From Supreme Court to eviction cases, top lawyer had last word

McClatchy NewspapersJanuary 5, 2009 

WASHINGTON — Few lawyers are good enough to argue before the U.S. Supreme Court. The late Barbara McDowell did it twice in one day.

As one of the elite cadre of lawyers in the U.S. solicitor general's office, McDowell argued 18 cases before the Supreme Court. The numbers — two cases in a day, 18 overall — are proxies. They represent, but cannot capture, McDowell's sterling reputation.

"Barb had an amazingly sharp, analytical mind," recalled University of Pennsylvania law professor Sarah Barringer Gordon. "Barb was a superb editor and writer, partly from her years working as a journalist, and partly because she loved the give and take of really fine persuasive writing and argument."

On Friday, 14 months after she was diagnosed with brain cancer, McDowell died at her northern Virginia home. She was 56. Now, preparing for a Saturday memorial service to be held in suburban Maryland, McDowell's friends must juggle grief with celebration.

They cite numbers, such as the roughly 50 cases McDowell argued in recent years as appellate advocacy director for the Legal Aid Society of the District of Columbia. They recall choices, such as McDowell's mid-life decision to represent the poor instead of the powerful. They summon memories, painful and sweet.

"She worked harder than anyone else," said Gordon, who first met McDowell in the mid-1980s at Yale Law School, and "she was very funny, often with a wickedly observant sense of humor that delighted us all."

Another friend, now a prominent Supreme Court practitioner, recalled how McDowell always "completely mastered the law and the facts of the case she was arguing." However, this former colleague from the solicitor general's office also asked not to be named, saying it was "just too sad for me" to be talking on the record.

Born in Oakland, Calif., McDowell was raised in Fresno, Calif., where her mother, Joyce, still lives. McDowell embraced politics early, helping run the 1972 Fresno County campaign for Democratic presidential nominee George McGovern. Pointed toward government, she transferred from Fresno State to George Washington University in Washington.

"I was one of the few people who'd cut class to go to a (Fresno County) Board of Supervisors meeting," McDowell once said of her high school career.

McDowell steered her career in a way that others wouldn't.

She worked as an editor for several years after college, before entering Yale Law School. She went into private practice, but then took a pay cut join the solicitor general's office in 1997. She took another pay cut to join the legal aid society in 2004.

"I could be making maybe 10 times what I make here," McDowell said last year, gesturing around her spare downtown Washington office.

McDowell added that her husband Jerry Hartman's own successful legal practice made her own virtuous career choice easier. Both were divorced when they married eight years ago. The couple had no children.

McDowell's legal aid clients could be trying, her courtroom victories poignant. In 2006, for instance, McDowell and her colleague Julie Becker prevailed in a case that kept District of Columbia resident Raesheeda Ball from being evicted after someone else's guns and drugs were found in her apartment.

McDowell likewise helped keep D.C. tenant Evelyn Douglas, who lived on $531 a month, from being evicted from an apartment she had difficulty maintaining because of her mental illness.

Such advocacy can be more art than science. However, it's still science. The two Supreme Court cases successfully argued by McDowell on Dec. 5, 2001, for instance, were painfully technical telecommunications controversies.

"The federal district courts have subject matter jurisdiction over cases contending that a state public utility commission has construed and enforced an interconnection agreement in a manner contrary to federal law," McDowell declared at the start of one case, the transcript shows. "That's true whether one looks specifically at section 252(e)(6) of the 1996 act, or more generally."

Then, inevitably, a justice interrupted with a question. These constant questions during oral arguments underscore the need for intense preparation, deft footwork and an ability to handle the bizarrely hypothetical.

"I mean, suppose I am a member of the People for the Ethical Treatment of Mushrooms," Justice Antonin Scalia mused during another 2001 court case. "And I think that mushrooms should not be eaten at all. Can I be compelled to take part in this advertising?"

"Well, then," McDowell replied, "presumably you wouldn't be a mushroom producer and you wouldn't be covered by this statute."

"Oh no," said Scalia, who generally likes to have the last word. "I produce them to make them happy. I just don't harvest them."

Unhesitatingly, McDowell countered Scalia's question. She started to elaborate, and then faced the next question, and one after that, and yet another, until her job was done.

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