May 30, 2012
Gender, the Tax Court, and the Tax Bar: 1938-1970
Several women in her circle organized the Women’s Division of the Democratic National Committee, which, after FDR’s election in 1932, found government jobs for female professionals. ... [I]n June 1936, the Women’s Division landed her a presidential appointment to a twelve-year term on the U.S. Board of Tax Appeals. She replaced the BTA’s first and only female member.
The BTA (renamed the U.S. Tax Court in 1942) was organized as an independent agency, distinct from the Treasury Department, to hear appeals from the Bureau of Internal Revenue (BIR; now known as the Internal Revenue Service). It was a “legislative” or “administrative” court, not an “Article III” court in the federal judiciary. Sitting alone, members of the BTA decided appeals on a record created before them by the lawyers for the taxpayer and the BIR under the procedures federal courts followed in equity cases. As a tax lawyer explained in 1939, “Winning or losing a tax case before the Board is precisely the same as winning or losing a law suit before a court–no more, no less. Both demand the same capacities and the same tactics.” When Harron and the other members of the BTA heard cases outside Washington, they often used the courtrooms of the state and federal judiciary.
In 1945 a female lawyer at the BIR praised Harron “for the clarity of reasoning and breadth of knowledge of tax law revealed in her opinions.” Yet when her term ended in 1948, the members of ABA’s tax section voted 104 to 57 against her renomination. Senator Walter George (D. Georgia), one of the conservatives FDR targeted in the Democratic primaries of 1938, called a hearing to see whether, as the tax lawyers charged, Harron lacked “the temperament to sit as a judge.”
No one suggested that Harron’s written opinions were less than competent. Instead, the case against her turned on her conduct in the “courtroom.” “She handles her trials in a disgraceful fashion, insulting both attorneys and witnesses,” one lawyer complained. Another, George Morris, charged that Harron had usurped “the privileges of counsel” by deciding the order in which the various parts of a case would be taken up. Another lawyer testified that in one of his cases “the entire order was rearranged so that I could not remember what had gone in and what had not gone in, and when I got through with the trial I did not know whether I had proved my case or not. I was uncomfortable and humiliated by being told that I was not proceeding properly with the case.” Although the lawyer had appeared before the BTA and Tax Court for twenty years, Harron had “lectured [him] continually like a young school boy.”
Morris denied that the tax lawyers opposed Harron’s reappointment because of her sex. “I am very much in favor of . . . recognizing the ability of the many able woman lawyers in this country,” he said. Indeed, the ABA’s tax section had named two women to its list of sixteen candidates for vacancies on the Tax Court. Still, Morris thought it “very important to the tax-collecting system of this country that the confidence of the people be maintained in the tax system and that the [taxpayer] . . . have his day in court.” Further, the client’s counsel was “entitled to courteous treatment.” Although Tax Court judges ought to follow “the best standards of judicial procedure,” that was not what lawyers had come to expect from Harron. Indeed, Morris reported, several had used words he did not “care to repeat for the record” when they learned that they were to appear before her.
In reply, Harron acknowledged that she had pointed out when lawyers made mistakes, but she characterized her remarks as “observations” not “criticism.” “I have never consciously embarrassed counsel,” she said, “and I have endeavored to avoid the appearance of being unduly critical or stern with any counsel in any proceeding.” But, she continued, “it is the business of the judge to do nothing less than justice. If that is to be attained, sometimes . . . the court itself must interrogate witnesses and ask questions which trial counsel might not have asked.” If forced to choose between doing “exact justice” and hurting “the feelings or pride of some trial counsel,” Harron thought her duty plain. “I am to obtain the facts.”
J.P. Wenchel, a former BIR General Counsel, spoke on Harron’s behalf. He opined that other tax lawyers opposed Harron’s reappointment because “men do not like to be criticized by women. . . . [B]eing criticized by a male judge is bad enough, but when a woman takes [a case] over, it is just adding insult to injury.”
Harron was reappointed, and she served on the Tax Court until 1970.
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