BY WARREN COHEN
If it is true that the wheels of justice turn slowly, today's session in Manhattan's federal district court could be exhibit A.
"Is there a way to do this faster?" Judge Kimba Wood firmly asks the assembled attorneys. It is almost noon and the morning's antitrust hearing is proceeding at a tedious pace. At stake is a $450 million purchase of Nabisco's shredded wheat cereals by Philip Morris' Post-brand division. The New York State attorney general's office, on behalf of breakfast-eating consumers everywhere, is trying to annul the deal. In a market where the top three makers control nearly 75 percent of the business, they claim the sale will lead to higher cereal prices and damage the ability of smaller manufacturers to compete.
It is a classic antitrust problem. The central issue is whether allowing the third largest brand (Post) to gobble up the sixth will spur or restrict price competition in a business where the cost of cereal has climbed three times faster than that of other grocery store food over the past five years.
Last year, Wood refused to grant a preliminary injunction that would postpone the sale until a jury heard the case. Now, before the full trial begins, the New York State attorney general's office wants to enjoin Post from changing the design of the Nabisco cereal boxes, which it claims will irreparably taint the Nabisco name. They argue that health-conscious consumers of Nabisco shredded wheat products will stop buying the brand if it is marketed by the purveyor of such sugary cereals as Fruity Pebbles. Judge Wood will rule on the validity of this claim but must also determine if the preferences of these Nabisco consumers, who account for less than 3 percent of sales in an $8 billion market, are worth protecting. It is a complicated trial, but Wood, who specialized in antitrust as a lawyer, enjoys it. "I like the fact that these cases permit one to consider the interplay between social policy, economic policy and the law," she says. But she confides that the many entangled issues in the cereal suit can seem "kind of dense" to an outsider.
To rule on the injunction, Wood must cut through the arcane marketing maxims spouted by lawyers and witnesses, and she does. A case in point is her tough handling of the state's expert witness, a food marketing economist. The economist testifies that because grocery store retailers restrict shelf space to top brands, Nabisco has an important toehold in the market for a tiny brand, and that it must be preserved. Wood asks, "If the big four are favored, then as a logical conclusion, isn't it better off leaving the Nabisco cereal with number 3 [Post]?" The witness shifts in his seat and fumbles for an answer.
At five o'clock, Wood gently admonishes all the lawyers, vowing to interfere more the next day if the case doesn't move along faster.
Her calm demeanor and soft voice stand in a contrast to the bellicose caricature of a judge who rules the courtroom with an iron gavel. "When I was a lawyer, very good judges tended to be low key and tended to retain a sense of humor but maintained control of the courtroom," she says. "When they did, they brought out the best in lawyers and helped the jury understand what was going on. My goal is to find techniques that help do that."
A thin woman whose long black hair makes her look younger than her 50 years, Wood is recognized by lawyers as sharp and demanding. "She is exceptionally bright, quick to perceive and has tremendous analytical abilities," says Frederick B. Lacey, a former federal judge who also worked with Wood in private practice.
She is one of several Connecticut College alumni who are prominent in the nation's judiciary. The public first got a glimpse of her talents in 1990 when she sentenced convicted junk-bond king Michael Milken for violations of securities laws. Her sentence of a 10-year prison term raised as much controversy as her later decision to grant Milken parole after he had served only two years in jail. Her logic in handling the case was certainly one factor that led to her consideration as a candidate for the nation's attorney general last February.
Yet in some quarters Wood's public accomplishments pale beside her pioneering role for women in the law. She graduated from Harvard Law School when only six percent of her class was female and became one of the first women to break into the clubby, male-dominated world of antitrust law. Today, she sits just two levels below the Supreme Court on a federal bench where women comprise only about 14 percent of judges nationwide. In the past year, she has judged a moot court competition along with Supreme Court Justice David Souter and appeared with Justice Ruth Bader Ginsberg at an event celebrating 40 years of women at Harvard Law School.
She is viewed by many women, including myself, as a role model because she combines a female presence with an effective professional presence and self-confidence," says Laura Handman, a partner at the New York firm of Lankenau, Kovner & Kurtz. "She is not arch or shrill and the way she carries herself is impressive to women lawyers and other colleagues."
Wood, herself, refrains from talking about or promoting any kind of judicial philosophy. "Judges are not celebrities," she says. "They speak through their decisions."
Yet her past achievements as a lawyer and judge speak volumes, and her quiet determination in breaking barriers made her an appropriate choice for Connecticut College's commencement speaker this spring.
Kimba Maureen Wood was born on January 2, 1944, in Port Townsend, Washington. Her mother chose her unusual first name after searching through an atlas for suggestions, settling upon the pleasant sound of a small town in Southern Australia. Her father's occupation as a speechwriter for army generals forced the family to relocate many times among military bases in the U.S. and Europe. In fact, Wood notes that she was fluent in French before English.
Her interest in law was, at least in part, the result of these frequent family moves. "You realize very early on as a child that different rules apply in each place," she says. Wood recalls a time when she was 10 years old and her family was moving from Fort Leavenworth, Kansas, to Georgia's Fort Benning. Soon after entering the South, the family stopped for gas. Wood's former Catholic grammar school had taught pupils of all races, and Wood was oblivious to institutionalized forms of prejudice. When she went to get a drink, she was shocked to see two drinking fountains, one labeled 'white' and one 'colored.' "I've never forgotten that moment," she says. "Throughout my life there have always been times when I was interested in 'Who makes the rules? What are the rules?"'
This experience was not lost upon her arrival at Connecticut College. After transferring from Switzerland's University of Geneva, Wood took a constitutional law class from esteemed government Professor Marjorie Dilley while the civil rights movement stirred in the South. Wood remembers observing how federal judges became the enforcers of constitutional rights. Yet she didn't consider a career in law. "In those days, very few people thought of it as an option for women," she recalls. "No career counselor ever said anything about law school."
With Dilley as her role model, though, Wood switched her major from French to government, hoping to become a college professor. After graduating cum laude, she enrolled at the London School of Economics to study political theory. Two months later she decided not to pursue a career in academia and took the law boards. Her good scores opened the doors to the best law schools, and after returning to the states with a master's from LSE, she attended Harvard, graduating in 1969.
But even a Harvard degree did not guarantee a woman a job. One Boston firm flat-out told her that her interview was only a formality because they did not hire women. She eventually found her first position in 1969 at the Washington D.C.-based firm of Steptoe & Johnson. Among 45 lawyers, Wood was the lone female. "It was very hard to be seen or heard as a woman," Wood recalls. "You were close to invisible."
By necessity, her early years were the origin for the "gentle but tough" label she now carries as a judge. Fitting in at Steptoe & Johnson, and later at the New York-firm of LeBoeuf, Lamb, Leiby & MacRae in 1971, required certain concessions that seem unfathomable today. Though no fellow attorney ever explicitly asked Wood to fetch coffee, she remembers serving it because it helped put her colleagues at ease while she used the opportunity to draw attention to herself. "A woman back then had to work hard not to alienate people by being too intensely professional," she says. "So my way of dealing with it was to try to modulate my behavior so that I didn't offend people but still had my voice heard so that I could represent my clients appropriately."
Her patience, combined with an intense work ethic revered by fellow lawyers, helped her advance at LeBoeuf. But if being a female lawyer was rare, working in the antitrust arena was even more unlikely. Women attorneys were frequently assigned to legal back offices like estates or wills, not the tightly knit antitrust area where law firms collected huge fees. As an associate, Wood gravitated toward antitrust because her firm was defending a large paper company against a series of price-fixing charges. This was in an era when a brigade of state and federal trust-busters investigated companies like AT&T and IBM. By the late 1970s, Wood was one of only a handful of women doing antitrust work at major law firms. In 1978, she became a partner at LeBoeuf.
Since antitrust cases tended to involve a multitude of defendants, Wood enjoyed the opportunity to learn from dozens of fellow attorneys. They, in turn, came to respect her legal acumen. Stephen Axinn, now an attorney with Skadden, Aips, Slate, Meagher & Flom, worked with Wood on a case involving the insurance industry. He remembers the leadership role she often assumed with the group of roughly 25 male senior partners from major law firms. "She has a kind of serene calmness that overpowers people," says Axinn. "She controlled situations without raising her voice, which was disarming to ego-maniacal lawyers."
When Wood was being considered for a seat on the bench, she knew that leaving the life of a corporate attorney would mean more than a 50 percent pay cut as well as the endless demands placed upon members of an overworked judiciary. (Wood estimates that about 400 civil cases on her docket await a hearing.) But the possibility had always intrigued her. "A judgeship offered a unique and wonderful variety of work: the intellectual challenge, the opportunity to help in developing the law, and working with people," she says.
In 1988, New York Senator Alfonse D'Amato recommended Wood for a seat on the bench. Her friends recall cringing at D'Amato's testimony during her confirmation hearings when he told other senators not to let Wood's beauty cloud the fact that she was a brilliant lawyer.
As a self-described "moderate Democrat," Wood was a conspicuous exception to the stridently conservative judges appointed by the Reagan administration. Attorneys who know Wood speculate that her experience as a defense lawyer in antitrust cases, and, by extension, her belief in the efficacy of free markets, made her palatable to the Reagan administration. Indeed, Wood cites Judge Robert Bork, the failed Supreme Court nominee who is an opponent of government intervention in the marketplace, as a person who helped shape her judicial ideas with his 1978 book The Antitrust Paradox. At 44 years old, Wood became the youngest among 21 judges of the Manhattan Federal Court. And after just 26 months on the bench, too short a time to have accumulated a large judicial record, she randomly drew one of the most notable and controversial assignments of the 1980s, Michael Milken's sentencing.
As with all her cases, Wood refuses to discuss how she determined the length of Milken's initial sentence and his parole. In a plea bargain, Milken confessed to six felonies and paid the government $600 million in fines and penalties. Although his financial crimes carried a maximum of 28 years in prison, the courts had been criticized for light punishments of white collar criminals, and it was uncertain whether Judge Wood would mete out a jail term. If he did go to jail, legal observers predicted Milken would receive anywhere between three and five years. But when sentencing hearings began in September 1990, the economy had just begun to sour. Some blamed the problems on Milken as the legacy of the leveraged buyout era caused debt-laden corporations to shed hundreds of workers from the payrolls and sell off valuable assets of formerly healthy businesses. To many observers, Judge Wood wasn't determining the punishment of one man's crimes; she was passing judgement on the so-called decade of greed.
On November 21, 1990, Wood read from a prepared text in front of more than 200 courtroom observers. In a subdued voice that had onlookers straining to hear her sharp words, she told Milken, "When a man of your power in the financial world... repeatedly conspires to violate and violates securities and tax laws in order to achieve more power and wealth for himself and his wealthy clients and commits financial crimes that are particularly hard to detect, a significant prison term is required in order to help deter others." Asking Milken to rise, she said: "It is my hope that the rest of your life will fulfill the promise shown early in your career." Her sentence of a 10-year prison term drew an audible gasp from the assembly and dominated news headlines for days.
Later, when she granted Milken parole after only two years in jail, the shock was just as stunning. At Milken's sentencing, Wood left the courtroom without mentioning guidelines for his parole. Then, in February 1991, Wood recommended that Milken be eligible for parole according to standard guidelines, after serving between 36 to 40 months of his sentence. Since Milken assisted federal investigators by providing information about other financial crimes and testified at another trial, he qualified for a sentence reduction based on his cooperation. Milken had also been a model prisoner, tutoring his fellow inmates, according to prison officials.
With these considerations, Wood announced in August 1992 that she would waive a year of Milken's sentence, and after only two years in jail, Milken was freed in March 1993. Although barred from the securities industry for life, Milken retained his millions. Voicing an opinion shared by many, Massachusetts Congressman Edward Markey said, "I think Judge Wood's decision is outrageous."
Yet a close examination of sentencing guidelines reveals that Wood was not lenient at all. In most cases of cooperation, judges usually waive jail terms or cut them in half; Wood reduced Milken's sentence by only a third.
The hullabaloo arising from both of these decisions propelled Wood into the national spotlight. Her picture appeared regularly in newspapers and on television as pundits tried to predict the verdict. Wood, who says she loves her job and has no ambition to do anything other than what she is doing right now, remained unruffled. "I don't believe I treat any case differently because of media attention," she says. "It takes so much effort to be prepared and keep up with the lawyers and testimony there isn't room to be worried about reporters following you in the street trying to get an interview."
This calm in the face of controversy helped Wood survive her second moment in the national spotlight, her aborted nomination for attorney general. President Clinton had promised to name a woman as attorney general but dropped his first nominee, Zoe Baird, after disclosures that she did not pay taxes on a household worker who was an illegal immigrant. In late January 1993, Wood met with White House staffers and President Clinton before word leaked to the press that Wood was going to become the nation's attorney general. Two days after the initial news reports, however, she removed her name from consideration.
The imbroglio revolved around what Wood did and did not tell the White House about her own domestic worker. Wood had hired a babysitter from Trinidad in March 1986, before hiring illegal aliens was outlawed. Wood stated that she paid all social security taxes on the earnings of the worker, who eventually became a legal U.S. resident. In contrast to Baird, Wood adhered to the letter of the law. Yet the Clinton brass felt that middle America and Congress would not understand the distinction. Worse, unnamed administration officials accused Wood of failing to disclose all the particulars of her hire during the interview process. In a letter to The New York TimesWood countered, "...because I had complied with all laws, I did not view this as a 'Zoe Baird problem.'"
The full story may never be known; Wood declines further comment. But this is consistent with her avoidance of unnecessary publicity. She explains, "Judges should occupy themselves with judging and not with speaking out in the political realm." In any case, her silence has been a rare example of restraint by a spurned political figure.
Wood also will not comment on her past judicial decisions, but some general strains of her philosophy are evident. As a trailblazer for women in the law, it seems no accident that Wood's most notable decisions show her as a foe of arbitrary discrimination. In 1988, she rejected a government decision that denied refugee status to a soldier from Ghana accused of treason. Wood wrote, "A coup may be the only means by which political change can be effected." In 1989, she upheld the right of a 76-year-old New York judge to seek reappointment even though he had passed the passed the state's mandatory retirement age. And earlier this year, she ordered that shareholders could force a company to fund a proxy vote on corporate policy toward employment discrimination. This last decision is a good example of a case that distinguishes Wood from other Reagan-era laissez-faire appointees. Observes Lloyd Constantine, a friend of Wood's and now a visiting professor at Fordham Law School, "Kimba feels that social or civil liberties issues cannot be resolved through free markets."
Like those of any good judge, Wood's stances on issues of discrimination are not reflexive and depend on the merits of the case. An example is her controversial decision last year to overturn a jury verdict. The case involved a female employee who claimed she was fired from the New York-based investment firm Goldman Sachs because she was a woman. After the jury ruled in her favor, Wood set aside the verdict, claiming there was no evidence of discrimination. Such a decision is rare, but it illustrated Wood's adherence to the letter of the law.
The number of female judges is rising, according to another prominent lawyer, Susan Thomases '65, who was a distinguished alumni speaker on campus this spring. As of the end of April, Thomases points out, Clinton had nominated 29 women, compared with four each by Reagan and Bush, and two by Carter at the same time in their presidencies. As the percentage of women on the bench increases, courtroom observers are watching to see if a distinct female voice emerges in decisions. Some believe that female judges are more apt to rule in favor of women in child-support and divorce cases and tend to favor victims of discrimination. Wood is part of the camp that believes wisdom has no gender. "There are hypotheses that women sympathesize with minorities and are more prone to seek compromise," says Wood. "I don't know whether that is the case. Many men are wonderful compromisers and wonderful settlement judges, too."
However that question eventually shakes out, people will be paying attention to Wood as one of the country's most notable female jurists. Her intelligently-reasoned decisions bear witness to a judge, who, despite her own wishes, has nonetheless become something of a celebrity.
Copyright 1994, Connecticut College Magazine. All rights reserved.