Faith S. Hochberg, Federal District Judge and former U.S. attorney, stands five feet three inches tall, her blonde hair framing quick eyes and an engaging smile. Behind that disarming visage lies a story of countless firsts, decades of hard work and, ultimately, triumph. But this is not a story of perfection. It is a story of confidence. Confidence to enroll and excel in law school when many thought it was “cute” for a “girl” to dabble in a man’s profession, to return to work with an 8-week-old baby at home because she wanted to be at court for a trial and honest enough with me — and herself — to say that she wouldn’t have done it any other way. This interview was conducted over several sessions, with breaks for a parole violation hearing as well as closing arguments in a patent-infringement suit. During our talks, I was inspired by her determination, astonished at her anecdotes, and humbled by her candor.
This interview has been edited and condensed.
Judge Hochberg: I was very creative. My earliest memories are of designing incredible outfits for paper dolls. I didn’t make the dolls do anything. I just liked to dress them in my exotic creations.
At my eighth grade graduation ceremony, the school presented prize envelopes to the best male and female students. When we opened our envelopes, his was a check for $10 and mine was a check for $5. I asked why his award was twice as much as mine, and the answer was, “Well, he is male, and you are female.” So I thought, I’ve got to change that!
Not exactly, but the issue of inequality loomed large in my decision to go to law school. During college, I was a research assistant for the dean of Jackson College at Tufts University. She was a lawyer and, at one point, we had a discussion about her research on inequities in educational opportunity. When I told her I was thinking of applying to law school, she was very encouraging and, in fact, wrote a letter that was extremely helpful in getting me into Harvard Law School.
In conversation with law clerks before closing arguments for a patent infringement trial.
[Laughing] I called my parents and said, “Oh, I got into Harvard Law School.” There was a pause at the other end of the line, and one of them said, “Well, we don’t like lawyers much in this family.”
Have you seen the movie The Paper Chase? Like that. In my section of about 100 students, my memory is that there were six or seven women. We really stood out. It was a time when, if I asked a question or made a comment, it was not surprising for a guy to come up after class and say, “That was interesting to hear the women’s point of view.” And I would say, “You know, that’s not the women’s point of view, that’s my point of view. I haven’t compared notes with the other women in the class. You can’t just assume that, because I am female, I am presenting the women’s point of view.”
Well, there’s an oft-repeated tale among the women from my section of HLS ’75 — in the first week of class, the criminal law professor told “the rape joke.” I won’t repeat it, but essentially the punch line was, “I told her to just lean back and enjoy it.” He actually thought it was a joke!
Quietly, by no prearrangement, we all got up and walked, against the tide of people leaving, to the well of the lecture hall. The professor had about six or seven women around him. Each one of us, independently, said, “Rape is no joke and you cannot tell that disgusting joke in a criminal law class just because you are teaching about the crime of rape.”
I think it rattled him. I hope it changed him. To his credit, I heard much later that he changed dramatically. We were a hardy band of women. Another time, a professor invited a group of women to lunch and essentially told them that he couldn’t understand why they were at Harvard Law School. Since they wouldn’t stay at the bar after they had kids, why were they taking the place of a man? I think we had to deal with issues that women wouldn’t dream of having to deal with now.
No. I actually tried to figure out why they thought that way. How could they project what my life was going to be like? But yes, there were times that gave me pause. In my first year, I wrote letters to several firms in Boston, looking for a summer job. One law firm — a major one that I won’t name — wrote back to say that I looked like a very promising young lawyer, but they already had one woman in the firm and didn’t need another. I couldn’t believe it when I read that. You would be amazed to know which firm it is. I was taking Constitutional Law at the time from Gerald Gunther, a well-known professor visiting from Stanford. When we got to Equal Protection, I raised my hand, described the letter and asked, “Is that a violation of the Equal Protection clause?” He said, “Well, we haven’t gotten to the state action requirement yet. It isn’t really, but come see me after class and I will explain it.” After class, he briefly explained the state action requirement, and said, “I need a research assistant this summer to work on the annual update to my casebook. If you want the job, it’s yours.” I accepted. I got a job because I opened my big mouth.
On the bench in the old courthouse at One Federal Square, Newark, NJ.
Probably, but it didn’t deter me. Not a lot of things deter me. If you don’t get over your nerves early, it gets harder and harder to join the conversation. I don’t give up that easily. I don’t accept defeat very well. Sometimes in life you get defeated, but I am pretty tenacious. I may even appear to be more tenacious than I really am. There is a double standard for women who are thought of as tough — the same words and demeanor coming from a woman and a man are not viewed the same. And it’s not fair. I would like to ban the double standard.
Shortly after I became the U.S. Attorney [for the District of New Jersey], a rather nasty interviewer, who was trying to get under my skin, said, “Do you think you have a prosecutorial personality?” I don’t even know what that is. I said to him, “If you mean that I want to know all the facts and make a judgment call based on those facts as to whether I think someone has or has not broken the law, I suppose I, like anyone else, have that personality.” I just refused to see anything negative in his question.
I am sure I have. I’ve had a lot of jobs in which I had to make a lot of people pretty unhappy. I was only 40 when, during the savings and loan crisis, I was running an office within the Treasury Department to determine who would be referred to a United States Attorneys’ Office for criminal prosecution. What we do is not a popularity contest, and women can be too afraid of being unpopular.
I think it’s true. I think we feel it more deeply. We don’t shrug it off as much as the men do when something nasty is said about you. It eats at you. It eats at me, absolutely.
No. I can’t say I haven’t cried at home, but I haven’t cried on the job. I came close once. In a job long ago, my boss in Washington took matters to an extreme when dealing with lawyers in front of their clients. He went from firm to practically disemboweling them. I tried to talk to him about it because I thought it was hurting the mission. He was so angry that he threw me out of his office and slammed the door so hard that he almost broke my nose. That’s when I almost started to cry. I maybe even went to the ladies’ room and blinked a few tears and then wiped them away with a paper towel so no one would see. But I never allowed anyone to see me with bloodshot eyes, or anything like that. I was angry. Another time, much earlier in my career, I was sexually harassed. I didn’t cry. I just quit.
My only plan was to have the courage to change and leave things even if I was successful at them. I will do that even when I leave the bench. To take the risk, maybe fail.
There were defeats that really defeated me. For example, I thought I was going to get a Supreme Court clerkship. All of the signals were there, when, all of a sudden, circumstances changed. I was pretty devastated about that one. I cried at home about that one.
Early. I was the first woman pregnant on the job at Ropes & Gray. When I told them, there wasn’t a look on any man’s face that was like, “Oh, my God, what are we gonna do now?” Not one. There was true joy, real happiness. They developed a maternity policy for me, and they did a wonderful job. They gave me, I think, three months off, which was very generous at the time. I didn’t end up using all of it because I had a case going to trial. I went back after eight weeks, voluntarily, because I didn’t want to miss the chance to second chair a major trial. But they made it perfectly clear that it was my choice.
I think there’s just been a different approach to motherhood. My mother’s generation did not self-judge. They just got through the day. They piled us kids into cars without seatbelts — of course, there were no seatbelts because they didn’t exist. We were allowed to go bicycle riding without telling them where we were going — we were expected to watch out for cars and show up back home at dinnertime. There is a higher, self-created expectation of motherhood today. Many professional women expect to nurse for a long time, including my own daughter. If they enjoy it, great. But if they don’t, they still feel pressure to do it and will sit there with tears running down their cheeks trying to nurse. I don’t think we did that…we didn’t know what everyone else was doing. It seems like motherhood has become an AP exam among high-achieving women.
My mother was a true mathematical genius, and I am not using that word lightly. She was the only child of an immigrant mother from Romania and a product of the New York City public schools. She got a degree in math at Hunter College and went to work for International Telephone & Telegraph just as the war broke out — that’s where she met my father, who was just starting out as an electronics engineer. When the war ended, she took on the typical role of a 1950s American housewife, wearing pretty dresses and aprons (never pants), staying home to take care of four kids. She tried to do that and, for a while, she succeeded. But then — in retrospect — I think she became depressed. She wanted to continue her career. She went back to take courses at Rutgers in order to teach high school math and was astonished when the Ford Foundation chose her to be part of an elite group of mathematicians investigating the scientific potential of the computer made by IBM. She became one of the very early scientific systems analysts and was very much sought-after, more so than my father after a while.
With everyday difficulty. There were no good daycares that matched the hours we worked, so we had to have in-home help. Some were really wonderful, some not so much. It was not easy. We didn’t have parents living nearby. At one point, during the hardest years, we hired a babysitter to come on Saturdays and stay until around noon on Sunday, so we could get some sleep. I remember thinking, “I don’t think I can do it one more day!” This may sound un-PC, but I don’t for a minute regret working instead of being home full-time.
I was certainly not the perfect mom, and my daughter would be the first to tell you. She still teases me about her birthday party in third grade. I was in the middle of a criminal trial, and I scheduled the party. It was a pool party, but I forgot to send out invitations. Isn’t that horrible? Only three people showed up. Your readers will go “Oh, my God, I would never let that happen to my child.” Now she’s a 33-year-old lawyer herself and we laugh about it.
I don’t blame them. It’s a hard model, and this is barely a glance at it. It seems that now some of the women who stay in the private firm model, through partnership and beyond, have spouses with careers that are more flexible. And that makes it work. But back in my day, there weren’t many spouses available like that. Back then, if a guy found out you were in Harvard Law School, that’d be the end of it. My husband was the different one.
Honestly, I didn’t think of it as a compromise. I got the job at the U.S. Attorneys’ Office right before my second child was born. I arranged a start date when he was about two or three months old. So, I would have been 33. You could manage your time better there than at a private firm, by far. You could bring work home with you. You didn’t have a boss showing up on Friday night, saying, “I need this by Monday morning.” I would work after the kids went to bed virtually every night, but as long as I got the right result, I was in charge of my own time. That was very mother-friendly compared to private practice at the time.
I got some fine trial experience at Ropes & Gray, but you will never get enough of it to be comfortable. I felt that it was a good chance to learn criminal law, to try cases completely on my own, to argue a dozen Third Circuit arguments in a year or two — which you wouldn’t get in a lifetime in the private bar. It opened my eyes to the fact that people tend to categorize lawyers as doing civil or criminal. I got to do both, and the phone would ring for the rest of my career because I knew both. Plus, the U.S. Attorneys’ Office was, at the time, the best law firm in the state.
First day as a judge, a family portrait.
Someone had to be there in case a kid broke a leg! My husband was a heart surgeon, so he wasn’t coming home in an emergency. I had to be able to drop everything if an issue arose. So, despite many offers, New York City wasn’t an option for me.
[In the office] there’s a wall with pictures of all of us going back many, many years. It was a bunch of guys in grey suits, and me in a purple suit with bright blue eyes. It was quite a surprise, I think, to a lot of people who walked in. But I never detected any challenge. Remember, I had been an assistant U.S. attorney in the same district. I wasn’t a figurehead appointee by any means. I had a rock-solid background as a prosecutor who would actually try cases, understood the distinction between a federal prosecutor and a state prosecutor and how law enforcement agencies needed their work to be handled. I wasn’t an unknown commodity.
Heavens, no. I thought a highly competent federal judicial system was one of the hallmarks of the United States, and if I could be a part of that tradition, I wanted to be. But I wasn’t going to become a judge just to be able to wear a robe and have people stand up when I walk into a room. My job is managing disputes well with the tiny resources I have.
I have a system of dealing with the hundreds of cases that are assigned to me, whether or not I am actively working on them. I want to make sure things move ahead in a timely fashion and that my courtroom is managed effectively. Right now we have a disconnect. In many jurisdictions, judges are handling civil caseloads of upwards of 350 — plus criminal, and the criminal trials get priority because of the Speedy Trial Act. The resource issue is serious. I think for any judge the two big challenges are making the entire docket run efficiently and becoming comfortable with areas of law you had never heard about.
I do think that as a woman, one learns to read faces as well as words, to discern what someone is really trying to say or to avoid saying, and to know quickly if you are being given an answer that avoids the question. It’s hard to know if men bring the same perspective, having never been one! But my hunch is that women have learned to pick up on when someone is trying to give them a line, and that can occur in a courtroom as easily as at a bar!
I have never directly felt hostility from other women. I’m proud of young women balancing their careers and choosing what they want to do.
I worry whether there will be an ultimate macro effect if so many women, having such a wonderful education, don’t go on to start a business, teach, work for a nonprofit and the like. There are so many things women can do.