Rising Star

by David J. Garrow

  Almost the first day he returned to Cambridge, Barack wrote to Sheila Jager, who two months earlier had returned to the U.S. from South Korea. Barack had written to Sheila regularly throughout her time abroad, once sending her a short story he had written and another time “an annotated copy of Tocqueville’s Democracy in America.” By the time she returned, Sheila had told Barack she had applied for and won a Harvard teaching fellowship in Asian Studies with the eminent scholar Ezra Vogel. Before the end of January, Sheila would be moving to Cambridge and renting an apartment at 5 Crawford Street. She recalled that “the job at Harvard had nothing to do with Barack being there, per se, although I can’t rule out that I unconsciously applied to Harvard to be near him.” But she also explained, “Then again, I wasn’t going to turn down a job there simply because he was there,” and during their time apart, she had begun a relationship with someone else.

  In his January 2 letter, Barack told Sheila about Michelle and her Chicago roots at some length, but as he had in his 1989 letters, he also wrote about “his turmoil about our relationship” and his thoughts about “who he was and what he wanted to become.” Sheila said that Barack described “his thoughts about his love for me, marriage, his ‘destiny,’ his race/identity, and how all this affected his relationship” with Michelle. But once Sheila arrived in Cambridge in early 1990, “we continued to see each other occasionally,” despite the deepening of Barack’s relationship with Michelle. Years later Barack would write that 1989–90 “was a difficult, transitional period in my life.” Indeed it was, for it was a period characterized throughout by two powerful, overlapping relationships.26

  For the 2 and 3Ls’ three-week January winter term, Barack and Rob, along with Section III friends Gina Torielli and Jennifer Radding, took Evidence for three hours each weekday morning with Professor Charles R. Nesson, one of the law school’s best-known faculty members. Problems, Cases, and Materials on Evidence, by Nesson and Eric Green, was the text for a course that introduced “what the trial system is about.” Nesson’s open-book exam took place on January 26, by which time Barack and Rob were already into their work for Tribe’s upcoming seminar. They also jointly selected four additional courses for the spring semester that would begin January 31: Taxation, which was strongly recommended for all 2Ls, with Professor Alvin Warren; Local Government Law, with Professor Gerald Frug; Jurisprudence, with the world-renowned Roberto Mangabeira Unger; and Law and Political Economy, with Chris Edley, whom they had enjoyed so much in the fall.

  By early January, the Law Review’s 2L editors were focusing on the upcoming election of a new president, which would take place on the first Sunday in February, and then the subsequent selection of a new masthead and office cochairs. In the eyes of their colleagues, some 2L editors, like Julius Genachowski, a 1985 magna cum laude graduate of Columbia, had long seemed like all-but-certain presidential candidates. Others who had logged long hours of scut work at Gannett House, like David Goldberg and Christine Lee, were presumed to be natural contenders. But 2Ls who thought Peter Yu’s style was far from ideal pondered who would be the Review’s best leader, irrespective of who might be the smartest editor. In early January, Susan Freiwald, who had been so deeply offended by Yu’s behavior toward Fran Olsen, asked Barack to have lunch with her at Au Bon Pain in Harvard Square. “I told him that I thought he ought to run for president” and offered to encourage others to support him if he did. Barack replied that “he was going to think about it,” and he raised the question with David Rosenberg. “You’re an idiot. It’s a waste of time,” Rosenberg remembered telling him, explaining that being president would preclude him from writing a note, which anyone headed toward academia should do. Neither of Barack’s two closest non-Review friends, Rob and Cassandra, thought he had any interest in running for the position, nor did Michelle Robinson and her family.

  In the previous year’s election, all four African American editors—Crystal Nix, Frank Cooper, Jennifer Borum, and Ira Daves—spurred by earlier BLSA achievements, had tried to win top positions on the Review. Nix’s selection as a supervising editor, a top-five post, and Cooper’s role cochairing the Supreme Court office, left them strongly committed to see that success continue. Robert Granfield, the sociologist who had perceptively interviewed so many Harvard law students, was aware of a painful downside of the Review’s publicly acknowledged affirmative action selection policy. A prior 3L African American editor had told Granfield that the policy created “a real stigma” that left black editors’ status open to question. “Before law school, I achieved on my own abilities. On Law Review, I don’t feel I get respect. I find myself working very hard and getting no respect.” Ken Mack agreed. “Being on the Law Review was the most race-conscious experience of my life,” he recounted. “Many of the white editors were, consciously or unconsciously, distrustful of the intellectual capacities of African American editors or authors.”

  Attaining leadership posts on the Review disproved any such derogatory attitudes, but Nix’s SE position was the highest post a black editor had yet won. No African American had ever been president or treasurer, and the informal rule was that anyone aspiring to a masthead position needed to compete for the presidency as a way of demonstrating the seriousness of their interest.

  Of the five African American 2Ls, Princeton graduate Monica Harris had spent little time in Gannett House, and young Christine Lee’s outspokenness counterbalanced her demonstrated work ethic. Quiet Ken Mack, whose magna cum laude undergraduate degree from Drexel University was in electrical engineering, seemed an unlikely fit, but both Obama and Rebecca Haile, an Ethiopian-born 1988 Williams College graduate whose family had been forced to flee their homeland when she was ten years old, were well liked among their 2L colleagues. Nix, Cooper, Borum, and Daves pressed Lee, Mack, Obama, and Haile to try for masthead posts, but Barack continued to exhibit disinterest until the eve of the deadline when presidential contenders needed to file a one-page statement of candidacy.

  That night the black HLR members and several African American 2L veterans of Section III gathered for dinner at Barack’s apartment. Nix, Cooper, Borum, and Daves came with an agenda, even if others present were unaware of it: to convince Obama to join Mack, Lee, and Haile in running for the presidency. Crystal Nix, a former New York Times reporter, who had known Michelle Robinson at Princeton, was the leader. She “was extremely active in encouraging him to do it,” Frank Cooper recalled. Jennifer Borum remembered “Barack sitting on the floor” as the conversation proceeded. Mack listened closely as the 3Ls stressed how there had never been an African American president of the Review, but they believed Barack could win.

  John “Vince” Eagan, an older, generally quiet Section III veteran, was also there that night. Eagan knew that Barack was “one of the smarter guys around,” but he was surprised by some of the books on Barack’s shelves because “he didn’t really come off as a leftist in any sense.” As the 3Ls talked about Obama’s chances, “I just said ‘I think you should kick that door in.’ That’s all I remember saying. It was just like a throwaway comment.” Jennifer Borum recalled that before the evening was over, Barack had changed his mind. “I remember him saying, ‘I think I’m going to throw my hat into the ring.’” Of the black 2Ls, “he was the last one” to agree that all four should run. A few weeks later, Barack said that Vince Eagan’s comment had been decisive. “I said I was not planning to run, and he said ‘Yes you are, because that is a door that needs to be kicked down, and you can take it down.’” Shortly thereafter, Barack again recalled Eagan’s comment: “‘There’s a door to kick down,’ the friend argued, ‘and you’re in a position to kick it down.’”

  An astonishing nineteen 2Ls—half of the 1991 class of editors—filed to run for president, and one evening at the end of January, a candidates’ forum took place in a tiered classroom. The contestants each made a personal statement, and then they responded, one by one, to questions from other 2Ls and interested 3Ls. One asked what leadership skills they had,
another inquired which Supreme Court justice they would most like to clerk for. Sarah Eaton had started law school with the now-3L class and made law review before taking a year off, so her 2L classmates that fall were all new faces. She, along with Section III veteran Lisa Hay and Devo office 2L Julie Cohen, had agreed to run after noting the absence of interested women. Eaton barely knew Obama, but that evening “he was amazingly impressive,” she recalled. “He just blew everyone away.” Likewise, prior to the forum, Barack “was somebody that frankly I hadn’t really noticed,” 3L Jane Catler explained. “But on that day, wow,” she remembered. “He just leapt out of the pack. He was charismatic.”

  Then a question was posed about whether affirmative action should remain a part of the Review’s selection process. Jim Chen, the most outspoken of the 2L conservatives and a summa cum laude graduate of Emory University whose family had immigrated to the U.S. from Taiwan almost empty-handed, forcefully advocated abolishing it. As some remember, Barack clearly supported affirmative action, but he also said he understood and appreciated the principled arguments against it and suggested that the policy be revisited in full after the new officers were selected. Ken Mack remembered that “that really made an impression on a lot of people,” and most especially “a huge impression on the conservatives” who comprised one-fifth or more of the 2L editors. Fellow candidate Julius Genachowski recalled that Barack “was really unique in being able to have other people believe that he understood their point of view.” Brad Berenson, a 1986 summa cum laude Yale graduate who was the informal leader of the 2L conservatives but not a presidential contender, had a further perspective. “Barack told at least me, and maybe others, that he had declined to identify his race on his Law Review application,” in what Berenson viewed “as a way of signaling, ‘Hey, I get why you might be opposed to affirmative action and why you might not even think it’s in the best interests of its supposed beneficiaries.’”

  Prior to the election on Sunday, February 4, Barack did very little presidential campaigning: only 2L editor Kevin Downey recalled Barack directly asking for his support. “I was a little surprised,” because during the fall Kevin, like others, had sensed no interest in it from the “very mature” and “somewhat remote” Barack. “I can clearly remember him saying to me that he thought he’d like to be the president of the Law Review but if he didn’t get that, he wasn’t going to do anything else.” Instead of politicking, just three days before election, Barack and Rob gave Laurence Tribe a powerful critique of Tribe’s latest manuscript using physics for constitutional analysis. “We basically completely trashed his ideas,” Rob recalled. Tribe’s response indicated what a remarkably unique relationship had developed between the eminent professor and his two older but nonetheless precocious second-year students. “Oh my gosh,” Tribe wrote to them. “Your memo pretty much sweeps me off my feet. The trick will be to land on some place better than my back. I will count on the two of you for help. Would you consider a coauthored essay, perhaps with our names listed alphabetically? Who knows where it should appear but it deserves to be written.” Tribe signed his name simply “Larry.”

  The presidential election proceedings commenced at 8:30 A.M. on February 4, in the Ropes-Gray Room in Pound Hall. In keeping with another Law Review tradition, the nineteen candidates were sequestered in the adjoining kitchen, where they prepared successive meals for the fifty-plus voters. Kevin Downey remembered his home phone ringing and managing editor Scott Collins telling him, “We really need your participation.” Another 2L, Michael Weinberger, who was already there, recalled his wife contacting him to say that their car had been stolen, but he stayed for the election.

  Many 2Ls were surprised to see small boxes containing each candidate’s pool and editing work there in case anyone wanted to examine it. The 3Ls who had worked with each candidate offered introductory reports about them before the floor was opened for comments and questions. With nineteen contenders to consider, the entire morning was consumed by those discussions, during which informal lobbying took place, especially by 3Ls who favored a particular candidate. Who would win the presidency was not the only consideration, because the discussions of the candidates that day would redound a week later when the rest of the masthead was selected and office cochairs were elected.

  From the semiautonomous Devo office, 3L cochairs Debbie Brake and Audrey Wang sought to promote their 2Ls, particularly Julie Cohen and also Rebecca Haile and Jennifer Collins. Articles Office cochairs Andy Schapiro and Gordon Whitman were energetic proponents of David Goldberg, who was a top-notch contender. Frank Cooper recalls that he, Crystal Nix, and Jennifer Borum were “hyper-focused on Barack. . . . We all encouraged other African American editors to run because we felt like we needed that representation” on the masthead, “but the focus and the pressure was on getting Barack to win.” One by one, Crystal and Frank wooed fellow 3Ls to support Barack. “We felt like we had enough of a coalition that we had a chance to win. No one knew if we could actually pull it off, but we had a chance to win,” Cooper explains. “People were conscious of the fact that he would become the first African American president of the Harvard Law Review. No one really said it” and “for the most part it wasn’t talked about,” he adds. “We were also very conscious that we needed a group of people who were not African American on the Law Review to be vocal about it” and “we all kind of worked several people to see who would be open to it. We knew there were some people who were clearly in line with that right away” and who became “part of our coalition,” particularly 3Ls Radhika Rao, Dan Bromberg, and Micki Chen.

  The descriptions and ensuing discussions of all nineteen candidates lasted until noon. Few participants recalled the initial voting process in precisely the same way, but with so many candidates, the first round of paper ballots called for voters to select five candidates. As a time-consuming tally took place, the atmosphere was decidedly relaxed, with some editors playing Scrabble, others reading the Sunday New York Times, and a trio of women calmly knitting. Once the 3L officers had cumulated the votes, there was a clear and substantial gap between the top numbers and the lower half. When no dissent was registered, ten of the nineteen were told that their cooking duties were over, and they were now voters rather than contenders as the second round of discussions commenced.

  Three of the four African American candidates—Barack, Rebecca Haile, and Christine Lee—made the cut. So did two other women, Lisa Hay and conservative favorite Amy Folsom Kett, a 1984 Oberlin graduate who had gotten a Harvard music M.A. before law school. Until then, “I was pretty apolitical” and “pretty middle of the road,” Kett said, but the law school’s intense conflicts left her feeling like a conservative. The ten 2Ls who had been eliminated uneasily joined the larger group, and their presence swung the group away from the almost two-to-one imbalance in favor of the 3L class that had characterized the first round. Even with the slate of candidates cut in half, voters could still cast their ballots for multiple contenders, and the afternoon proceeded slowly as the nine remaining contenders were discussed and debated.

  Shortly before dinnertime, ballots were again distributed, and after a lengthy tally, the individual totals showed a clear gap separating a top six from a lower trio. Tom Perrelli, Christine Lee, and Mike Froman, a 1985 Princeton graduate who had earned an Oxford doctorate before law school, left the kitchen and became voters. Of the six remaining semifinalists, three were women: Amy Kett, Lisa Hay, and Rebecca Haile, and two, Haile and Barack, were African Americans. With the field so reduced, the tenor of some comments shifted. Michael Cohen, a 2L, remembered that “at first people would speak for folks,” but as the day progressed “people would start speaking against someone.” Without naming anyone specifically, Mike Froman said the president should possess the best analytical skills and intellectual ability, rather than being selected because of “his charm and his poise.” Listeners thought Froman was speaking on behalf of David Goldberg, but they understood whom Froman was putting down. In contrast,
Christine Lee, who had the most negative perspective on Obama’s editing contributions, put those feelings aside in the interest of African American advancement. Christine became “a very big and vocal backer of Barack,” 3L executive editor Tom Krause recalled.

  Amy Kett’s image as a conservative and presumed opponent of affirmative action attracted criticism, and after the third round of balloting, she and Lisa Hay exited the competition. This left Obama, Rebecca Haile, David Goldberg, and Jean Manas, a 1987 summa cum laude Princeton graduate and joint degree student who had begun law school with the 3L class. Haile was pleasant and mild-mannered, and generated no intense feelings, but Manas, who had grown up overseas, was seen as an outspoken leftist and was much better known among 3Ls than by his 2L classmates. The perception that Manas was the 3Ls’ favorite, coupled with the conservatives’ belief that “he was just basically the Antichrist,” as Brad Berenson recalled, was a decisive combination. With everyone still able to cast multiple votes, and with a good many of David Goldberg’s most enthusiastic supporters also positively inclined toward Obama, first Haile and then Manas were eliminated.

  After 9:00 P.M. the field was reduced to David Goldberg and Obama, and for the first time all day, the now seventy-plus voters each had a single vote. Frank Amanat, a 2L, remembered that “the feeling of drama in the room increased, in a way that I think was palpable to most of the people in the room.” Frank Cooper recalled that when it got to the final two “it was protracted. There were many, many discussions. . . . Everyone in the room, at some point, weighed in and spoke.” For many of them, the issue was what the president should be, above and beyond who. In the 1989 election, tradition suggested that the president should be the best possible editor, someone who could earn the respect of the professorial authors whose work he would “P-read,” as well as HLR colleagues. John Parry, a 2L, knew that David Goldberg was “definitely seen as one of the intellectuals on the Law Review,” as well as being “well liked.” David Blank, the most outspokenly conservative 3L, championed the traditional view. “Blank was a strong proponent for Goldberg,” Frank Cooper remembered, and “it got heated” regarding Obama “because some people felt like he did not represent the traditional view of Harvard Law Review: academic rigor . . . that he was almost too worldly.” Some argued that a president with “a principled approach to the law” was more important than someone with “experience outside of academia.” But Barack’s performance in Section III, and in Tribe’s Con Law, left no doubt at all that he was “strong academically” as well as older and more mature.