Rising Star

by David J. Garrow

  Mid-April was an important time in the Law Review’s annual calendar. All 1Ls interested in the end-of-semester writing competition were invited one evening to an “ice cream social and general information meeting,” where the Review’s selection process was explained. Among those attending was Lee Hwang, a 1989 magna cum laude graduate of Dartmouth, who remembered the “captivating presence” of the Review’s “already famous” president. In subsequent weeks, there were three follow-up receptions—for women, African Americans, and political conservatives—hosted by respective editors.

  Two nights after the initial 1L session, the Review’s 103rd annual banquet took place at the Harvard Club in downtown Boston. Each year featured an eminent keynote speaker, and the 3Ls had secured famous Harvard economist John Kenneth Galbraith. But the real highlight was the distribution of the Harvard Law Revue, or “review-ee,” an acerbic and often stiletto-sharp compendium of jokes and insults presented in the form of a shortened issue of the Review. Editors and authors were targeted, and everyone found the twenty-to-thirty-page printed booklet on their chairs when the evening commenced.

  The 1990 edition, written in significant part by Articles Office cochair Andy Schapiro, skewered disappointing or argumentative authors while humorously commending or embarrassing almost all student editors. A faux contents page had “Vermin Chemerinsky” “Wrapping Up a Five-Minute Foreword,” Fran Olsen required “Editing Miss Crazy,” and “Anthony Kook, ‘A Backhand Slice at Critical Legal Studies: Billie Jean King’s Philosophy of Love’” spoke for itself. Editors believed to have done good work on difficult pieces—Dan Bromberg, Jorge Ramírez, and Christine Lee for “COOKing Her Goose”—were commended, while others were teased: Crystal Nix for working all night, Brad Berenson for being “Right of Rehnquist,” David Goldberg for his addiction to Diet Pepsi.

  Local celebrities were also targeted. “Laurence DiaTribe & Mike Dork, ‘Constitutionally Spaced Out: What Law Professors Can Steal from High School Science Textbooks’” teased Tribe’s November comment for being “Lost in Constitutional Space.” Obama received his share: “Barack Obama, The Semicolon Goes Where?, 666 Bluebooking’s Not Important for Celebrities L. J.” preceded a footnote invoking freedom of speech: “Even incredibly annoying speech and speech habits are protected by this guarantee. See, e.g., Obama, Why I Have a Constitutional Right to Say the Word ‘Folks’ in Every Sentence.”

  Three pages labeled “Obamania” were devoted to Barack, with his night-before change of heart highlighted by “see Obama, I’m Not Going to Run for President, 103 About Face L. Rev.” Some jokes were well targeted: “As you folks all know, I am extraordinarily mature” was followed first by a reference to Chicago—“There I discovered I was black, and I have remained so ever since”—and then an election jab: “some folks may think I’m crazy for appointing a bunch of conservatives to the masthead, and others may think I’ve been co-opted.” His rationale appeared too: “Obama, But They Did the Best on the Test, in Democracy and Distrust (3d irasc. eds. 1990).”

  Peter Yu was indicted for using “unintelligible jargon” and calling people “jerkface,” while Barack was teased with “Obama, Hey, How’s It Going, Folks?” with “folks” meaning “you still don’t have to learn their names.” He was complimented for “a series of articulate and startlingly mature interviews,” while Christine Lee was zinged with “see Lee, Bearing My Fangs, L.A. Times.” University of Chicago Law School professor Michael W. McConnell, author of the forthcoming May issue’s lead article on the “Free Exercise of Religion,” was criticized for “Freely Exercising His Vacation,” and other authors were mocked for either insistently rejecting or passively accepting all editorial changes. The Revue concluded with a back page “Doers’ Profile” of Barack, modeled on a well-known whiskey ad. Barack’s age was given as “extraordinarily mature” and his latest accomplishment was “Deflecting Persistent Questioning About Ring on Left Hand” that he had worn for years. “Quote: ‘Engage, empower, smoke Marlboro.’ Profile: Shy, awkward, insecure. Not interested in politics.”

  At the banquet, Peter Yu and Barack offered remarks before turning the podium over to Professor Galbraith. Barack’s comments echoed his speech at the BLSA event six weeks earlier. He again said his election was not simply about him, and he mentioned sitting on Gannett House’s porch with a friend who was the son of a white southern sharecropper—Rob Fisher. Jorge Ramírez, a 3L, was astonished. “My jaw dropped on the ground—the guy spoke extemporaneously, absolutely no notes.” Treasurer Lisa Hay felt it was “an incredible, moving speech,” “just the most moving speech I’d heard from any speaker at that age.” Lisa’s boyfriend and husband-to-be Scott Smith was also there, and Lisa remembered that “after Barack’s done, he kicks me under the table and says in a loud whisper, ‘It’s a good thing you didn’t win!’” Lisa watched as the black waitstaff were “slowly picking things up so that they could listen” to Obama, and how they joined in the applause at the end, with one waiter going forward to shake his hand.37

  While Barack was juggling his Review job and his course load, some students refocused on the fall’s political battles over faculty diversity and Dean Clark’s disregard for public interest lawyering. In February, when the school announced that a young African American male would join the faculty in 1991 after completing a clerkship with Justice Thurgood Marshall, Obama told the Crimson it was an “encouraging sign,” but BLSA president Tynia Richard pointed out that there were still “no black female professors.” The public interest controversy was equally intense, with Clark facing what the Crimson called “heated questioning” at an early-March forum with several hundred law students.

  In early April, eighty protesters twice occupied the dean’s office in overnight sit-ins, and as student energies swelled, Derrick Bell said he was stepping down from active teaching until a black woman was named to the school’s permanent faculty. A front-page New York Times story reported Bell’s move on the same day that student protest leaders scheduled a noontime rally outside the Hark, where Bell would publicly announce his departure. Some participants noted “how not involved” the law school’s best-known minority student was, and Mark Kozlowski perceived “a certain degree of bitterness amongst black students who said Barack was not sufficiently black.” Ken Mack recalled that there was “huge criticism” of Barack for his absence from protests, but Ken understood Barack’s concern that protests over faculty diversity could “actually end up harming the people we’re trying to help” because professors might begrudge the calls for minority hiring.

  Only in retrospect did protest leaders like 2L Linda Singer realize that “we were asking the law school to change something that they would never concede in the face of student demands.” Kozlowski believed Barack’s nonparticipation “quite frankly took not a small amount of courage at the time.” But with Bell’s announcement drawing national news coverage, protest leaders asked Cassandra Butts to help recruit Obama. Linda Singer and her colleagues wanted both “the power of his speaking” and “the symbolism of his role.” Barack offered “our little movement a star quality and a credibility that we didn’t have,” and BLSA president Tynia Richard agreed that they needed “the highest-profile guy to participate.” The diversity coalition included the law school’s nascent gay students group, and gay 2L Morris Ratner agreed with Singer about “the star power” Barack could bring. “He became more than an individual, he became a symbol, the minute he became president of the Harvard Law Review.”

  Butts was successful, and as hundreds of law students gathered outside the Hark a little before noon on April 24, Paolo Di Rosa, who knew Obama from Section III, found himself standing next to Barack. In earlier times Obama and Di Rosa, whose dad had been tortured by Paraguayan dictator Alfredo Stroessner’s regime before going into exile, had “compared notes about our respective fathers,” but on this day, when Di Rosa turned and said he hadn’t seen Obama in the gym lately, Barack “didn’t really even respond.” That was unlike him, but Di
Rosa realized “he was just in a zone,” and only when the proceedings got under way did Di Rosa see that Obama was going to speak and had been “preparing the speech in his head.”

  A variety of protest signs dotted the crowd of seven hundred: “Where Are Our Tenured Black Women Professors?” “Is the United States 95% White and 91% Male? HLS Faculty Is.” “Come Out of the Ivory Tower.” “Harvard Law School on Strike for Diversity.” Derrick Bell arrived with BLSA president Tynia Richard and was greeted with light applause. As TV cameras recorded the scene, Obama, wearing a light blue dress shirt and tan pants, stepped forward to introduce Bell. He recalled the scene almost two years earlier, when “the black law students had organized an orientation for the first year students, and one of the persons who spoke at that orientation was Professor Bell, and I remember him sauntering up to the front and not giving us a lecture but engaging us in a conversation, and speaking the truth.” Barack went on to say he had carried Bell’s words “with me ever since. Now how did this one man do all this? How’s he accomplished all this? He hasn’t done it simply by his good looks and easy charm, although he has both in ample measure.” Richard and others laughed at Obama’s poetic praise. “He hasn’t done it simply because of the excellence of his scholarship, although his scholarship has opened up new vistas and new horizons, and changed the standards of what legal writing is about.” Applause began. “Open up your hearts and your minds to the words of Professor Derrick Bell.”

  Bell stepped forward and the two men hugged. Years later, Bell recalled, “I was surprised he was there, I was surprised that he spoke,” because Obama had had almost no contact with Bell during his two years at Harvard. Bell began his own prepared remarks with a self-deprecating compliment. “It may be significant that the student stands here and delivers a mighty address without notes, while the teacher”—Bell paused as laughter built. Listeners agreed with Bell’s description. “It was a spectacular speech,” Paolo Di Rosa recalled, and made with “no notes whatsoever.” Like Bell, Law Review 3L Micki Chen was “so struck that the student was so much more eloquent” than a noted professor speaking from a text. “That day is really seared in my mind.”

  Bell said he was “removing myself from the payroll as a sacrificial, financial fast” since “I cannot continue to urge students to take risks for what they believe if I do not practice my own precepts.” He noted that the law school had 107 black women students, yet not one African American female on the permanent faculty. Bell also declared that “the ends of diversity are not served by persons who look black and think white,” a remark that offended many listeners. Nathan Diament, Obama’s occasional basketball teammate, remembered “that was the moment when I said to myself, ‘This guy just lost me.’” Most of the crowd believed the insult was aimed at younger black law professor Randall Kennedy, who a year earlier had published a powerful, well-received critique of race-centered legal arguments including Bell’s recent work. Later that day a “visibly upset” Kennedy confronted Bell, who denied intending a personal insult. In the Crimson, a 3L said that Bell’s comment “represents intolerance in its purest form. It establishes an orthodoxy of thought, and Blacks must embrace it or else face excommunication for their ‘white’ views.” As the rally wound down, a letter from Dean Clark was read expressing respect for Bell but saying his departure was not “an appropriate or effective way to further the goal of increasing the number of minorities and women on the faculty.” The Boston Globe reported that “students hissed as the remarks were read,” and after the rally 150 students marched through the law school’s campus “yelling ‘Wake up, wake up, wake up, Dean Clark, wake up.’”

  The next morning Bell and Tynia Richard appeared on CBS TV’s national news show, and Richard spoke of her experience attending Harvard as a black woman. “I had six professors in my first year, all of whom were white and all of whom were male.” As the year progressed, “none of the issues of race and gender or sexual orientation were being addressed in the classroom.” She poignantly added that “I take out $20,000 a year in loans. They make five times” that amount or more.

  But Obama’s tender introduction of Bell marked the end of his involvement in the law school’s student protests. Two weeks later, when Jesse Jackson visited the law school to speak at a far smaller rally and meet briefly with a reluctant Clark, Barack was not visible in any of the television footage. As Rob Fisher knew, Barack had “just zero interest” in campus disputes. “He was interested in real politics with real people.”38

  There was no let up in intensity at the Law Review as the spring semester neared its end on May 7. The June issue, the last of the academic year, was still in process, but a trio of decisions had to be made regarding content for the 1990–91 year. Each November’s Supreme Court issue featured both the prestigious foreword plus a faculty case comment, with the Articles Office taking the lead in selecting the former and the Supreme Court Office the latter. In addition, several highly problematic article submissions by untenured Harvard younger faculty were being worked on, with 2L Michael Weinberger having spent much of the spring dealing with a manuscript from African American professor David Wilkins. Some months earlier the Review had lost out on a submission “we loved” from Robin West, a 1979 graduate of the University of Maryland Law School who had joined the faculty there in 1986 after several years at the Cleveland-Marshall College of Law. The University of Chicago Law Review had beaten Harvard to the punch, and West’s highly regarded “Jurisprudence and Gender” had been their lead article, a signal honor, particularly for someone whose academic pedigree came from midrank public institutions rather than Harvard, Yale, or Chicago. New Articles cochair David Goldberg had rued that loss, and was now pressing for West to author the foreword for the upcoming November issue. Only once before had a woman, Harvard’s own Martha Minow, authored a foreword, and with some trepidation the 2L editors ratified Goldberg’s choice.

  West received an unexpected phone call from Obama extending the Review’s offer, but West’s “first reaction was ‘Nope, can’t do it,’” because she had just had her first child. Barack was nonplussed. “People don’t really turn this down,” he told West, and gradually he convinced her to accept, telling her she could write anything she wanted. Review tradition meant that Obama, as president, would be her primary editor. West was intrigued by Václav Havel, the new president of Czechoslovakia. “I wanted to write about authenticity and personal responsibility for authenticity,” and Obama was entirely encouraging. West would have to submit her complete manuscript no later than August, but the upcoming volume’s most prominent commitment was now nailed down.

  Far more difficult were manuscripts that had been submitted by two of the law school’s most popular young teachers, David Charny as well as Wilkins. David Goldberg’s 1L section had had both professors, and Charny in particular had impressed Goldberg as a “brilliant, brilliant guy” and “just an amazing teacher.” Neither manuscript was anywhere near as impressive as their authors, yet Review editors knew that refusal to publish either young scholar’s article could prove fatal to their hopes for promotion and tenure. “The articles process was supposed to be a blind process,” 3L Articles cochair Gordon Whitman had told Goldberg and other 2Ls, but Whitman fully appreciated how “the tension on Law Review is always what comes through the back door and what comes through the front door.” Goldberg and the 2Ls thus inherited “a significant issue” concerning the two “really problematic” Wilkins and Charny manuscripts. “The question was, ‘Is there a special rule for Harvard faculty?,’” i.e., a lower bar than external submissions faced. Goldberg confronted the issue straightforwardly, and “that’s one of the few things I ever really talked about with Barack in a formal” way. “Based on what they were sending over to us, if they’d sent that out it wouldn’t have been accepted anywhere remotely comparable and it would have been really bad for them” both, Goldberg explained. “I felt we had to temper our principles for a little humanity,” especially because “both
of them were people who I liked and respected.”

  Obama did not object to Goldberg’s stance, but 2L Scott Siff took the lead in arguing that a double standard favoring Harvard professors over everyone else was untenable. Wilkins’s manuscript was the more problematic of the two, for “If this had come in over the transom, it wouldn’t be one that would meet our normal standards,” Siff recalled, and indeed “it wasn’t one that was even ‘Well, it’s kind of close to our normal standards.’” In addition, “it was a particularly charged thing because of his being African American,” and everyone on the Review agreed on the “need for more diversity on the faculty.” Supreme Court Office cochair John Parry remembered that “you could hear shouting through the door” during “impassioned” Articles Office meetings, but over the course of the spring, a consensus emerged that for Harvard junior faculty submissions, the question would be “Does it embarrass the Law Review?” That was “the standard we agreed on for faculty tenure pieces and nothing else,” Goldberg explained. “Don’t embarrass the Review.”

  One week before spring classes ended, a controversy far more vitriolic exploded when a number of left-wing editors objected to the Supreme Court Office’s decision to invite former solicitor general Charles Fried to write the November issue’s faculty case comment. Office cochair Brad Berenson had championed Fried’s selection, and both well-liked liberal cochair John Parry plus other editors in the office had willingly agreed. But Jean Manas, Christine Lee, and Christine’s closest friend on the Review, Mike Froman, with support from David Goldberg, angrily protested giving this honored role to someone who had been the Reagan administration’s top Supreme Court advocate. Parry was summoned to Obama’s small office on the top floor of Gannett House, where he was confronted by Froman and Manas. “They were mad,” and “I was definitely blamed: ‘How could you let this happen?’” Parry remembered. “Mike in particular seemed really mad,” and “there was pressure brought to bear.” Barack’s role was “relatively passive,” but “I certainly felt like I was on the spot.”