved.
21 And one of the points of trouble was when we had -- we
22 had these volunteer women professors who helped us, but
23 it just was too much. And we had a little bit of money
24 from the circuit, it wasn't enough, but we were able to
25 get money from Congress. That was Senator Eiden, he was u 639
1 extremely helpful to such projects. And we finished, we
2 published a big report with action steps recommended and
3 so on. And then Creighton Law School did us a great
4 favor of putting out an issue of their law review that
5 has that report. I believe it has that whole report.
6 Well, then, was that just going to go on the
7 shelf? Well, I had to go and report, present the report
8 to the Judicial Council, the Eighth Circuit Judicial
9 Council. And after all this work by so many people, to
10 my amazement it looked like they weren't going to accept
11 it. Even accept it, let alone approve it or adopt it.
12 And I know I did see this in the transcript that Lyle
13 Strom couldn't believe it. Judge Strom had not realized
0 14 what opposition might be there. You know, I felt
15 terrible for him. He had devoted years, and then went
16 around, you know, selling it. And, of course, I always
17 got stuck having to go places and sell it -- I don't mean
18 literally sell it, but promote it -- and it squeaked by
19 so it would be received.
20 MS. BRABBIT: Was it a vote, Judge?
21 JUDGE MURPHY: Yes.
22 MS. BRABBIT: It was something they were
23 voting on?
24 JUDGE MURPHY: Yes.
25 MS. BRABBIT: And the vote was whether to
~) 640
1 accept the report or reject the report?
2 JUDGE MURPHY: They didn't go so far as to
3 a motion to reject, but it was a motion not to accept it.
4 Anyway, we prevailed, but not by much. And then the
5 question was, well, should there be an implementation
6 committee. And of course there should be, and that
7 passed also by a split vote. And, of course, then my
8 heart sank when Judge Richard Arnold, still chief judge,
9 came and told me I was going to chair that implementation
1 0 co mm it tee , · Because th i s - had. taken - - not that I ' m not
11 the biggest proponent of the thing, but it was such a
12 drain on my time because that had been, it took me at
13 least half a year to get the thing organized in the first
14 place, and then that two years I was involved, and then
15 the implementation went on for about two years. We had
16 committees that split up the areas. There was one on
17 jury instructions, there was one on employees, one on
18 appointments. I know I talked about this earlier, you
19 know, appointments by the court to committees, and then
20 appointments to judgeships~ and consideration of, you
21 know, other policies that affect gender. I can't
22 remember all of the different committees. Language, to
23 try to get gender neutral language. So it was a long,
24 long process. And there is no continuation of it at the
25 present time. 0 641
1 But in the meantime, you know, there are a lot
2 more women judges, women magistrates, magistrate judges,
3 women bankruptcy judges. Not as many women bankruptcy
4 judges as probably there should be, although we just
5 appointed one now in Iowa. So it did have a big effect
6 in the Eighth Circuit; it made people conscious of the
7 issue. In fact, they got sick of the consciousness of
8 the issue. And I told you that we always wanted it to be
9 also enlightening as far as thinking about race. And in
10 Minnesota there had been separate task forces on that,
11 first women and then race, although there's never been
12 one instituted in the Eighth Circuit on race. But in the
13 implementation, we really did things related to race even
0 14 though that wasn't part of our task. And I told you
15 about this group of players that went out and they did a
16 lot of racial play-acting to heighten people's awareness
17 of how these things, how hidden attitudes affect things.
18 MS. BRABBIT: How
19 JUDGE MURPHY: Hidden attitudes. People
20 aren't consciously prejudiced, you know, but these hidden
21 attitudes that you become aware of, and then you're going
22 to be more sensitive and so forth.
23 So anyway, my role in all of this, and I've gone
24 around and been asked to speak about this, and write the
25 introduction -- when the Federal Judicial Center did a 642
1 thing on gender studies, they asked me to write the
2 introduction. So when this National Jewish Women's
3 Congress got this international judges thing together,
4 that was what they wanted me to talk about. Now they've
5 changed it, I think, to -- they're really interested in
6 this Infinity Project that I have had nothing to do with
7 other than expressing, during this oral history process,
8 what it's like to be the only woman. Because my bar is
9 the organizer of it, you know, I found out about it at
10 this organizing meeting where the Infinity.Project gave
11 the first award of the Diana Murphy Legacy Award to me.
12 I have to laugh because it's such a cute name for an
13 award. But people confuse the issue, because at that
14 organizing meeting I spoke because you wanted to have
15 speakers on what a circuit judge does. So I spoke, and
16 then I asked the chief judge, who was also here in town,
17 to speak. He didn't say no, except when he discovered
18 that I was already speaking, he said, oh, you don't need
19 me because we think just alike. And so then I asked
20 Judge Mike Melloy, who is not far away, in Cedar Rapids,
21 and he drove up and was nice enough to talk also.
22 MS. BRABBIT: And also has a relative in
23 town.
24 JUDGE MURPHY: Yes, that's true, so he was
25 glad to come. Anyway, they haven't really talked to me C> 643
1 finally about, just that I'm appearing on the first
2 morning of the conference, what they want me to talk
3 about. I mean there's so much I can talk about women's
4 stuff that I'm not worried at all, I can rattle off, but
5 I certainly will. And I suggested that since they're
6 interested in this project, that if you wanted to attend,
7 I'm sure they would be pleased for you to attend, and
8 that I would intend to point you out, and I will mention
9 to them when I talk with them closer on the date if you
10 were going to come. Maybe they'll take me off the panel
11 and put you on.
12 MS. BRABBIT: Oh, no, Your Honor.
13 JUDGE MURPHY: Because I don't want people
0 14 to think that I am trying to influence the appointment
15 process itself. I'm happy to say what it's like to be
16 the only woman, but
17 MS. BRABBIT: Well, we're working hard to
18 change that, because we would like two and three and four
19 while you're still on the bench. This would be a good
20 thing, a good thing.
21 JUDGE MURPHY: You know, when I thought
22 about this talk yesterday, I felt pretty good because I
23 thought about how early on we appointed, in the early,
24 early '90s, I mean early '80s, the first woman bankruptcy
25 judge, because the district judges still appointed the 644
1 bankruptcy judges. Although when Nancy Dreher succeeded
2 her she was appointed by the Court of Appeals, it was
3 because of the dinner I had with her, or the lunch at the
4 New French cafe, when she was deciding she wanted a new
5 part of her career. She had been a successful lawyer at
6 a leading firm here and, you know, we talked about, she
7 talked about was there a vacancy on the Supreme Court,
8 blah, blah, blah. And then it occurred to me, I said,
9 well, you know there's going to be a vacancy on the
10 bankruptcy court, and she got really interested and _then
11 she applied. And, of course, I encouraged her. And then
12 we appointed, in the early '90s, the first woman
13 magistrate, and then in the -- no, in the '80s, in the
14 '80s, and then in the early '90s, the first woman 0
15 magistrate judge, and that was pretty good. There are
16 more now, which is good.
17 MS. BRABBIT: Yes, yes.
18 JUDGE MURPHY: But you have to start
19 somewhere.
20 MS. BRABBIT: I have a quick question about
21 the implementation committee. When that was in motion,
22 was there feedback then to the Judicial Council about
23 what was happening? In other words, did the Judicial
24 Council have a continuing or ongoing interest in --
25 JUDGE MURPHY: We gave a final report. 645
1 MS. BRABBIT: While the implementation
2 committee, separate and apart from the initial report
3 JUDGE MURPHY: Yes, yes, and this report
4 was -- I mean they gave up in the meantime, the serious
5 opponents. I was asked to talk at every judicial
6 conference and so on, and the membership changed a little
7 bit, too, and so, you know, it was received. And part of
8 the recommendations of the implementation committee was
9 that you would continue, you wouldn't forget about this.
10 And nobody has thought about it ever since, that I know
11 of. But it was a much more congenial atmosphere.
12 MS. BRABBIT: When the implementation
13 report was submitted to the Judicial Council as opposed
0 14 to when the initial
15 JUDGE MURPHY: Yes, but there is another
16 difference here. I presented the implementation report.
17 I, being a circuit judge at that point.
18 MS. BRABBIT: Yes.
19 JUDGE MURPHY: I believe, I believe I was,
20 and Lyle presented it to the Judicial Council. I mean I
21 piped up, but it's easier to be less than polite perhaps
22 for a circuit judge dealing with a district judge. I
23 mean it shouldn't be.
24 MS. BRABBIT: Understood. So you're going
25 to be presenting in Washington, D.C. coming up very soon 646
1 this June. 0
2 JUDGE MURPHY: Right. And it's time to
3 quit.
4 MS. BRABBIT: W~th that we'll end the tape.
5 Thanks, Judge.
6 (End of session.)
7
8
9
10
11
12
13 () 14
15
16
17
18
19
20
21
22
23
24
25 0 647
1 (June 23, 2009.)
2 MS. BRABBIT: Good afternoon, Your Honor.
3 Today's date is June 23rd of 2009, and we're continuing
4 with the oral history.
5 JUDGE MURPHY: Well, I got a relaxing start
6 by going to physical therapy, which is fun. This is the
7 third time I've gone to this particular place and
8 something I should do all the time but, you know. They
9 said, well, when are you coming next? Of course, it's
10 good business. It's going to be a long time probably.
11 We were talking about publicity and, I mean,
12 it's not always a rational system by what gets publicity
13 or how names get in the press, but when the Clinton
0 14 administration began, one of the things they announced
15 was they were going to appoint a woman head of the
16 Justice Department, a woman attorney general. The very
17 first one was a woman that was -- I don't think I've
18 talked about this before -- a woman that was in-house
19 counsel for, I can't remember the name of the
20 corporation, a well-known corporation, and she fell by
21 the wayside because I believe she was employing an
22 illegal immigrant. And then, ironically enough, the next
23 one he picked, Judge Kimba Wood that he was looking at,
24 did also. But from the very beginning, he had three
25 names that were on these lists, and my name was on the 648
1 series of lists. I may have mentioned this to you before 0
2 but it was really a strange thing, because they never
3 talked to me about it. I had no interest in being
4 attorney general. I love being a federal judge. You and
5 I have talked about how, you know, Pat Wald gave up being
6 a circuit judge to go sit on the international tribunal
7 and then the administration changed and she was out, and
8 then she would liked to have gone back and been able to
9 sit as a senior judge but, no, she retired, or resigned,
10 and that was it. So if you, really like_being a_ federal
11 judge you've got to stick with it.
12 I mean I never even thought about what the job
13 would have been like and, of course, as I subsequently
14 served as Chair of the Sentencing Commission and worked 0
15 with Janet Reno and with other people. in the Justice
16 Department, I got to get a much better idea about, you
17 know, the full complexity of the job and the demands on
18 it. But nonetheless, it was nice to have your name
19 floated about, and people were quite excited. They would
20 call me from around the country, and I would laugh and
21 say, you know, for whatever reason it suited their
22 interests to use my name but there was nothing to it.
23 And the height of it was when the Japanese Embassy called
24 to get my resume; I loved that. It was very important,
25 of course, to the foreigners, foreign economic interests 0 649
1 and so on. I think it was Japanese counsel actually more
2 tied in with the economic interests, antitrust and so
3 forth.
4 MS. BRABBIT: Do you remember how you first
5 found out about it?
6 JUDGE MURPHY: Well, it was in the national
7 press. Even in USA Today. I don't remember whether I
8 saw it first or other people saw it, but I would see it
9 on a continuing basis and the other people's names would
10 change. I persevered, you know, I wasn't shot down. All
11 of this talk about having women nominees for the Supreme
12 Court, you know, a lot of my friends would say it should
13 be you, and I'd say I'm too old. Then they'd think, they
0 14 were outraged at the thought because, of course, they are
15 aware of how old the Supreme Court justices are, and I'd
16 point out to them that they don't start out on the
17 Supreme Court when they're at that advanced age.
18 In the Clinton years I was on lists; the White
19 House released a list of five women at one point that
20 they were considering for the Supreme Court. Diane West
21 was one. Diane, is it Diane Wood or Diane West?
22 MS. BRABBIT: Wood.
23 JUDGE MURPHY: We just went through this
24 before. Diane Wood. And I was one, and I don't remember
25 who the other ones are. I have to go on total recall. 650
1 Somewhere I've got that story. You know, I did tell you 0
2 that I was asked to be the director of the Federal
3 Judicial Center, an emissary from the Chief Justice came
4 and asked me. I didn't give it a moment's thought
5 because there was an expectation that you live in
6 Washington, and I knew my husband wouldn't want to move
7 to Washington. So all of these Washington jobs, no
8 matter what they are, were never something that I aspired
9 to. The Supreme Court, of course, would be very
10 interesting, but it wouldn't work for me since I.know my
11 husband wouldn't move. I want to maintain a family. But
12 anyway, you know, as they say, I'm too old and I don't
13 have to think about that. But I thought just since we're
14 talking about my life and the law and so on, that I would 0
15 mention those things.
16 There are a variety of ways you get on the
17 national radar, and it's always a dangerous position
18 because you can really get shot down. I have an
19 interview tomorrow, I think I mentioned to you last week
20 when we were at that Washington conference, that I got a
21 call from Karen Redmond, who is one of the editors of The
22 Third Branch, which is a publication by the
23 Administrative Office, goes out to all the judiciary
24 every, I don't believe it's quite monthly, but it's quite
25 frequent, and a lot of other people follow it, too. She ) C/ 651
1 has this concept of the 20th anniversary of the
2 Sentencing Reform Act. Not of the Sentencing Reform Act,
3 but the Sentencing Commission and the guidelines, because
4 the Reform Act, it took five years to get the guidelines.
5 I just sent the message that I would contact her this
6 week, and I did talk with her yesterday and we set an
7 appointment to talk tomorrow, and she had already talked
8 with Judge Wilkins, who was the first chair, and Judge
9 Conaboy, who was the second chair, and then she's going
10 to talk with me, and my successor was Judge Ricardo
11 Hinojosa, and then Judge Bill Sessions, who started on
12 the Commission when I did, is going to become Chair
13 shortly, I believe. They only have a year and-a-half
0 14 left, but he's pleased to be able to move in that
15 direction. He called me up recently and he said a very
16 nice thing, because part of my task when I was there was
17 trying to rein everybody in, not to go off in different
18 directions, and he was probably on one side of being
19 reined in. He said, you know, you really did a great job
20 in getting us off on the right start when all the
21 commissions started again by telling us that we had to
22 come to consensus. We had to work to consensus on these
23 guidelines, and they had to pass that kind of test or
24 they wouldn't get very far as far as Congress goes, or
25 the other branches, let alone their acceptance by the
\_____,,I 652
1 judges. And he said we've maintained that and it's 0
2 really because of you. That was very nice, because we
3 crossed swords a number of times.
4 One of my other colleagues from'that was Judge
5 Ruben Castillo, who was on this, oh, a list of about 20
6 that the Obama administration released as a list of
7 people that he considered for the Supreme Court, and the
8 only district court judge was Ruben Castillo, who would
9 be a wonderful justice. He's such a smart, really smart
10 guy. Very strong advocate 0£.his.position, but good with
11 people, and a person with values that I share. Of
12 course, he and I talked and we both recognized that it
13 was going to be a woman this time, but he might still
14 have a chance. He would be very good. 0
15 So this will be interesting because it's once
16 again, you know, reviewing what -- let me just tell you
17 the questions. I'm not going to give the answers.
18 MS. BRABBIT: Are these the questions,
19 Judge, that Karen Redmond had asked you?
20 JUDGE MURPHY: Yes. When I talked
21 subsequently to the fellow who was staff director when I
22 was there, and with my assistant, Frances Cook, and I
23 mean these questions are really funny. Well, what
24 issues, if any, arose during your tenure? There were so
25 many issues; that was funny in that sense. Really, many, 0 653
1 many. What were some of the concerns of the Commission
2 during your tenure? What changes, if any, occurred in
3 the guidelines? That one was a funny one because there
4 were so many amendments that we promulgated, and
5 substantive changes to the guidelines. How would you
6 characterize the attitude of judges towards the
7 guidelines at that time? That had some amusing aspects.
8 Did that change during your tenure? I'm happy to say
9 that it could, but not to the extent that United States
10 v. Booker changed it. And what do you consider to be
11 your greatest accomplishment as Chair of the USSC? I've
12 made some notes, and I have to think it over before I
13 talk with her tomorrow, but I just thought these,
C> 14 everything seems to lead to another job, everything you
15 do.
16 MS. BRABBIT: You mentioned the publication
17 she works for.
18 JUDGE MURPHY: The Third Branch.
19 MS. BRABBIT: The Third Branch is the name
20 of it?
21 JUDGE MURPHY: At one time it was put out
22 by the Center, but it was taken over by the
23 Administrative Office, and frankly it is a more
24 professional paper. It basically is reflecting the views
25 of the Chief Justice on some issues, you know, like 654
1 seeking just compensation for the judiciary, and it 0
2 reports on when Judicial Conference Committees are
3 undertaking new steps, introducing new policies that
4 apply to the judiciary, they cover that. And, of course,
5 sentencing was frequently in the news there, and I was
6 interviewed a number of times because, of course, it
7 applies to everybody and there was always something
8 controversial going on.
9 I'm not sure if we talked about -- I am going to
10 go on as far as the organization of the federal judiciary
11 in addition to my term as Chair of the Sentencing
12 Commission, which is independent of the structure that
13 we're talking about but is related. So I would speak at
14 every judicial conference meeting even though I wasn't 0
15 part of that mechanism, and when I was on the board of
16 the Federal Judicial Center, that relates to the
17 Administrative Office and to the whole court system. I
18 chaired the Education Committee on that. Judge Jay
19 Wilkinson always says, ''You were my chairman." The Chief
20 Justice is the chair of that board, so it's a really
21 interesting board to be on.
22 MS. BRABBIT: The board of the Federal
23 Judicial Center?
24 JUDGE MURPHY: But I was on the CACM,
25 that's the Court Administration and Case Management 0 655
1 Committee, and I was the only appellate judge on that. I
2 think it's a mistake to have only one appellate judge
3 because the bulk of it, you know, each district judge
4 really has to be an administrator, and there is so much.
5 When we were talking about when I was chief judge of the
6 district court, that was the period when it changed when
7 you started to handle your own finances and everything.
8 All of the automation things have come through this CACM
9 Committee. You know, the studies leading up to how many
10 courtrooms people need and retired judges, and just about
11 everything you can think of related to court management,
12 court administration. I had profited so by the case
13 management events that I had gone to, because when I
0 14 started in district court, soon it became the leading
15 thing. And there were, you know, professors, like my
16 friend Judith Resnick, that denounced it because, you
17 know, there are these judges that say they're due process
18 judges or they're management judges. Well, obviously you
19 should be both, but because of the huge caseloads you had
20 to learn how to schedule everything and how things could
21 be managed most efficiently. I mean you didn't have to
22 have one hour for a motion to be argued. Many districts
23 don't allow oral arguments for any motions. And we won't
24 go in and talk about all the case management things, but
25 there wasn't any similar program for Court of Appeals 656
1 judges. There are very few national meetings for 0
2 appellate judges because it's thought they don't need
3 them. You know, you're scholarly, you're learning all
4 the law and so forth; and it's just sort of thought that
5 you know how to manage your own workload.
6 I had been at one of these meetings and I had
7 been in a small group with Judge Kozinski, who was
8 like-minded in being interested in how the other Courts
9 of Appeals managed cases: How they were assigned, how
10 the panels were constructed, what was set.for oral
11 argument, how the staff attorneys were used, how
12 settlement conferences were used for settlement directors
13 in some of the circuits, how people would track the death
14 penalty cases. You name it, there were so many different 0
15 things. Do you have the circuit executive manage this
16 area of court administration and case management from the
17 staff point of view, or is that your clerk of court?
18 Well, it turns out that answer is the clerk of court
19 everywhere except in the Seventh Circuit, where it's the
20 circuit executive. So I pursued the idea in CACM that we
21 have a case management conference for the Courts of
22 Appeal. As the idea developed, it would be that every
23 chief judge and one other judge that he would select
24 could be the next judge up, you know, the next chief
25 judge or whatever -- and then either his circuit C> 657
1 executive or his clerk of court, whichever he relied on
2 for, you know, the judicial part of the work. And as I
3 say, I was the only judge there. I followed Pat Wald on
4 that committee, and she was replaced by Larry Silverman.
5 He was the extreme opposite of Pat Wald as far as points
6 of view and life. He had a relationship with CACM from
7 some other committee he was on for the conference, which
8 I don't remember. He was opposed to the very idea;
9 belittled it and thought it was ridiculous. Then I
10 started canvassing some of the chief judges, the very
11 respected ones, and, you know, discovered that they
12 agreed. His own chief judge, Judge Harry Edwards, and 0 13 the chief judge of the Second Circuit and so on. So, 14 anyway, I built up the necessary support to get this
15 adopted by the committee. So we had this in Chicago, and
16 it was terrific. It's the only one that we've ever had.
17 Everybody was very interested. I may have told you
18 already for some reason, because of my friend Jay
19 Wilkinson, but in the Fourth Circuit the chief judge
20 assigns every opinion, every oral-argued opinion.
21 He assigns -- now it's a she -- but she assigns it to the
22 writing judge, which is most unusual, because everywhere
23 else it's the head of the panel. And they also have the
24 wonderful custom, this doesn't relate to management
25 except it would be so time-consuming. After each 658
1 argument, the judges get down from the bench and go 0
2 shakes hands with the lawyers.
3 MS. BRABBIT: How nice.
4 JUDGE MURPHY: Yeah, but think how that
5 would slow the day down. It is nice.
6 MS. BRABBIT: When was the conference,
7 Judge, the one in Chicago?
8 JUDGE MURPHY: I would guess that it was in
9 1998. Could have been '97. Anyway, it was
10 intellectually very -- We had one session, the chief
11 judges had this idea they wanted to have one session just
12 with the chief judges without -- some of them, instead of
13 bringing another judge, brought two staff people. The
14 chief judge could make that decision. They wanted to 0
15 have one meeting without the staff there where they could
16 talk about whatever they wanted. So I added that to the
17 schedule, and they chose, and then I asked them, well,
18 who do you want to have chair that session? And they
19 picked Jay Wilkinson, and he was such a thoughtful
20 fellow, so that session was really an ~nteresting one. I
21 was privileged to be able to be listening to it, because
22 that was less nuts and bolts than the other sessions,
23 which were related to how you do various kinds of work
24 and how you organize it, but about, you know, the role of
25 the chief judge, the mission of the courts of appeal, and C) 659
1 it was really interesting.
2 MS. BRABBIT: What are some of the greatest
3 changes that came from that conference?
4 JUDGE MURPHY: I don't know.
5 MS. BRABBIT: Did they implement any?
6 JUDGE MURPHY: The way any changes would
7 have come about would have been from an individual who
8 was there talking about it. Sometimes in our circuit we
9 get ideas, too, from judges, senior judges who sit on
10 other circuits. I've taken some ideas that other judges
11 have been interested in. For example, we now have a
12 system that's quite like the Third Circuit for certain 0 13 cases where you get a bunch of cases for your oral lA argument month, but included in those are cases that
15 wouldn't necessarily merit oral argument, and you decide
16 ahead of time, and you may write the opinions ahead of
17 time. So we're doing a sort of modified version of the
18 Third Circuit one now.
19 So, as I say, an individual trailblazer, or
20 should I say a person that's interested in thinking about
21 how you do things. We have much fewer oral arguments
22 than we used to have. Partly just a change in the
23 personnel in the court. But I went through that
24 metamorphosis in district court that if they didn't show
25 me by their briefs that a motion was worth having an oral
. ) ~- 660
1 argument for, I didn't have them. 0
2 In the District of Minnesota it had been the
3 tradition to have oral argument on everything. Well, you
4 make yourself a prisoner, it's· just a waste of time. You
5 find other districts that never have oral argument, which
6 is shocking to me, because I think there are times that
7 you really need it. Anyway, so I'm sure it had some
8 effects but I don't know that any, nobody really
9 followed -- I left the CACM when I went on the Sentencing
10 Commi~sion, when I became Chair, and they were arguing
11 with me to stay and said, well, Deanell Tacha stayed even
12 when she was -- although that was on the Appellate Judges
13 Executive Committee. I quit that, too, because I knew
14 being Chair of the Sentencing Commission was going to be 0
15 really all-consuming in addition to keeping hold of my
16 job. Okay, well, that was interesting. I just wanted to
17 put that in there.
18 The Supreme Court, we've been talking about some
19 cases, and I think I might have mentioned U.S. v. Tom,
20 which created a circuit split. There was another case
21 decided on the same issue; this is about the sexually
22 dangerous persons, what happens with them when they get
23 out of federal prison, and there's a statute that
24 provides that maybe you evaluate it by appropriate
25 psychiatrists, psychologists. And if they are found to G 661
1 be currently sexually dangerous, then they have a right
2 to a district court hearing because they are thought to
3 be dangerous and they shouldn't be released. So at the
4 hearing the standard is clear and convincing evidence. I
5 think I talked about this already, but clear and
6 convincing evidence is the standard, and the government
7 has to prove that this person is presently sexually
8 dangerous if released. And if the district court finds
9 that by clear and convincing evidence, there is a right
10 to appeal, you know, with the Court of Appeals and so on,
11 too. But at the end of that determination, then if the
12 prisoner hasn't been able to overcome that designation he () 13 is kept in a federal facility, but the federal facility 14 is then to offer to release him to a state facility. Not
15 all states have a program like this, Minnesota does, and
16 there are at least about 16 that I know of that do have.
17 And probably a lot of the other ones are in the process
18 because it's becoming more and more, people are becoming
19 more and more conscious that sexual predators are r~peat
20 offenders and present such a danger.
21 (Tape change - missing words.)
22 federal registration program for sex
23 offenders, and in that same act they created this
24 mechanism I'm talking about. More and more states are
25 setting up a system, and Minnesota has one. There's only 662
n, __ , 1 about one person that's ever been released. I mean
2 that's the dangerous part. These people don't seem to be
3 that subject to treatment. There are a lot of
4 constitutional chailenges that so far have been deflected
5 on these state programs. So the federal authorities,
6 prison authorities are required by the statute, after
7 there's been all of this court process and the person has
8 been left in federal hands, to offer to turn them over to
9 the state facilities. In other words, Congress is
10 mindful -Of.the Btate's.right to have these people. So
11 the first court to rule on this was the Fourth Circuit.
12 I think I talked about this, that Judge Diana Motz wrote
13 this opinion, because she's a judge I admire a lot, and
14 she found it unconstitutional, saying there's no basis in 0
15 the constitution. Then I was the one that created the
16 circuit split by the opinion I offered in U.S. v. Thom,
17 finding that it is constitutional under the "all things
18 necessary and proper clause," and also pointing out the
19 interstate commerce connection with these people in
20 federal prisons that are going to be released and
21 probably are going to cross state lines and have already
22 gotten into federal jurisdiction because they've
23 committed a crime that had federal jurisdiction and so
24 on. I won't go into the reasons. They have just taken
25 cert on that, so that's going to be very interesting to () 663
1 see.
2 MS. BRABBIT: Yes, it will.
3 JUDGE MURPHY: They took cert on the Fourth
4 Circuit one.
5 MS. BRABBIT: Cert on Judge Motz?
6 JUDGE MURPHY: Right, right, but probably
7 because there's this circuit split. Although the
8 government would have been anxious to get that resolved
9 because they don't want to release these people.
10 MS. BRABBIT: When will they hear that,
11 Judge?
12 JUDGE MURPHY: Oh, next term. So, you 0 13 know, by the end of June next year. 14 I don't know that I've talked about my husband
15 as much as I should have. It was a big change for him, a
16 man of his generation, for his wife going to law school
17 and then going to work. I'm sure it seemed unseemly to
18 many people and, you know, not wanting to be swept up
19 into this himself. He is a very talented individual.
20 He's really amazing. When I met him in graduate school,
21 I knew that he had just climbed, made this first ascent
22 of this mountain in the Hindu Kush and lost five of his
23 ten toes. And had done the first mapping in a big area
24 of British Columbia when he was in college. Founded this
25 Princeton mountain club and things. So all of that was 664
1 so different from me. That was a very impressive kind of
2 thing. He is very analytic and very statistical
3 oriented, so the kind of work that he did in graduate
4 school was very different from mine, but at a very high
5 level. Then, you know, there he was with a wife and
6 baby, and you can't survive on a teaching assistant's
7 salary for long. He went to work for this financial
8 investment firm doing financial analysis and began to
9 think about ways that you could apply statistics to
10 analysis, -and how.-you can have more rational approaches,
11 other than just sort of your gut kind of analysis. He
12 was then hired by what now is Wells Fargo -- Northwestern 13 Bank, which then morphed into Norwest Bank which then () 14 bought Wells Fargo -- by the trust department. They were
15 interested in the kind of work he was doing. He
16 introduced there the idea that you could use computers in
17 doing analysis and tracking stocks. It's so everyday
18 now, but it was regarded, it was very controversial and
19 people derided him. He was a vice president, he was
20 active in a lot of, he is a chartered financial analyst,
21 he was active in all of that.
22 He left there, he retired, and I would have to
23 go back and think exactly what age he was when he
24 retired, and then the next five years he really devoted
25 himself to doing a lot of things he couldn't when the C; 665
1 children were younger he felt. He skied to the South
2 Pole, skied to the North Pole. I probably said this but
3 I want to make sure I did. A two-month Everest
4 expedition, other climbs in various parts of the world,
5 and he wrote five books during that time. I mean he
6 wrote, he's written extensively in financial journals and
7 he's got a book on bonds, he's got a book on the stock
8 markets, stock analysis that are still in demand in
9 print. He's got another book, he's got a couple books on
10 stock analysis, and he's got books on writing about these
11 adventures in the mountains or skiing to the Poles.
12 I would say this is rather late in life, he got
13 really interested in photography, he had already taken
0 14 pictures, and so he's gone to, you know, I'm sure now
15 more than 140 countries. He's very interested in tribes
16 and tribal life, people that are different than we are,
17 what makes them tick. He's got a lot of pictures
18 reflecting those interests, many of which he's put
19 together in books. They're really like coffee table
20 books, some hardcover and some paperback. Now he's taken
21 to writing little stories, short stories and his
22 reflections on medicine, on the law, and he's got very
23 iconoclastic views, but he likes ruffling feathers.
24 MS. BRABBIT: Is he publishing some of
25 these short stories? 666
1 JUDGE MURPHY: He's not publishing, but he 0
2 sends them out to people. He's got things in there, you
3 have to be careful what you say to him because it turns
4 up in one of these little books. Anyway, he's a very
5 versatile, brilliant guy, really intellectual but also a
6 physical adventurer. At one time, you know, we would go
7 to the opera and we would go to museums, and he's long
8 since given that up, which I regret, you know. I think
9 he regrets now never having much to do with the children
10 when they were lLttle until_ they could go on adventures
11 with him. There's a certain part of bonding, you know,
12 that you get when you're the mother. So I wanted to tell
13 about that.
14 I don't know if I've ever said about how my two 0
15 sons, I should say our two sons, Michael and John, both
16 of their own volition went to study in Germany. Michael
17 first as a high school student, and then his junior year
18 in Munich, and then later got a job in Hamburg through a
19 friend of mine. And then after working there for a
20 while -- I can't think of the title at the moment but
21 he went to the University of Hamburg and pursued a Ph.D.
22 in philosophy paid for by the German government. They
23 have a system that if you passed certain tests -- it
24 always surprised me that the taxpayers in Germany would
25 be willing to pay, no matter how smart you are, if you 0 667
(~ I 1 weren't a German citizen, you know. But then he decided
2 that he wanted to make films, and he came back and went
3 to USC Film School.
4 MS. BRABBIT: This is Michael?
5 JUDGE MURPHY: Yes. He's still working on
6 that. And I just want to give some idea about how they
7 both majored in history in college, just like the
8 parents, and then went to Germany. I mean Joe did go on
9 a summer program to Austria, but the German focus was
10 more mine. Then John went to study, after he graduated
11 from Northwestern, where he had some wonderful German
12 origin professors in history and in literature, went to 0 13 the University of Bonn, and has continued to be 14 interested in Germany and has used his language ability
15 and his Bonn connection to the advantage of this firm
16 that he's worked for that I talked about before. He's in
17 the beef business.
18 Michael has a German wife, who he met in
19 Hamburg, very, very long-time relationship, and now very
20 happily married, and she's got her green card and on her
21 way to becoming an American citizen. And John, of
22 course, married Suwanee from Thailand and has two
23 children. Suwanee from Thailand, Hannah from Germany.
24 Laura and Frances, who we've talked about, who change
25 constantly, like children that age do. I would say it 668
1 looks like Frances is going to have a more outgoing,
2 rambunctious personality probably. Laura is at the age
3 where she wants to be a princess. Seriously, I think.
4 She's not quite sure what a princess is, but she knows
5 they wear pink outfits and have a little crown on their
6 head and a star to hold onto. It's wonderful watching
7 them growing up. Okay. We could go on and on, because I
8 know I've touched on my father's family and my mother's
9 family some, and my sister, such a smart sister. She
10 lives .in California so I don't have as much conkact as I
11 would like.
12 MS. BRABBIT: You remain such a close-knit 13 family, Judge. Do you want to talk about some of the 0 14 traditions that you have a~ a family and the travels that
15 you do?
16 JUDGE MURPHY: Well, once we took our kids
17 to East Africa when they were before I went to law
18 school. That would have been in I 7 1 • We realized it was
19 so much more fun with them that we took them everywhere
20 after. that. So they've been all through South America,
21 they've been to Egypt and Uganda and Tanzania and Kenya.
22 They've been to Iran, they've been to the Beirut airport
23 where Michael had a fight with a waiter. It was during
24 the war so it wasn't a good time to be having a fight.
25 They've been all over Europe, they've been to Japan, they 0 669
1 lived with a family in Thailand. Hong Kong. They've
2 both been to China. Michael went to Everest Base Camp
3 with Joe on that expedition. John has been to mainland
4 China. Not sure. But they've been all over.
5 MS. BRABBIT: And you have a trip coming
6 up, do you?
7 JUDGE MURPHY: Joe and I and Michael and
8 Hannah are going.
9 MS. BRABBIT: To?
10 JUDGE MURPHY: Berlin for two weeks.
11 One other thing that I, we concentrated on
12 Germany and talking about everything and have a lot of 0 13 other interests, but this is the first Biennale that I 14 have missed in a long, long time. You know, that's the,
15 every two years there's an exhibit of art in Venice where
16 the various countries have pavilions. It's always
17 interesting to see which artist they pick or what kind of
18 art they want to use for their country pavilion. And
19 then the Italian building picks art that they want from
20 other countries, and then all over Venice the artists
21 take advantage of sites to install art in the most
22 wonderful ways that draw on, you know, the beauty that's
23 Venice and make you see things in a different way. And I
24 love reading about it. I was just reading about this
25 painting that was stolen from the Benedictine monastery 670 0 1 that's on the island San Giorgio, which is just across
2 from the hotel we usually stay at. The French took it
3 down from the wall, it was a fresco, and took it down
4 from the wall, cut it up and took it back to France and,
5 of course, it's been in the Louvre ever since. You know,
6 the Nazis took French art, too, I mean, it just
7 although I think they got it all back. So this English
8 movie director got the idea of, by digitalization of the
9 painting -- it's the "Marriage of Cana" -- it has the
10 ef~ect.-0f being able to see ~tin the monastery refectory
11 as it was, and then on the sides of the wall views of
12 some of the smaller images. The whole show lasts 13 50 minutes. It would be difficult for me because it () 14 didn't look like there were any chairs in there but maybe
15 you could bring your own, but that would be so wonderful
16 to see. Every day I'm reading something else that
17 they've done.
18 We were having dinner with our friends, the
19 Atwaters, the other night, and they collect things I
20 would love to have. I was telling her about some of the
21 ones that I had loved seeing. The American pavilion one
22 year had Noguchi, and inside the pavilion, you know, they
23 decide how they're going to have their stuff displayed,
24 too, so there were wonderful sculptures and various
25 things inside. But on the outside he had a marble, a CJ 671
1 white marble slide. It was a sculpture, it was built all
2 the way around -- I'm putting my arms around like a
3 circle -- and there was a stairway, and I was able enough
4 at that point still to climb up the stairs and go down
5 the slide. They gave away a picture of that, so I framed
6 it, I've got it in my little back hall at home. But
7 anyway, I don't know if I'll ever be able to go to Venice
8 again because of my broken hip, but I tell you, it's
9 really tearing away at me not being there, because I love
10 this.
11 MS. BRABBIT: Is this happening at the same
12 time you're going to be in Berlin? 0 13 JUDGE MURPHY: Yes. Many years we've done 14 the, well, that's what my friend Jon called the Axis Tour
15 from Venice to Vienna to Berlin. All great cities.
16 MS. BRABBIT: Wonderful.
17 JUDGE MURPHY: Well, enough of that. Okay.
18 One thing I wanted to correct was, when I looked over
19 this and I was talking to you earlier about going to
20 speak at this Defense Research Institute, it reflects the
21 fact that everybody was being so accommodating to me to
22 get me to go there, and the wife of a former law clerk of
23 mine, who is an excellent, excellent insurance defense
24 expert, Jean Unger, had said, "Don't worry, I' 11 do the
25 materials for you." But as the time got closer I 672 () 1 thought, well, I think, you know, that's not right, I'm
2 going to talk about something more personal. So I had
3 written submissions, and I think I gave you a copy. The
4 first section was t~ps on written and oral advocacy for
5 appellate lawyers, and then the second part was sort of a
6 personal journey kind of thing. Because when my
7 classmate asked me to come to this, he wanted to know
8 what was an okay argument to make to an appellate court.
9 But he also said, well, they would be interested in a
10 woman, .. because now we' re getting some women in this
11 field. So I talked about, you know, topics that I talk
12 about many times, but it was quite personal and 13 historical at the same time, women in the law, and you 0 14 have a copy that. I didn't want to leave the impression
15 that Jean Unger had written it.
16 MS. BRABBIT: Yes, and I have, thankfully,
17 a copy of that, as well as some other presentations,
18 Judge, and so as part of this oral history project we
19 will forward the copies of those presentations with the
20 transcript.
21 JUDGE MURPHY: I mean Jean Unger did submit
22 something, and they said, oh, no, you use it for another
23 meeting, because they thought it was good. They were
24 very pleased with mine.
25 MS. BRABBIT: And we know you're going to () 673
1 continue to give many presentations, so we will --
2 JUDGE MURPHY: Well, I don't know.
3 MS. BRABBIT: continue to watch for
4 those.
5 JUDGE MURPHY: Yeah, well, you heard me
6 give one last week at that very interesting seminar, the
7 international women judges.
8 MS. BRABBIT: And it was wonderful.
9 JUDGE MURPHY: The meeting at American
10 University. That was sponsored by the National Jewish
11 Congress, Women's Division. It was a great meeting, I'm
12 so glad that you went. 0 13 MS. BRABBIT: I was grateful to go. Do you 14 want to offer a few thoughts about that conference,
15 Judge?
16 JUDGE MURPHY: Well, it was great. There
17 may have been ten appellate, federal appellate .judges.
18 Well, no, there weren't that many, because one of the
19 speakers was a federal district judge. I would say the
20 two high points for me were the luncheon speech by Pat
21 Wald, which was very outstanding. I mean she always has
22 something of substance to say. She talked about judging,
23 but she talked a lot about the international tribunals,
24 and she had been a judge on one, and what she had to say
25 about that was really fascinating. And then the other
"-/' I 67 4
1 part, it was the very last panel, was made up of three
2 judges who also sat on international tribunals. An Irish
3 judge who had lived and worked many years in New Guinea
4 and now has been sitting on the International Tribunal
5 for Sierra Leone and is going to be trying Charles
6 Taylor; Judge Dougherty, a very brave lady it was clear,
7 from what she had to say; and then there was a judge from
8 Argentina, who is finished now, but she was three
9 and-a-half years on the Rwanda tribunal, and she told me
10 that- an hour documentary had just been made . .on her
11 service there, which I'm hoping we can get a copy of to
12 show here, both of us being involved in the same 13 institution or university, St. Thomas. And then the 0 14 third judge was a woman lawyer. Was she a retired judge
15 in New York?
16 MS. BRABBIT: I don't think she was
17 retired.
18 JUDGE MURPHY: All right, then a state
19 judge in New York, who was sitting on an international
20 tribunal in Bosnia and Herzegovina. Until her speech I
21 didn't know that there was a plenipotentiary running the
22 country these days there could be in other areas, too.
23 But that there was an individual who appointed the judges
24 and did everything else, ruled the country in effect. I
25 asked who that was, and she said he was an Austrian, he 0 675
1 was doing a good job. And then, like always, I saw his
2 name in the paper the other day. He's an Austrian
3 diplomat. He had just -- the problem is that the Serbian
4 courts are ruling in favor of Serbs, and so he was
5 overruling something that had been done, whether it was
6 the Serbian courts or the Serbian legislature. It's
7 really -- this is not to say Serbs in Serbia, but the
8 Serbs in Bosnia and Herzegovina. What a mess they've got
9 there.
10 It was great. And, of course, you know, I
11 played a role there with a formal presentation, and then,
12 you know, adding comments as we went along. It was very
13 stimulating.
0 14 MS. BRABBIT: It was wonderful. You had a
15 significant contribution there as well. It was a great
16 panel. Judge, we were discussing the conference in
17 Washington D.C., and those materials are going to be made
18 available from the conference organizers, and so the
19 panel that you participated on will be transcribed and
20 forwarded out, and I will include that participation and
21 those comments with the packet that goes with this
22 particular project. Would that be okay with you?
23 JUDGE MURPHY: Yes. I think the few words
24 that I said at the very end might be worth including,
25 too, because it struck me, after being there for the two 67 6
1 days, that one reason this was so successful was that the
2 speakers were storytellers. That's what made it so
3 gripping. Not each one was, but many of them were.
4 MS. BRABBIT: I will be sure to include
5 that as well. Your oral history has brought us to a
6 point in time where President Obama has put forward Judge
7 Sotomayor as his pick for the United States Supreme
8 Court, and so for the last couple of years, Your Honor,
9 we've been moving through this oral history talking about
10 women in the law, and here we are today with a woman who
11 is being recommended for the Supreme Court. Would you be
12 willing to share your thoughts with us about that? 13 JUDGE MURPHY: Well, I think it's an () 14 excellent nomination. You know, I've been aware that she
15 was on a possible track toward the Supreme Court for a
16 long time because she went through the Senate hearings,
17 her Senate hearings, for the Court of Appeals about two
18 years after I did, and hers were somewhat contentious. I
19 noticed that because, you know, I've already told you, I
20 think, that mine were very abbreviated, went right
21 through. And the reason about hers was that some of the
22 senators and others had, knew that it was overdue for a
23 Hispanic to be nominated for the Supreme Court. There
24 had been much talk about Jose Cabranes, her mentor, as a
25 Supreme Court candidate, and everybody was expecting that 0 677
1 he was going to be nominated by a Democrat.
2 But time goes on, and Republicans are in there
3 for a long time and Jose Cabranes has gotten older, and
4 already in '96, when she was going through, they were
5 conscious of the fact that you could be a twofer if you
6 were a woman and Hispanic, and she came to their
7 attention. There could be lots of reasons she did. I
8 mean she went to Yale Law School, a lot of people would
9 know her from there, she went to Princeton University,
10 she was a public prosecutor, she attracted attention as a
11 district judge. So the talk was they were trying to keep
12 her off the Court of Appeals because they felt that would 0 13 strengthen her as a candidate. So I know that when I 14 finally met her I was very interested in meeting her,
15 because I knew that she was one of those people who
16 probably would be talked about. I met her maybe five
17 years ago. Very cordial, nice lady.
18 I think there were well-qualified women circuit
19 judges, for example, who have been appointed by
20 Republican presidents that would be natural candidates
21 for the Supreme Court, but for some reason he never
22 seemed to consider any of them. He did make some attempt
23 to have a woman appointee with his general counsel,
24 Harriet Miers, but when that faltered, he went to look at
25 the male circuit judges and seemed not to pay much 678
1 attention to the women. So then we have the situation
2 where it was back to one woman on the Supreme Court. And
3 then, you know, Justice Ginsburg had another health
4 problem, which she certainly has valiantly shown could be
5 overcome. Nonetheless, she and I are the same age and,
6 you know, you have to realize you're not going to live
7 forever. So it's really important it shouldn't just be
8 one w~man, but you have to really move quickly here or
9 there won't be one woman. So the president has picked a
10 well-qualified woman, it _appsars he considered others,
11 and other men and a number of good people. So it would
12 appear that, you know, she's going to become a justice, 13 and I certainly support it. 0 14 MS. BRABBIT: Do you think President Obama
15 will have a chance to shape the circuit courts?
16 JUDGE MURPHY: Well, he will, he certainly
17 will have circuit court appointments.
18 MS. BRABBIT: To the extent Clinton did, do
19 you believe?
20 JUDGE MURPHY: It all depends upon how long
21 he's there. Four years goes by in a hurry. So far he
22 hasn't gotten any judge on the bench, and the longer it
23 takes for them to get through the Senate Judiciary
24 Committee, you know, the longer it takes. Because when
25 he first named Judge David Hamilton, who is a very 0 679
1 capable and respected federal district judge, somebody I
2 knew because he was on the Criminal Law Committee when I
3 was the Chair of the Sentencing Commission, very
4 well-thought of by everybody, regardless of what party
5 put them on the bench. Now they've uncovered a case or
6 two that they don't like that he ruled on, and so I saw
7 that Senator Sessions was saying that these were all
8 far-out people, and that sort of surprised me, someone
9 like him. But, anyway, apparently he suggested a woman
10 for the First Circuit and then a man for the Second
11 Circuit, and Justice candidate Sotomayor. That's it.
12 Now there are other vacancies. I think there may be four 0 13 on the Fourth Circuit, a court that's very important. 14 So it depends. In the first instance, he can't
15 make the appointments or shape the courts unless there
16 are vacancies, and you can't predict when these vacancies
17 are going to occur. Because, as it's been pointed out in
18 some of this press, there are, on my court, 11 people;
19 three of them could take senior status, one of them being
20 me, one of them being the chief judge, one of them being
21 Judge Wollman, but we don't, none of us intend to do it
22 in the foreseeable future, so there's no vacancy. There
23 are, you know, there are new judgeships every so often
24 that get established, but we don't know where they will
25 be. The reason that Clinton and Bush had so many 680 0 1 appointments is because they served for eight years. It
2 takes everybody quite awhile to get the mechanism going
3 because they have to get their Justice Department
4 organized, they have to get their White House Counsel's
5 Office organized, they have to, you know, senators have
6 to get their own. You know, I saw Senator McCaskill has
7 a general counsel. I thought that was interesting,
8 because a lot of senators don't, and she's going to have
9 this three-person, I think, nominating committee where
10 all.the people can submit their names, at least that's
11 the district court she's talking about now, but she might
12 use the same system if there's a vacancy that she's going 13 to fight for for Missouri. 0 14 So all of that takes a while to get going, so
15 none of them do many in the first -- maybe none get
16 through in the first year. So you see what I mean by the
17 longer you're there, you've got the system going and
18 you're going to get more efficient at it and you're going
19 to get -- and it also depends upon your position in the
20 Senate. Right now President Obama has got a lot of
21 strength in the Senate, so this would be the, before the
22 next election. They'll probably lose some seats in the
23 next election. The next election is only a year away, so
24 you can't predict.
25 MS. BRABBIT: You pointed to an article on 0 681
1 your desk when you were referring to press. There's been
2 quite a bit of press recently about the Eighth Circuit.
3 Do you think that that type of press is helpful to future
4 process or diversifying the courts or do you think
5 there's some risk there?
6 JUDGE MURPHY: Well, I think it's helpful
7 in this respect. It alerts women and minority
8 candidates, and you can see Judge Smith is the only black
9 there, too, and we have some states in the circuit that
10 are very, very populated by a large number of
11 African-Americans, so he's the only one. They can see
12 that in that picture. And the women can see that there's
13 only one. It makes them start thinking about it and
0 14 makes the women's groups start thinking about it and
15 talking about it. That's what brought a lot of women
16 into the judiciary in the first place. So in that sense,
17 stories like that could help. But, you know, they're
18 sure to create some ill will on some people's parts. Why
19 you? You know, we're all judges, and why do you try to
20 divide people by thinking this way? It should be the
21 best-qualified person, even if he is a man. And so, you
22 know, who knows what the effect is?
23 I mean this woman reporter called me and asked
24 me if I would talk with her about the makeup of the
25 Eighth Circuit, and I did in a very respectful way, I 682
1 mean, you know, quite factual. And there are probably 0
2 those who think I shouldn't have done it, but it seems to
3 me that -- I've always thought that you can't, you have
4 to be careful how you talk to the press. I remember when
5 I issued an injunction against some ordinances that were
6 adopted in the suburbs here where there had been an
7 explosion of a federally controlled oil pipeline and they
8 wanted to regulate it. Well, that was a no-brainer when
9 it came to enjoining those ordinances. Clearly it was
10 under federal control. These little, local communities
11 couldn't -- I mean that's one of the easiest injunctions
12 I ever issued. However, it was big in the press, you
13 know, because these people had been killed, and so they
14 thought it was in the citizens' interests and they were 0
15 stirring up all of this, and they called me and they
16 wanted me to come on television, the big channel, and
17 talk about how I made that decision. I said that would
18 be completely, you know, inappropriate. I said, you
19 know, judges cannot talk about cases that you still have
20 before the court, and you can't talk about the cases that
21 you're ruling on. But I said I would be glad to come on
22 sometime and talk about the injunction process and how
23 that goes through, how the lawyers and, you know, how it
24 gets decided and so on, of course, knowing full well that
25 they never would want to waste a minute on that. I mean, 0 683
1 you know, what they wanted was inflaming the citizenry
2 about how dangerous this woman judge was that she
3 interfered with the ordinance that was going to try to
4 regulate the pipeline. I just think about that as, you
5 know, you can't talk about cases, and you would have to
6 talk about your courts in very respectful ways.
7 One of the topics that was discussed at that
8 conference that we were at, by some professors, I guess,
9 maybe first talked about it, asking the question whether
10 it makes a difference on the decisions of courts if there
11 are women there, and so you get asked that. I think that
12 you can talk about that in a very, very minute way. I 0 13 mean it is really hard when you're a sitting judge 14 because you don't want to damage your ability to make
15 decisions and to have the confidence of your colleagues.
16 All of my colleagues are very well-qualified and smart
17 and dedicated people. So you've got to be careful.
18 MS. BRABBIT: You don't have any concern
19 that they're going to lose the focus on the very best and
20 the brightest, however, if they move towards a broader,
21 more diverse court though?
22 JUDGE MURPHY: No, no, I mean I believe,
23 you know, I could pick out -- well, let's just look at
24 the Supreme Court. Justice Ruth Ginsburg. There's a lot
25 of talk, and it's deserved talk, about the Chief Justice
) "-.__/ 684
n, ___ , 1 and how he had so many arguments in front of the Supreme
2 Court and how he was effective, but I have not seen a
3 story on what overarching law he changed as a lawyer
4 before the Supreme Court. Justice Ruth Bader Ginsburg
5 changed and developed the law. As we've talked before,
6 she put women in the constitution in a series of cases
7 she argued before the Supreme Court. And as a justice,
8 you know, she's a brilliant woman, and she is at least
9 equal of anyone that's on that court, and I don't see how
10 anyone could argue against it~ So when I.'m thinkiDg
11 about diversity, it's because you expand the pool of the
12 really talented.
13 MS. BRABBIT: Does the fact that President
14 Obama has put forward Judge Sotomayor as a, you know, 0
15 possible jurist of the Supreme Court indicate to you that
16 we might see the pipeline expand for the best and the
17 brightest?
18 JUDGE MURPHY: Well, I think the president
19 has indicated that he wants to have all kinds of
20 representation on the courts. I would expect that we'd
21 be seeing -- I mean look at Judge Lynch, he's a white
22 man, very well-respected. Not at all surprising that
23 he's been appointed to the Second Circuit, or Judge
24 Hamilton to the Seventh Circuit. It's right. You're
25 supposed to be picking, you know, the top people. I'm (_) 685
1 sure he's going to be picking women and minorities for
2 the courts of appeals and the district courts. You look
3 at each opening probably with looking at, you know, maybe
4 the need in that court and the particular candidates that
5 are brought up. I imagine there's going to be a lot of
6 diversity in his appointments from what he says and what
7 he's written, and we'll see.
8 (End of session.)
9
10
11
12
13
0 14
15
16
17
18
19
20
21
22
23
24
25
-..__/' 68 6
1 (February 18, 2010.)
2 MS. BRABBIT: Judge, today's date is
3 February 18th of 2010. It's a pleasure to be here and to
4 see you again today, and we're continuing our oral
5 history for the ABA Women Trailblazers Project. Is there
6 a spot that you would like to pick up.
7 JUDGE MURPHY: Well, I was just thinking
8 that I unexpectedly had a little get-together with Sandra
9 Day O'Connor last week because she was in town to speak
10 to the Minnesota Legislature on her campaign to get all
11 the states who are not yet so enlightened to pass
12 legislation for judicial selection procedures of judges
13 rather than election. A former governor of Minnesota, Al
14 Quie, had convened a group that worked for about a year
15 and came up with some draft legislation which has been
16 introduced in both the house and senate, so today's
17 Thursday, the 18th, it would have been the 10th I saw
18 her, so it was last Wednesday.
19 The dean of the law school called me to come
20 over for lunch, and I had expected to see the usual
21 suspects, i.e., assorted judges, legal figures, but it
22 was mainly the heads of civic groups because, of course,
23 those are the groups whose support they need at the
24 legislature, and there were justices from the Minnesota
25 Supreme Court who are quite immediately concerned about 0 687
1 avoiding elections, especially after the Eighth Circuit's
2 decision, where it can be politicized and the candidates
3 be endorsed by parties and run on a party platform and so
4 forth.
5 Anyway, I did have a chance to talk with her
6 privately because we've been acquainted for almost 30
7 years and shared some nice times and some difficult
8 times. As you know, Lisa, one of those, and we may have
9 talked about it before, was where I was going to
10 introduce her at this large meeting of the Minnesota
11 Women Lawyers, and unfortunately it turned out I had to
12 have cancer surgery the next morning so I did it by tape, 0 13 and you took the tape there. So when I got back from 14 surgery, there was this beautiful bouquet of flowers from
15 Sandra Day O'Connor who, of course, had her own run-in
16 with cancer. Actually I had met her originally in an
17 elevator. I don't know if I told you that story.
18 MS. BRABBIT: I don't think you did.
19 JUDGE MURPHY: She started in 1981, I
20 think. I think she was appointed in '81. And Dean
21 Stein, who was at this lunch the other day, eternally
22 youthful, wanted to have an event over there to celebrate
23 the appointment of the first woman, and who to have as
24 sort of a stand-in person? Well, I was the only woman
25 federal judge, so I went over there and I gave the talk, 688 (_J 1 and it's always been a tie that she doesn't know about,
2 but I knew enough about her that I could see it was going
3 to add a lot because of her legislative experience and
4 her judicial experience and how exciting it was.
5 There was a meeting of the National Organization
6 of Women Judges in Washington some months later, and she
7 attended that, and the hotel that most of us were staying
8 at was the St. Regis. Oh, for the days when that could
9 be a convention hotel that I could go to. Anyway, I got
10 on an elevator. an.d. there she was,- and so I introduced
11 myself. She said, "I would like you to come visit me in
12 my chambers," so that was a good opening, and I wrote her
13 a note and said I was coming to Washington the next time
14 I had occasion, and she had me over there and we had a
15 very nice conversation. She showed me, she had a lot of
16 paintings and art objects in her chambers that reflected
17 her Arizona background, i.e., Indian work and/or
18 paintings of that part of the country. We sat on this
19 couch together and she wanted to know about my life and
20 if I had children, and it was very much like two women
21 getting together. At that time she didn't ask me
22 anything about my work really. It was very nice.
23 Anyway, fast forward now, lots of times I've
24 been with her over the years for one reason or another,
25 and I show up at this thing, only knowing that she's G 689
1 going to be there for lunch and that the dean had invited
2 me. But I did sit at the same table as she, the dean and
3 the senate and house sponsors of the bill, Governor Quie,
4 and then Eric Magnuson, the Chief Justice of the
5 Minnesota Supreme Court, who is a big proponent of it, of
6 course.
7 At one point she said to me, "Well, are you
8 still hearing any cases?" And, of course, I felt quite
9 outraged because, my gosh, to think about how active an
10 active judge I am. Especially when, you know, many
11 decisions are candidates for en banes and it's a lot more
12 work, you know, and you're trying to forestall it or 0 13 working on an en bane decision. So I probably had sort 14 of an indignant tone, and I said, "Well, I am an active
15 judge." And she was a little taken aback and I said,
16 "Look, I'm the only woman that's ever been on that
17 court." She said, "Why that's incredible," and she
18 looked just amazed.
19 MS. BRABBIT: That clearly caught her by
20 surprise.
21 JUDGE MURPHY: Oh, yes, and she knows much
22 about the federal judiciary, and she said, "Well, then
23 you can't leave."
24 MS. BRABBIT: She has great admiration for
25 you. 690
1 JUDGE MURPHY: Well, you know, we've been
2 around a while. But I'm just looking at the, I've got
3 another case right now that the chief judge is a
4 proponent of it going en bane, and you get the response
5 that's been requested for the petition that sets a vote
6 up in our court. They could have done a lot better job.
7 This is a case about sex stereotyping. I don't think we
8 would have talked about that, because I didn't know about
9 it a year ago.
10 MS. BRABBIT: .,No.
11 JUDGE MURPHY: A woman had been successful
12 in a chain of motels as a clerk at the front desk, 13 originally as the night clerk who also did some auditing C) 14 but then had other shifts, and was urged for a promotion.
15 The head of the HR, so to speak, or the person who
16 appointed people for the chain, okayed it on the
17 recommendation. So she started working in the position.
18 Had no difficulties until the head person for the
19 personnel saw her and was really upset because she didn't
20 have the "pretty Midwestern girl look," and it turns out
21 that the woman is a, as they said in the response,
22 tomboyish, or as her former supervisor said, "She had the
23 Ellen DeGeneres look," suggesting strongly that she might
24 be a lesbian, or taken as a lesbian. She had short hair
25 and mannish clothes, that is what is in the record, and (J 691 n 1 that isn't what this person liked for their front desk.
2 Her predecessor, who she complained, why didn't we get
3 somebody like that, wore a lot of makeup, high heels,
4 tight clothes. There was no employment policy that was
5 violated here. They did have a policy on dress, but
6 there was no violation of that, and there was nothing in
7 the case about. What was interesting legally was it
8 wasn't a case trying to say that men are treated better;
9 it was really based on Pricewaterhouse and the progeny
10 that had been utilized in a number of circuits
11 successfully. So there was a lot of authority on our
12 side, because there was no attempt to say this is a bona 0 13 fide professional qualification here, and nothing in the 14 record that would suggest that. So, anyway, it's a very
15 interesting case.
16 MS. BRABBIT: What's the name of the case,
17 Judge?
18 JUDGE MURPHY: It is Lewis v. Heartland
19 Inns.
20 MS. BRABBIT: Are you seeing an increase or
21 a decrease in cases related to gender and diversity,
22 would you say, in the last couple years?
23 JUDGE MURPHY: Well, there have always been
24 a lot of them, but we have some case law that is quite
25 unfavorable for what some people would consider, you 692
1 know, lack of -- well, the lack of interest in cases 0
2 where the woman is feeling threatened by the way she's
3 being treated by what's said to her or how close people
4 talk to her, how close they·'re standing, whether she
5 perceives this as threatening or a come-on and so forth.
6 We've got a case on that that didn't go en bane that
7 would impede, you know, some people from bringing cases.
8 MS. BRABBIT: Do you have a sense of how
9 many are being handled dispositively at the district
10 court level?
11 JUDGE MURPHY: I wouldn't know that. This
12 is a, you know, when I was a district judge, the Eighth 13 Circuit rule basically was summary judgment is C) 14 disfavored. And I would say that now the court, a lot of
15 the attitude on the court is that it makes sense to throw
16 out the case that doesn't look like it's a very good one.
17 MS. BRABBIT: Are many of them going en
18 bane?
19 JUDGE MURPHY: Well, not the ones that go
20 against the plaintiff.
21 MS. BRABBIT: So in terms of not just, you
22 know, women and members of society, the women who
23 contribute to the workplace in very valuable ways, but in
24 terms of women attorneys looking forward in the next
25 decade, what do you see is the top one or two challenges 0 693 t'J 1 women lawyers, women judges will face, given the progress
2 that we've made, and yet the gap that still exists?
3 JUDGE MURPHY: Well, I talked to you about
4 that before. I think that there's been a lot of
5 progress. I think women are respected as lawyers and
6 litigants and judges in a way that was harder to
7 establish when there were very few. That's likely to
8 continue, but if the public wants to have women in
9 places, they should speak up about it because it's a
10 sense of awareness, and it isn't just women.
11 I gave you a quote the other day because a young
12 woman is writing a Law Review article and she wanted to 0 13 have a quote from me, and normally I don't do that but, 14 look, I've been through a lot. I don't want to damage my
15 standing with my colleagues because that's critical to
16 being, you know, any kind of effective member of the
17 court, but I do think diversity matters, both in the way
18 the public perceives the work of the court, who is making
19 these decisions that they may or may not like, and in the
20 actual work, because I think decisions are informed by
21 the background of judges, the different professional
22 backgrounds that they have had, the different life
23 experiences, differences in ethnicity and in gender.
24 I mean there are some things I probably could be
25 more sensitive to because of what I've seen and 694 (~) 1 experienced in my life than the average man, and I would
2 say Judge Smith, who is a black judge, has had
3 experiences that none of the rest of us have had. And so
4 ~ think it's important. And so often people assume that
5 all the courts are representative now, it's all been
6 taken care of. So if people care about the issue, they
7 have to address it and talk about it, write about it.
8 MS. BRABBIT: And I think you've mentioned
9 before, too, that it's important for women to put their
10 names forward and to encourage other women to put their
11 names forward.
12 JUDGE MURPHY: Right. And there's the fear
13 of failure, you know. In this recent opening in
14 Minnesota the senator who was the lead person on the
15 recommendation is a woman senator who is very interested
16 in getting women appointed, made it clear actually to
17 everybody that she was interested in appointing a woman.
18 And because of the way the process was handled, I don't
19 know for sure who all of the applicants were, but I do
20 know that there were people who.~tepped forward that
21 weren't the usual suspects. I mean, you know, the person
22 who is going to get the spot because she's had her White
23 House interview, she's a usual suspect because she's a
24 magistrate judge now. When you have a responsive job
25 that's not in the court system, anybody who puts their 0 695 () 1 you can be embarrassed when you put yourself forward.
2 People say, "Her?" Or reviewing groups, you know, can be
3 critical. But I think it was great that so many came
4 forward.
5 MS. BRABBIT: And you're referring to
6 Magistrate Judge Susan Richard Nelson?
7 JUDGE MURPHY: As being the very popular
8 winner of the lottery.
9 MS. BRABBIT: Yes. Do you see the channels
10 for women, in terms of the federal judiciary, being
11 primarily a pipeline through the magistrate system, or
12 what are your thoughts about women coming from other 0 13 sectors of the legal profession? 14 JUDGE MURPHY: Look at Karen Schreier, who
15 is a district judge in South Dakota. She went directly
16 on the bench from being U.S. Attorney, just like Judge
17 Colloton and Judge Gruender. So, you know, some people
18 have been surprised that this administration hasn't
19 encouraged resignations so they could appoint new U.S.
20 attorneys, but basically they're all staying there,
21 except for a few exceptions. Other than that, it would
22 be a good opportunity for women probably to put
23 themselves forward because there are a lot of assistants
24 around who are very capable women.
25 MS. BRABBIT: What are some of your -- 696
1 JUDGE MURPHY: So that's a very good 0
2 stepping stone. If not U.S. Attorney, to be an
3 assistant, to have been in the federal system is a very
4 good stepping stone. But, you know, there are a lot of
5 people that go from being a law professor. There are
6 more women that are law professors, as you know, being in
7 that field. You know, we've got one judge on our court
8 that came from being -- well, three from law firms where
9 they were the big deals in the law firms. Those tend to
10 still be men, but not always.
11 MS. BRABBIT: And the trial experience has
12 been helpful as well? 13 JUDGE MURPHY: Absolutely. That's one of C) 14 the reasons why being assistant U.S. attorney is a good
15 experience. We have three judges on my court who were
16 state supreme court judges. We have three federal trial
17 judges.
18 MS. BRABBIT: So the Eighth Circuit is
19 representative of a very diverse means to
20 JUDGE MURPHY: There are three of them that
21 came from law practice, two from U.S. attorney positions.
22 MS. BRABBIT: Judge, you also mentioned to
23 me earlier today that you've got some upcoming new
24 committee work that you're looking forward to. Do you
25 want to mention a little bit about that? 0 697
1 JUDGE MURPHY: Well, the University of
2 Minnesota, my alma mater, the law school, has a new dean,
3 Dean Whitman, who comes very well-recommended and seems
4 to have his head in a good place. He has asked if I
5 would serve on a ten-person committee to help him draw up
6 a strategic plan for the law school. I'm really not
7 looking for more outlets, but that was one that piqued my
8 interest because the law school has had some difficult
9 times, in the last decade particularly, and there's great
10 hope with this new leader, and I think it's so important.
11 Of course, the whole University will be having another
12 capital campaign and so on down the line -- but to make a 0 13 plan and how it's going to, what areas it's going to 14 emphasize and how it's going to regain the stature that
15 it has lost somewhat. So when I see an opportunity for
16 something where I think I can make a difference, a good
17 cause I'm interested in, of course I'm willing to sign
18 up.
19 MS. BRABBIT: Your talents will be much
20 appreciated in that area, much appreciated. And you
21 managed to also mix a little business with a little
22 pleasure, and you recently came back from a trip with
23 your family as well.
24 JUDGE MURPHY: I was going to say the other
25 thing, because having been the chair of the University of
( ' \ __/ 698 () 1 Minnesota Foundation, as well as the president of the
2 University of Minnesota Alumni Association, I've got a
3 lot of background in the University and how the law
4 school fits together and the way the planning goes and
5 who the people are in the main spots at the University.
6 Okay, enough of that.
7 Yes, my husband and I and our two sons and their
8 wives and our two grandchildren have just spent two weeks
9 down in Phoenix escaping the snow and ice at the Biltmore
10 Hotel, and it. was so much fun. Every morning the
11 grandchildren abandoned their parents and wanted to sit
12 with Grandma and Grandpa. You know, what could be
13 better? I joined them at the pool, had some nice lunches
14 at the pool, watched the one do her first real swimming.
15 And as I approached the pool she yelled, "Grandma, I can
16 swim," so it was very nice being there for such a
17 momentous occasion.
18 MS. BRABBIT: Right. Those are milestones.
19 JUDGE MURPHY: And it was nice to be able
20 to go back to the Heard Museum, which I love, it's about
21 American Indian history and art. I learned about a
22 painter and sculptor I didn't know about, Allan Houser,
23 and saw some very striking work of his. I bought two
24 dreamcatchers. I had a bad dream one night. It's very
25 disturbing to me, you know, my young grandchildren will 699
1 get bad dreams, you know, it seems to be universal. And
2 the idea, I mean I'm not superstitious, but the idea of
3 these dreamcatchers that the bad dream just will get
4 caught in this mesh of netting and feathers or beads, I
5 love. So the very next night I went to bed with one
6 displayed sort of like it would be relevant to where I
7 was sleeping, and no dream at all that I knew about. So
8 that was fun.
9 We have some social friends who have houses down
10 there and we had dinner at their houses on different
11 evenings. Look around, I mean that area, I've gone to
12 that area for 30 years, and it's changed so. You know, 0 13 it's so crowded and everything is more of a hassle and so 14 on, but I love the desert, so it was a lot of fun.
15 MS. BRABBIT: Very, very nice.
16 JUDGE MURPHY: So now I'm back and looking
17 forward to Memorial Weekend to go up to our cabin up on
18 Lake Superior. And then in July we, at least Joe and I
19 and at least part of our family, are going to go to
20 Berlin for two and a half weeks. But in the meantime
21 I've got a lot of work to get done, of course.
22 MS. BRABBIT: And a lot of decisions that
23 need attention.
24 JUDGE MURPHY: One of the things that's
25 very nice that's happened, and it's increased, it's 700
1 natural that it would happen when you've been a federal
2 judge for 30 years, is that, you know, the law clerk
3 group gets more and more solidified. And when people are
4 thinking about what they're-going to do next, I mean they
5 turn to some of the former law clerks and they hold
6 reunions in various spots that they travel to, and
7 everything is really -- you only realize as the years go
8 on how important that relationship is, from my point of
9 view, and it turns out it is for the law clerks, and to
10 see that -continuing .influence. And Erin just asked me if
11 I would do her wedding in September, and that's a very
12 special thing, and so that's one of the really wonderful
13 things.
14 The relationship between judges and their law
15 clerks is always something that you value. You've done
16 it for so many years and you get better in how you can
17 assign the work and try to bring them along to where you
18 need, the level you need for the particular work that's
19 being done. I can enjoy it more. At an earlier stage I
20 got frustrated sometimes because if X doesn't have this
21 thing done, what am I going to do? And you learn ways
22 that you can help bring it along. It's not to say that
23 you don't ever have an incident where somebody is not on
24 the right track yet, but I did want to mention that
25 before we close here. 0 701
1 MS. BRABBIT: Well, you've built so many
2 wonderful communities and been instrumental in building
3 so many, it's nice to hear about the extended community
4 of your law clerks and how close that they are, and I
5 know from talking to them how much affection they have
6 for you.
7 JUDGE MURPHY: Joe and I had a great big
8 party in December. Doing all that I do, it's not easy to
9 entertain. Anyway, we had over a hundred people for a
10 black tie party, and it was really, you know, with place
11 cards and all the tables designed for people to really
12 enjoy each other at the tables of six or seven, and it 0 13 was really -- people so appreciated having that many 14 people, they all knew each other to some extent, some of
15 them very well, and like Joan Mondale said to me later,
16 "It was the old gang." Anyway, it was really nice, and
17 you realize how important all those ties are. I don't
18 want to sound like, you know, Cinderella, who doesn't
19 have any life outside of the work.
20 MS. BRABBIT: Well, you do so much outside
21 of work that I think you have nine full-time jobs,
22 including your tremendous outreach and your sharing of
23 gifts with other people. And that includes, of course,
24 Judge, this project that we've been working on is a
25 tremendous gift to others, and I know others will see it 702 0 1 that way, so thank you for that.
2 Do you want to add any comment about the ABA
3 Women Trailblazers Project?
4 JUDGE MURPHY: Well, I thought from the
5 beginning it was a wonderful thing that the ABA did,
6 because it was the ABA, period. It wasn't the women's
7 division, so to speak, of the ABA, recognizing that this
8 was a period of history. This was a period of history
9 where women did get into kinds of positions and were able
10 to do things that. they weren't before and so on, and that
11 it was important to have history, and I'm pleased to have
12 been picked as one of the people to have the interviews. 13 They're hard to fit in, and I guess you and I have taken 0 14 more time than we should have. It's been so enjoyable,
15 and it's been wonderful getting to know you better. I
16 assume that at some point people that are interested in
17 the development of the law and so on may use them for
18 research and so on. I certainly hope they're not going
19 to be on the Internet or anything like that because I've
20 just been so open about how you think as a judge and how
21 you think on a collegiate court in order to try to arrive
22 at a certain result, and it wouldn't be understood. So I
23 hope things will be not destroyed, but very carefully
24 guarded for their use.
25 MS. BRABBIT: Thank you for your candor and () 703
1 your honesty throughout this whole process, Judge. Are
2 there any --
3 JUDGE MURPHY: Thank you for the time
4 you've devoted to this.
5 MS. BRABBIT: It's been absolutely
6 delightful. Are there any parting thoughts you'd like to
7 leave us with?
8 JUDGE MURPHY: Well, I wonder what the ABA
9 is going to do, because I, for one, would like to see the
10 list of, I suppose they have a list right now of the ones
11 that have been completed, and I have the impression from
12 what I've heard elsewhere that some of them took a short 0 13 time, and that may have been the best. But on the other 14 hand, there's a lot of detail here about one person's
15 life and work.
16 I know they did a, probably during the, I don't
17 know, it could have been the Carter years or the Clinton
18 years, I don't know, they did a lot of oral histories
19 that were funded by some national program, and my father
20 grew up in Olivia, Minnesota, farm country about a
21 hundred miles from here. Very stern Germans. In fact, I
22 just saw the "White Ribbon," a movie that made me
23 understand my family better, although you would be
24 horrified if you saw it because there's so much cruelty
25 and so on, but just the way those farmers had to, the 704
1 lives that they had in comparison with the Baron there C>
2 and so forth. Anyway, I grew up, you know, going out to
3 the farm and lived there that one summer, and the way
4 these guys would talk and everything was so different and
5 so on. Well, this oral history is so wonderful because
6 it got their cadence, and they had interesting details,
7 too, but it had, I could just hear them talking, even
8 though I was reading it, because what I read was the
9 printed version of them, the cadence, the strange
10 wording, so .I think oral histories_ are great.
11 MS. BRABBIT: And I know many who read your
12 oral history will think the same, Judge. It's been
13 absolutely tremendous. Thank you.
14 I want to extend a thank you, Judge Murphy. 0
15 This concludes the taping of your oral history for the
16 Women Trailblazers Program, a project of the ABA
17 Commission on Women in the Profession. On behalf of the
18 ABA, the Commission, and all the lawyers and judges who
19 will read, learn, benefit and grow from your history,
20 thank you. Thank you for your generosity, your time, and
21 your unconditional commitment to the profession and to
22 the administration of justice.
23 This concludes our oral history.
24 JUDGE MURPHY: Thank you for your unselfish
25 devotion to this project. 0 705
1 MS, BRABBIT: It has been absolutely, like
2 I said, my honor, Judge. Thank you.
3 (End of session.)
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