Rising Star

by David J. Garrow

  In retrospect, Barack believed his election to the HLR presidency was as much the result of his performance in Section III as anything else. “I had established a presence in the classroom and in other activities during my first year,” he recounted years later, incorrectly citing “actively campaigning on issues of diversity in faculty hiring” as among his 1L efforts. He also badly misremembered his less than six months on the Review preceding the election, imagining that “by the time I was elected . . . the peers who voted for me had worked with me in close quarters for over a year.”

  One later commentator correctly noted that “Obama’s fame began precisely with this achievement.” That was well understood by his Harvard contemporaries, and the slew of media requests made that clear to everyone at the Review. A Philadelphia Inquirer profile had Barack claiming, “I know Philly, and I like it,” but he emphasized his resolve to return to Chicago and neighborhoods like Roseland. “There is a lot of talent there, and a lot of energy,” but “also a lot of sadness, a lot of young people whose dreams get crushed.” He cited the importance of major corporations “building plants in these areas,” but said, “I don’t think I’ll return to the Developing Communities Project.” Instead “I will try to get connected with some city-wide agency. I would also like to get involved in the political scene in Chicago.” As an activist, or as a candidate? “I don’t know. Either one, I guess. It all depends on where I can do the most good,” just as Rob had said.28

  Before the week was out, Barack realized he had acquired a new, almost full-time job on top of a demanding course load. The first two Review tasks, scheduled for the next Sunday, involved only the 2L editors: the election of a new masthead and office chairs, and the completion of the transition to 2L management by re-adopting or altering a number of governing policies inherited from the now-sidelined 3Ls. Early on, following traditional form, Barack asked runner-up David Goldberg if he wanted to be treasurer, the ostensible number-two post. Goldberg quickly said no, as he knew from experience that he wanted to be in the Articles Office, which chose the Review’s premier content. Semifinalist Lisa Hay did want to be treasurer. The most crucial job was managing editor, because the ME oversaw the distribution of everyone’s work and made certain that issues went to press in time for delivery by the tenth day of the issue’s month. Meeting that date was Erwin Griswold’s top fixation. Exiting ME Scott Collins believed strongly that the 2L with the best skills to take on that demanding role was semifinalist Tom Perrelli, who was willing to accept.

  Office cochairs were chosen by a simple vote of all 2Ls, with some positions contested and some not. The process was more complicated for the masthead’s supervising editors and executive editors. For SEs, as for treasurer and ME, 2L votes would be tallied, but the president could choose from among the top finishers. EE contenders had taken a Bluebook test, graded by the departing 3L EEs, but again the president was not bound by the rank order of the results. Executive editor was an impressive title to have on a résumé, but the actual work was essentially copyediting, with Bluebook proficiency being an EE’s stock-in-trade. Indeed, a new, updated fifteenth edition of The Bluebook needed to be produced. SEs, meanwhile, edited their fellow students’ work and worked more closely with their classmates than anyone on the Review.

  On Sunday morning before the masthead and office elections began, a number of Review editors watched television as major news broke in South Africa. Barack, knowing that a difficult day lay ahead, began his introductory remarks with “Let’s try and keep this in perspective. Nelson Mandela was freed from prison, and what we’re doing is not that important.” Tallies to name Lisa Hay as treasurer and Tom Perrelli as ME proceeded without difficulty. The SE contenders presented Barack with a list that included presidential third-place finisher Jean Manas plus four hardworking women: Julie Cohen, Anne Toker, Rebecca Haile, and Christine Lee. Barack had asked Julie to take the EE test, but she had demurred, since “I really didn’t want to do it.” Yet the EE test results, as Barack had feared, presented a political problem because the top three finishers, Jim Chen, Adam Charnes, and Amy Kett, were all conservatives.

  The office cochair results created no controversy: David Goldberg and Jackie Scott for Articles, conservative Brad Berenson and liberal John Parry for Supreme Court, Julius Genachowski and Jenny Collins for Notes, liberal Susan Freiwald and conservative Mike Guzman for Book Reviews and Commentaries, and Mike Cohen and Marisa Chun for Devo. Chun was also fourth on the EE list, and Barack had to decide if he would follow rank-order results and have three prominent conservatives in the coveted EE positions, as well as decide whom to choose from among the SE contenders. Manas’s third-place presidential finish created a certain presumption, but Anne Toker, unlike Christine Lee and Julie Cohen, had not run for president, as masthead aspirants had traditionally done. Christine, well known for her hard work as well as for her outspoken racial views, had also actively supported Obama’s candidacy. “I really, really thought I had it in the bag” for SE, Christine remembered, thus becoming a black female member of the masthead, like Crystal Nix a year earlier.

  Before Barack would announce those choices, the 2L editors had to affirm or amend multiple policies. Some were trivial, but still generated debate, such as what time the lavish spread of free bagels and muffins should arrive. But the most explosive issue was the Review’s use of affirmative action in selecting new editors. Conservative leader Brad Berenson described it as “the deepest, darkest secret of the Review: how affirmative action was done, to what extent,” and each year only the president and two editors actually knew the truth. Amy Kett asked if the existing policy included women—it did not, because women in previous classes had opposed their inclusion—and 2L Dave Nahmias proposed expanding the categories to include “other people who’ve been disadvantaged,” whether natives of Appalachia or Vietnamese refugees. Nahmias was perceived as a conservative, so the self-identified progressives opposed his idea. When Jim Chen moved to end the policy completely, conservative and liberal editors alike found Chen’s deeply personal attack on affirmative action “eloquent,” “impassioned,” and “quite memorable.” Some recalled Chen citing common ethnic epithets and warning that “This is what affirmative action does—it calls people something.” Progressive Susan Freiwald remembered feeling torn as Chen pleaded that “I don’t want to be stigmatized, and you don’t know how many people are stigmatizing me.” But even hard-core conservatives like Adam Charnes realized that when someone was “saying we should abolish affirmative action, other people can construe that as an accusation that they shouldn’t be sitting in the room.”

  Tom Perrelli recalled that Barack “was leading the discussion, but he wasn’t trying to impose his own perspective.” Then Shaun Martin, an impish, unpredictable character whom classmates viewed as a highly eccentric genius, quasi-seriously followed up on Chen’s motion to abolish affirmative action by moving to abolish the Review itself. Even that managed to engender debate, but in the end, the 2Ls voted to make no changes in the president’s discretionary power to use affirmative action when the next class of editors was selected.

  Following the meeting, Barack mulled the difficult choices regarding the EE and SE positions. Tom Krause and the other 3L EEs told him that they believed the president should abide by the test results and not displace Chen or any of the other conservative top trio. “It was a tough decision for Barack to ratify,” Krause recalled, yet the EEs, even more than the SEs, “had virtually no substantive input” into the Review’s content, Amy Kett realized, only final stylistic authority over everything. The conservatives were elated when Obama ratified the exam outcome. “There was a strong push for Barack to use his power to go down the list,” Brad Berenson explained, and “the fact that he didn’t spoke volumes to the conservatives on the Review, earned him a tremendous amount of goodwill and respect, because it was seen as a loud and clear indication that no matter what else happened, the best interests of the Law Review were going to be the guiding princi
ple.”

  Traditionally there had been only two SEs, but Barack made two unexpected moves: first he named three SEs, and then he appointed an additional masthead member to oversee the Bluebook revision. But his choices—and whom he passed over—created an immediate firestorm. To the three SE positions he named Jean Manas, Julie Cohen, and Anne Toker, and as Bluebook editor, he named Ken Mack, his best friend among the 2L editors and fellow African American. When Obama provided the names to the Harvard Law Record, his appeared first, followed by Lisa Hay and Tom Perrelli. Then Mack’s name was fourth, above the SEs and EEs. The ten-person masthead thus included two black men, four white women, and Asian American Jim Chen. There were no African American women, even though Rebecca Haile and Christine Lee had been among the top nine contenders for the presidency. Both women were shattered, and “Christine felt extremely betrayed,” Tom Krause knew.

  Barack’s siding with the conservatives on one major decision, and slighting black women on a second, while elevating Ken Mack, left even Barack embarrassed. African American 3L Jennifer Borum remembered Barack telling her “‘I guess you’re mad at me too,’” and she told him he had violated the Review’s own traditions. Mack knew that there was “a lot of recrimination and criticism,” and Lee’s anger was visceral and verbal. She believed that “the quality of my work” merited an SE post, and “I felt betrayed, because I had worked so hard.” Looking back, she realized that she “saw everything in terms of race,” “didn’t play well with others,” and thus “had not earned it as far as the quality of my diplomacy with the other students.” Her relationships with some colleagues would have required channeling “certain people’s work to me and other people’s work” to other SEs, and that alone was “a valid reason to not give me the position.” Tom Krause, with whom Christine had become involved during their work on the Anthony Cook article, believed that her contemporaneous fury at Obama “was semi-justified” because he had failed badly at “rewarding loyalty.” But Krause also thought that given the politics of the Review, Barack’s treatment of Lee “as a pragmatic matter makes perfect sense.”29

  The week after Obama’s election, Peter Yu wrote Erwin Griswold with the news. In his previous letter, Yu had described the Review as “a scholarly (rather than professional) publication,” while also telling Griswold that the Review’s royalty income from burgeoning full-text data services like Lexis was now more than $100,000 a year. February’s lead article had created a “huge fight” at the Review because of author Katharine Bartlett’s insistence on using first as well as last names of authors whom she cited, in violation of a Bluebook rule that barred the former. The Articles Office had sided with Bartlett, but the EEs vetoed that, and in protest Bartlett’s article featured a memorable initial footnote denouncing the ruling. “I had wanted to humanize and particularize the authors whose ideas I used in this Article by giving them first as well as last names. Unfortunately, the editors . . . insisted upon adhering to the ‘time-honored’ Bluebook convention. . . . In these rules, I see hierarchy, rigidity, and depersonalization, of the not altogether neutral variety. First names have been one dignified way in which women could distinguish themselves from their fathers and husbands. I apologize to the authors whose identities have been obscured in the apparently higher goals of Bluebook orthodoxy.”

  Gordon Whitman, who had sided with Bartlett, recalled the Review’s “obsession about form over substance” and how often the editors’ behavior toward authors was “like the kindergartners running the preschool.” A similar controversy had occurred with a book review in the March issue, which was just going to press, the last number for which the departing 3Ls bore “complete responsibility.” Floyd Abrams, the country’s most distinguished First Amendment litigator, had been asked to review A Worthy Tradition: Freedom of Speech in America, a posthumously published book written by the well-known scholar Harry Kalven Jr. Abrams had been astonished when the Review’s EEs told him The Bluebook prohibited the capitalization of “first amendment.” Like Bartlett, Abrams voiced his unhappiness in a first-page footnote, “objecting to the transformation in law reviews of what I understand to be the First Amendment to the ‘first amendment.’” Abrams cited another prominent scholar’s call that “Those who believe in freedom of speech should begin by rejecting the tyranny of the Uniform System of Citation.” Or, “to put it another way, since Kalven wrote about the First Amendment, why can’t I?”

  Along with Bartlett, the February issue had also featured a twenty-five-page commentary by Kenneth Lasson that mocked the oversized role that law reviews had in American legal education. Lasson cited a number of recent articles in major law reviews which had hilariously impenetrable titles, such as “Epistemological Foundations and Meta-Hermeneutic Methods: The Search for a Theoretical Justification of the Coercive Force of Legal Interpretation.” Editor Brad Wiegmann, a 2L, remembered Lasson’s essay as “fabulous.” In a similar voice, the Review’s own March issue led off with Anthony Cook’s “Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr.” An unhappy Erwin Griswold wrote Yu, “I wonder how many of your readers will actually ever read the leading article,” but he did think Floyd Abrams’s review was “very good.”30

  The Monday when the media descended on Barack was also the start of the first full week of spring semester classes. Barack and Rob had signed up for a significantly heavier course load than they had had in the fall. They were familiar with the subject matters in Larry Tribe’s seminar and Chris Edley’s small class, which featured once-a-week sessions with a guest speaker, ranging from liberal Massachusetts congressman Barney Frank to conservative law professor Charles Fried, who was just back after serving as President Reagan’s solicitor general. But their three large courses—Taxation, Local Government Law, and Jurisprudence—were going to be demanding, especially for someone who had just taken on a burdensome new management position. Tax—i.e., federal income tax law—met four hours per week and was straightforward if highly technical. Alvin Warren was “a great Socratic professor,” Obama’s fellow Section III veteran David Smail believed, and Rob Fisher agreed, remembering Warren as “really excellent.”

  Gerry Frug’s Local Government Law class used his 1,005-page casebook, which offered a wide array of multidisciplinary readings. Frug’s unifying theme was “The City and Democratic Theory,” and it examined the early origins of cities as legal entities. Frug’s underlying emphasis was on “the relative desirability of centralization and decentralization” in democratic government, and he made no secret of his strong belief that “decentralization, participatory democracy, and civic transformation” go hand in hand. Barack was once again the most talkative student in the class. Law Review colleague John Parry recalled some classes as being “almost these conversations” between Frug and Barack, and Frug remembered how he and Obama “had a lot of one-on-one discussions,” often stemming from Barack’s organizing experience, which was “a perspective that I hadn’t otherwise thought about.” Their exchanges played a “really prominent role” in class, and indeed were “the major thing that happened in the course.”

  Barack and Rob also took Jurisprudence with Roberto Mangabeira Unger, a highly abstract thinker who rarely drew explicit links between his classroom lectures and the assigned readings. Unger viewed law as “the detailed expression of an institutionalized form of social life,” and his course focused on competing theories of law. In the introduction to his assigned readings, he warned that “These materials have an oblique relation to the argument of the course. My plan will not track closely the sequence of the readings, nor shall I discuss them in detail. Study of them is nonetheless important.” Radhika Rao, a 3L on the Law Review, found Jurisprudence to be “a weird class, because Unger would just speak in these incredibly long sentences and you didn’t understand what he was saying. He was impenetrable.” Law Review 2L Susan Freiwald found it challenging too, but she could see how Rob and Barack were “just so into it.” Everyone thought Rob was
“a great guy,” but everyone was bemused by the intellectual intensity that he and Barack brought to so many of their classes. Rob thought Unger “was the most brilliant (and deepest) lecturer at HLS by far,” even if many students often could not fathom what was being discussed.

  On February 15, Rob and Barack presented their critique of Larry Tribe’s constitutional paradigm at the third weekly meeting of Tribe’s fifteen-student seminar. A bevy of Law Review 3Ls were in it too—Crystal Nix, Andy Schapiro, and Jack Chorowsky—plus Tribe’s top 3L protégé, Michael Dorf. As with Unger, Tribe’s post-Newtonian analysis was not always clear. Peter Dolotta, a 3L, remembers “Tribe throwing stuff up against the wall and then seeing if it stuck.” Often it did not. “We were generally pretty skeptical,” Peter explains, and Rob Fisher concurs. “My sense of what he was talking about was that it wasn’t real coherent,” though it was still “a fun seminar.” Jack Chorowsky agrees. “It was a funky class. Frankly I’m not sure that anybody knew exactly what it was about, but it was fun to sit around and talk Con Law with Larry Tribe. That was the point.”

  Rob took the lead in making his and Barack’s joint presentation. The headings on his outline captured its flavor: “Heuristic Analysis and the Constitution” . . . “The Constitution as Framework for Social Discovery” . . . “Heuristics, the Enlightenment and the Constitution Versus Positivism and the Administrative State.” When Rob finished, Barack spoke up, asking the seminar “My most important question to you: What’s interesting here and what’s boring and why?” Rob jotted notes as Barack continued. “How can a govt. of limited powers possibly succeed in modern vision?” The class discussed whether “In the law, do the arguments drive the words or do the words drive the arguments?” The conversation was not entirely disconnected from constitutional analysis, for as Rob noted on the back of their outline, Justice Oliver Wendell Holmes Jr. had made a similar point in 1918: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”