Rising Star

by David J. Garrow

  Someone proposed that liberal Harvard professor Kathleen Sullivan be paired with Fried in a duo of comments, and Parry agreed to put that before the Supreme Court Office. That pairing would then be submitted to all the 2L editors for approval, but Berenson was furious at what he thought was an abuse of process. “There was no real precedent for the rest of the body second-guessing the major decisions that the offices made,” but even adding Sullivan was not enough to satisfy critics’ complaints. With thirty-seven voters, excluding Obama, eligible to cast paper ballots, an inconclusive tally resulted when six 2Ls did not participate. “The result was 18–13 against the proposal,” but due to “a presumption in favor of approving the proposal of the Supreme Court Office,” any nonvoters were “counted as yes votes,” resulting in a 19–18 outcome, a summary memo reported.

  John Parry strongly recommended reopening the matter and inviting all interested 2L editors to offer suggestions. “We have to avoid blowing this into a controversy that will split both the office and the Review beyond working ability,” he told Berenson. Parry believed the balloting reflected “the uninspiring combination of Fried and Sullivan, and the question of voice inclusion,” and presciently observed, “I think that a different pairing of Fried with a person of color would satisfy the vast majority of 2Ls” and perhaps everyone.

  The infuriated Berenson was also worried because the controversy was delaying the issuance of invitations to Fried and whomever else. Deeply frustrated, Berenson told Parry “to do whatever Jean & Christine want. The Teenage Mutant Ninja Turtles could write for all I care.” On May 4, a resolution was reached to pair Charles Fried with Patricia Williams, an African American associate professor at the University of Wisconsin. Parry thought that Barack had remained “a bit detached” from the entire controversy, and both Fried and Williams accepted the invitations.

  Like Parry, the graduating 3Ls likewise perceived a relative detachment by Obama during his first three months. Unlike some editors, he did not spend the better part of each weekday at Gannett House, and more people remember him out in front, smoking, because it was not allowed inside. “I thought he was incredibly cool,” Radhika Rao recalled. “He had a charisma to him,” and she remembered chatting with him and Rob Fisher on Gannett House’s porch. “He was often with Rob,” and he would use his small top-floor office mostly in the evenings. “I remember Barack being a late-night person,” Barbara Schneider recalled. “His feet would be up on the desk and he’d be smoking,” irrespective of Cambridge’s city ordinance. Debbie Brake thought Barack seemed “super-cool, super-collected. He had the aura of leadership about him.” Brian Bertha believed Barack had “an unusual level of gravitas” and seemed “very skilled at forging a consensus.” The day-to-day running of the Law Review was mainly in managing editor Tom Perrelli’s hands, and he was “a nice person and a hard worker,” Christine Lee recalled. “No one else had that combination.”

  Erwin Griswold responded to Obama’s letter about the May issue by commending the Michael McConnell article as “very good” but, at 111 pages, “much too long.” Griswold praised the annual, five-student “Devo” on “Medical Technology and the Law” as “one of the best Developments in my memory,” but when Griswold saw the June issue, his normal dyspepsia returned. He liked neither the sole article nor an underwhelming five-contributor “Colloquy” responding to Randall Kennedy’s article a year earlier. “Sometimes I wonder how much of it is actually read and useful,” Griswold wrote Obama, “and whether they will be remembered even five years from now.” Indeed, the most striking item in the issue was an eight-page critique by Radhika Rao of former federal appellate judge Robert H. Bork’s jeremiad The Tempting of America, which savaged the U.S. Senate’s 1987 rejection of his nomination to the U.S. Supreme Court. Obama’s “P-read” on Rao’s essay had been “cursory,” and rightly so, because a quarter century later it would remain a powerful and insightful appraisal. Noting the book’s “sanctimonious anger,” Rao chastised Bork for his “refusal to confront the political choices implicit in originalism” and emphasized how “Bork’s doctrine of selective stare decisis . . . marks the same kind of departure from objectivism that he decries in other contexts.” Her final line—“In a world where objectivity and neutrality are dead, the faith that Bork professes turns out to be hollow”—was followed by a footnote that represented a coda to the year’s entire eight issues: “Having begun with an essay heralding the rebirth of constitutional science”—Larry Tribe’s physics essay—“this volume of the Harvard Law Review ends, perhaps too appropriately, with a Book Note reaffirming the death of constitutional theology.” Erwin Griswold, no raving liberal, wrote to Obama that Rao’s piece was “fair and persuasive,” and two decades later Ken Mack remembered it as “the best thing in the volume.”39

  Before heading to Chicago for the summer, Barack had to confront his end-of-semester exams. Taxation was a looming problem. Dan Rabinovitz remembered that “Barack was so busy with Law Review he maybe went to one or two classes.” Dan knew Barack “was incredibly thoughtful about how he spent his time,” but this seemed risky, especially for someone who, like Rob Fisher, wanted to graduate magna cum laude. Rabinovitz had attended every class and “took copious notes . . . so at the end of the semester, I made a copy of my notes, and I gave them to Barack.” Alvin Warren’s three-hour in-class, open-book exam posed four questions, and Rabinovitz, sitting near Obama, had written perhaps one-third of an exam booklet when he saw that Obama, even with his tiny handwriting, had already filled almost an entire one. Dan appreciated that Barack was “extraordinarily intellectually gifted,” but only after grades were issued did that fully sink in. “He got an A in the class,” Rabinovitz learned. “I did not get an A in the class.”

  Gerry Frug’s all-day Local Government Law take-home posed just one question, with answers limited to two thousand words. Frug’s question was utterly remarkable because it cited classroom comments made by one particular student: Barack Obama. Frug began: “In an article of mine entitled ‘The City as a Legal Concept,’ I argued as follows,” with six paragraphs reprinted. “In a recent article, Professor Richard Briffault has provided a very different picture” regarding suburbs, and Frug provided four paragraphs. “Write an essay critically discussing these contrasting views of local government law,” and analyze “a specific issue that will illuminate the extent of city and suburban power in America.” Students could choose most anything, “or you could discuss the following issue, one that was raised in a class discussion in March. In March, a member of the class”—Barack—“argued that there were two fundamentally different strategies that African-American communities now living in large American cities could adopt to better their social and economic conditions. On the one hand, he argued, members of the community could stay in the city, organize together to gain political control of the city government and, once this was achieved, mobilize city power and resources to begin to combat problems such as unemployment, crime, homelessness, and drug addiction. On the other hand, he said, community members could abandon the inner city, integrate suburbs and other prosperous areas, and thereby destroy the kind of inner-city environment that, some contend, fosters the kind of problems mentioned above. Given the arguments advanced by Professor Briffault and me, what impact does local government law have on these alternative strategies?”

  Frug’s question told the students to discuss as many specific doctrines of local government law as possible, but anyone with experience in higher education can appreciate how astonishing it was for a student taking an exam to see his own classroom comments comprising a significant portion of the test. Frug recalled two decades later, “Never before and never again have I ever referred to a student in an exam. It was a real statement . . . of his impact on the course, that I did this.” Rob Fisher had prepared carefully for the exam, and followed his and Barack’s “rule that you find the three intellectual tricks the professor likes” and include them in your answer. “I also wrote the word ‘folks�
�� a lot, and I got a very high grade,” Rob explained. He got an A, as did Barack.

  Before driving west to Chicago, Barack stopped in Manhattan to meet Jane Dystel, the literary agent who had telephoned him three months earlier. “We talked. He was attractive, charismatic, passionate about public service. I told him there was story interest” on the part of publishers, “but, despite liking the idea, he said, ‘I can’t even begin to write this until I graduate law school,’” Dystel later recounted. Barack’s recollection was that Dystel “really didn’t know anything about me” apart from his presidency of the Review. She hoped he could write “a memoir” that would be “a feel-good story” about his success at Harvard, but Barack downplayed the significance of his law school experience. “My life’s a little more complicated than maybe what you would anticipate,” he told her, but he agreed to draft a descriptive proposal over the summer. It would address “the theme that I’m interested in, which really doesn’t have too much to do with Harvard” and instead involved family and race. Dystel came away from their talk thinking that Barack “suggested three parts: childhood, law school, and the search for his father,” but Barack had little interest in writing about law school.40

  The view from the Chicago Skyway in early June 1990 had changed little from five years earlier, but now Barack knew the landscape that whizzed past him. What had changed this time was that his destination was not Hyde Park, but Michelle Robinson’s family home at 7436 South Euclid Avenue in South Shore, where he would spend the summer with her and her parents. Fraser Robinson was still two months shy of his fifty-fifth birthday, but the ravages of multiple sclerosis left him dependent on two arm-fitted crutches at home and at work. Barack had envied the Robinson family’s stability and Chicago roots since first meeting them a year earlier, and he envied too that Michelle’s father was “a great family man,” in such huge contrast to his own father.

  With Michelle at Sidley, where she was now overseeing the summer associate program, and Barack’s summer job at Hopkins & Sutter less than a block away, each weekday the young couple headed downtown to the Loop. Just as he had the previous summer, Barack also regularly drove down to 95th Street to see Jeremiah Wright. “When I went back during the summers, I’d go back and visit Trinity. The Rev and I, my pastor, became very close,” Barack later explained. Another day in mid-June, he drove out to suburban Oak Brook to speak as one of “McDonald’s Black History Makers of Tomorrow” at the food chain’s Hamburger University, along with twenty-five-year-old Jesse Jackson Jr., who was about to begin law school at the University of Illinois. Just a few days later, Michelle was devastated when her closest friend from Princeton, Suzanne “Suzy” Alele, died of cancer in suburban Washington at the age of twenty-six.

  Like Sidley, Hopkins & Sutter was “very highly regarded,” Sidley’s Geraldine Alexis explained, and along with Sidley, it was one of Chicago’s top two large firms when it came to minority hiring. Hopkins had two African American partners, both 1979 Harvard Law School graduates: Elvin Charity, who had interviewed Barack six months earlier, and Albert Maule, who would die of cancer just five years later at age forty. Obama’s Review presidency meant he was now “a big deal” and indeed “a celebrity” at both Hopkins and Sidley, where he would return for a brief one- or two-week stint later that summer.

  Sidley’s top partners were still exceptionally interested in luring him to the firm once he finished Harvard, and they strongly advised him to pursue a Supreme Court clerkship. But to both Newton Minow and Gerry Alexis, just as to Sheryll Cashin previously, Obama said, “I just don’t have the time to do that.” Alexis told him he was “crazy” not to clerk, and “we went back and forth on that” before Alexis gave up. “I wanted him to take the right career steps,” but in their conversations that summer Barack “made it clear he wanted to go into politics” and may have mentioned “becoming governor of Illinois.” Someone teased him that he was “not going to become a governor in Illinois unless you get an apostrophe after the O,” for an Irish O’Bama, but Alexis expressed dismay that someone with such illustrious career possibilities in law would instead choose politics. “He just looked me straight in the eye, and he said, ‘Well, Gerry, somebody has to do it.’ . . . I was very impressed by that.”

  Early that summer the progressive Chicago Reporter conducted a survey of minority employment at the city’s private law firms. Sidley and Hopkins & Sutter fared the best, and the Reporter interviewed Obama. He stressed the particular difficulties black students faced in a profession where many young lawyers were unhappy. “Because they don’t have the support networks or because their abilities may be questioned due to racism,” African Americans often feel “under the gun,” but he also said, “It’s a great time to be a young black law school graduate—if you’re from Harvard and in the top quarter of your class. But the point is that there are a lot of talented young minorities who may not have been able to go to the top schools . . . due to financial constraints.” Firms needed to look beyond “the most prestigious schools” and realize that students of color with “the intelligence and the energy to do terrific work” could be found at state law schools too. The Chicago Tribune reported on the survey results, and Obama made the same point there. “I think there are a lot of excellent minority law students who have families that can’t incur a $25,000 debt for a law school education. So they don’t go to nationally ranked schools.”

  At least once that summer, Barack did a training for Jerry Kellman in Gary, and Kellman met Michelle for the first time when he stopped by the Robinsons’ home in South Shore. Some time that summer, Obama also had lunch with David Brint, a young housing developer who had called him at the Law Review after reading one of the profiles in which Obama said he wanted to pursue community development work in Chicago. Brint was one of three officers at Rezmar Inc., a year-old low-income housing development company, and at a second meeting, Brint introduced Barack to his two colleagues, Dan Mahru and Antoin “Tony” Rezko.

  Rezko had an interesting life story. Born in Aleppo, Syria, in 1955, he had arrived in Chicago at age nineteen to study at the Illinois Institute of Technology. Even before completing a business management degree, Rezko began working for Crucial Concessions, a food service company owned by J. Herbert Muhammad, whose late father Elijah had been head of the Nation of Islam and who was well known as boxing champion Muhammad Ali’s manager. In 1985 Crucial made Rezko general manager of the newly reopened South Shore Cultural Center (SSCC), a former country club that the Chicago Park District (CPD) had acquired a decade earlier.

  A profile in the Hyde Park Herald described Rezko as “a gentle-mannered, soft-spoken gentleman” who “always is on hand to supply the menu and beverage lists” and who stressed that 60 percent of SSCC’s employees and two-thirds of its patrons were black. The Herald soon questioned why a company with “no catering experience and no facilities to prepare or transport food” had won the food service contract at SSCC, and the CPD cited Herbert Muhammad’s “good name in the black community” as reason enough. Crucial and Rezko were actually subcontracting out all of the SSCC’s food service, and from 1987 through 1989, the Herald ran a trio of stories citing “frequent complaints about the service and quality of the food” as well as high prices. At SSCC, Rezko met Daniel Mahru, an attorney whose Automatic Ice company supplied both cubes and machines, and in 1989 they joined together to create Rezmar. Mahru saw Rezko as “a humble, hard-working immigrant success story,” as did Brint, and while Rezko’s connections would help Rezmar, nothing came of their summer 1990 conversation with Obama.

  The Harvard 1Ls who wanted to join the Law Review had spent the first week of June completing the five-day writing competition. Treasurer Lisa Hay had organized the exercise, and its substantive portion asked contestants to analyze Austin v. Michigan Chamber of Commerce, in which the Supreme Court had upheld the constitutionality of a state statute prohibiting the use of company funds in political campaigns. “Corporate wealth can unfairly influence elections
,” Justice Thurgood Marshall had written on behalf of a six-justice majority including conservative chief justice William H. Rehnquist. At Gannett House, Susan Higgins had mailed out the 286 entries to 3L editors scattered around the country. As the 2Ls’ scores came back, Higgins also obtained the GPAs that would be used to determine which additional members of the 1991 class would be invited to join the Review as grade-ons.

  By mid-July, Obama was telephoning his high-achieving classmates. Several accepted right away, but almost everyone had to weigh the loss of three weeks’ worth of summer pay. “I debated not doing it,” Darin McAtee recalled before accepting. But Leonard Feldman, whom Barack knew from 1L Section III together, politely refused the costly honor.

  But the writing competition results for the 1992 class produced a troubling disparity: women as a group had scored significantly below men. While the thirty-six new 2L editors would include five African Americans, just as in the 1991 class, the gender breakdown showed twenty-seven men and only nine women. There was nothing that Lisa and Barack could do, and on July 23 three dozen invitation letters from Obama went out in the mail.

  Almost every recipient had already received a phone call from Barack or a 3L editor they knew. Obama’s letter warned that the Review required “generally 30 to 40 hours a week” and would be “a big part of your life over the next two years.” He acknowledged the “financial sacrifices” imposed by “coming back early” but claimed that “Review work is more creative, and often more challenging, than second and third year classes.” He optimistically cited “the camaraderie that you develop with your classmates” and advertised Gannett House as “a friendly on-campus ‘base’ where you can relax, read newspapers, get breakfast.” Work on the upcoming November Supreme Court issue, which the Supreme Court Office editors had already outlined, would be “particularly interesting” given the Court’s 1989–90 decisions. New Review staffers “must arrive in Cambridge” by midday Wednesday, August 16, and should call Barack at either Sidley or the Robinsons’ home number immediately if they had not already conveyed their acceptance.