by Ted Cruz
Upon entering Harvard Law School, David and I shared a two-bedroom suite at Walter Hastings Hall. The redbrick building, built in 1888, presented a picturesque law school setting—it had bay windows, wood-paneled rooms, and built-in fireplaces. Everything about it suggested history.
My first class in law school was on the subject of property law, and was taught by Professor Charles Donahue. He was a liberal academic straight out of central casting—he had a long beard and wore Birkenstocks. He looked something like a lumberjack who’d found his way to Berkeley. And he was, in fact, a wonderful teacher.
On the first day of class, he walked to the blackboard and wrote a long Latin phrase in chalk:
Sibilisi ergo, fortibuses in ero. Nobili demis trux. Sewatis enim? Cowsendux.
Then he turned back to a room filled with law students anxious to impress and please their professor on the first day of classes.
“Does anyone know what this phrase means?” he asked. “Can anyone guess?”
I certainly didn’t. In fact, the phrase meant nothing. It was gibberish—but if you read it aloud in English it was “See, Billy, see ’er go. Forty buses in a row. No Billy, dem is trucks. See what is in ’em? Cows and ducks.” Just because something looks like it has a profound meaning doesn’t mean it does. From that, Professor Donohue offered us his first lesson: “Don’t check your common sense at the door.”
Probably the most well-known professor I encountered was Alan Dershowitz. Dershowitz is an extraordinarily accomplished criminal law professor and attorney who has represented such famous figures as Michael Milken, Patty Hearst, Leona Helmsley, and Mike Tyson. In 1990 he had been portrayed by actor Ron Silver in the feature film Reversal of Fortune, about his successful efforts to overturn the conviction of British socialite Claus von Bülow for the attempted murder of his wife in Newport, Rhode Island.
I was at Harvard when Dershowitz joined the so-called dream team in the defense of the accused double murderer O. J. Simpson. The trial did not reflect, probably by anyone’s standard, how a respectful, professional legal proceeding should transpire. It was a tawdry media circus that exploited, for the media’s entertainment, the brutal murders of two innocent human beings. I do, however, recall Dershowitz assigning us to read an article about the case that he had written for Penthouse magazine, which, as it happened, was not typical required reading at one of the nation’s most respected law schools. But the media-savvy Dershowitz pointed out, “You know what? The readership of Penthouse is five million people. If I’m trying to get something in front of would-be jurors, that’s a pretty good outlet in which to do it.”
Along with his brilliant mind, “Dersh” had the heart of an advocate. He was in his mid-fifties when we met, with wavy dark hair and inquisitive eyes behind wire-rimmed glasses. He loved argument and debate, and unlike many Ivy League academics I’ve encountered, he respected people with differing points of view. He hated nothing more than liberals who reflexively agreed with him but couldn’t explain why. To Dersh, the worst thing a student could say to back up his point was “Well, I just feel that . . .”
Dershowitz pounced on such words. “Oh, you feel, do you?!” he’d ask. “You’re emoting?! I thought you were in law school.” He wanted logic, argument, substance.
In most of my classes I consciously tried to be relatively quiet. I had no desire to be a “gunner”—one of those students who shot his hands up constantly in class and fell in love with the sound of his own voice. To try to prevent that, I deliberately rationed myself to talking just once a week in my classes. That practice in itself turned out to be an interesting exercise, with a positive effect. Restricting what you say forces you to be selective, which tends to make your comments smarter and your points sharper.
But I broke my self-discipline—repeatedly—in Dershowitz’s criminal law class. He frequently harangued the opinions of conservative justices on the Supreme Court—with his pointed verbal jibes aimed particularly at two of the justices whom I admired most, Antonin Scalia and Clarence Thomas. He did this so often that it ticked me off and invariably prompted me to raise my hand: “Now, hold on a second, professor.”
In fact, many times our arguments would continue after class, back in his office, where we’d battle back and forth for hours on end.
Dersh genuinely cared about his students. Every year, after our first-semester grades came out, Dershowitz gave the first-year students, or 1Ls, a pep talk. “Every student here was a top student in elementary school, a top student in high school, and a top student in college,” he’d begin. Then he’d add, with just a slight grin, “Yet even at Harvard, fifty percent of our students . . . end up in the bottom half of the class.”
I had no intention of being among that group. Wanting to be a Supreme Court clerk, I had researched the qualifications I needed. Most obvious, I needed to have stellar grades. One of the first things I did was form a study group, which consisted of three students: me, my roommate David, and Jeff Hinck, an economics major from Northwestern University whose native brilliance and midwestern common sense made him one of my closest friends in law school. Our study group met in our dorm room several times a week throughout the first year of law school.
I undertook my mission with considerable focus. At the time, I was dating a woman who was getting her economics Ph.D. from MIT. Whenever I was studying at her apartment, I would bring six different colors of highlighters to annotate my casebooks. Seeing me with a handful of highlighters, she and her friends could only laugh. And when you are being mocked by MIT graduate students for geeking out, you really have a problem.
I did take time for at least one diversion, one that inadvertently taught me a valuable lesson. I joined the drama society and was cast as Revered Paris in The Crucible, Arthur Miller’s powerful play about the Salem witch trials. The first night of the play went very well and to celebrate we had a raucous—very raucous—cast party. Being a stupid twenty-two-year-old, I had way too much to drink, not giving a thought to the repercussions. During the next day’s performance, I was still sick—so horribly sick that, in the middle of the performance, I walked off the stage and curled into a ball behind it. My startled fellow cast members were left to ad-lib the rest of the scene without me. As it happens, my sad display was captured on tape, a copy of which found its way into the hands of a reporter from the Boston Globe. As I told the Globe reporter who asked me about this years later, young people are not known for their wisdom or their discretion, and I was no exception.
While I was learning life lessons in law school, I also tried out for the law review. Law reviews are student-edited legal journals, and just about every Supreme Court clerk has been on law review. At Harvard, people still talked about the first black president of that prestigious legal journal, named Barack Obama, who’d graduated just one year before I arrived at law school. To get on the law review, I participated in what amounted to an eight-day legal writing and editing competition. I filled one of forty slots that year—thirty-two of which were based on grades or writing. The remaining eight were based on affirmative action.
In my second year, I decided to run for president of the law review. I wanted the position, of course, because it provided as close to a lock on a Supreme Court clerkship as one might get. I soon learned that I had zero chance of winning.
Election of the law review president was a ruthless process, one worthy of study by Machiavelli. The election was not necessarily for the brightest among us, or the most accomplished, or the most articulate. None of us wanted someone like that getting the job and thus increasing his or her odds of getting a Supreme Court clerkship at our expense. Rather, the way you got elected was to demonstrate that you posed as little threat to other law review colleagues as possible. Those without any interest in a clerkship or those certain to get one anyway were thus immediate front-runners.
You could not be outspoken. Eleven people ran for the position that year—and those of us who were the most opinionated were quickly winnowed out
. I was among them. As a child of someone who fled Cuba, I was not amused by the trendy Marxist philosophy espoused by some of my colleagues in the editors’ lounge. I also found myself in heated exchanges over the law review’s affirmative action policy, with which I strongly disagreed.
Earlier that year, a group of conservatives on the law review had decided to challenge the affirmative action policy. I wasn’t terribly in favor of doing so—I could count the votes, and the liberals had an easy majority—but the conservatives went forward anyway. All eighty student editors gathered in a classroom for a robust debate, and initially I stayed quiet. Then one fellow turned to all of us and said, “If we abolish affirmative action, the Harvard Law Review will be nothing but rich white men.”
This was said with total sincerity, and it is sadly a view shared by many well-meaning liberals who think they are doing the right thing. But it also proved in a single sentence what was wrong with affirmative action.
Finally, I raised my hand. “You know what,” I began, “that last comment perfectly embodies how insidious affirmative action is.” I pointed out that the comment, on its face, implied that not a single person in the room who was not an Anglo white male deserved to be there. That we couldn’t make it on merit, that we couldn’t rise to the top without the help of our betters, fueled by their liberal guilt.
The comment was even more revealing, I observed, because at the time the law review did not have affirmative action for women; the affirmative action policy was purely on racial and ethnic lines. And yet this supercilious liberal had suggested that no women would make the law review if selections were based purely on merit.* What nonsense.
The argument was heated and personal. And then the votes came down to preserve the affirmative action policy, just as was apparent at the outset.
Likewise, I quickly lost the election for president of the law review. Later that evening, I was instead elected to be one of four “primary editors,” essentially the lead student editors for academic articles. But even if I had had the opportunity to do it over again, to be noncontroversial and universally amiable, I couldn’t have done it. Those qualities are simply not who I am.
When David Panton came back to the law school two years later—he had left Harvard to attend Oxford on a Rhodes Scholarship—I helped with his successful campaign for the law review presidency.
“Say nothing controversial on any topic,” I advised him. “Go out of your way to be charming and nonthreatening to every person there.” This, I knew, would be easy for my friend. He also made it clear to his law review colleagues that he was not interested in a Supreme Court clerkship. He wanted to go into business in Jamaica. When David was elected as the second black president of the Harvard Law Review, he received a congratulatory call from the first: Barack Obama.
During a summer job at a law firm, I met a lawyer who had clerked for Chief Justice William Rehnquist. He told me that even if I had high grades and made it onto law review, so would a lot of other students applying for the positions. I needed to realize that I was dealing with a small universe of people on the nation’s high court, he said. The justices were nine human beings making different hiring decisions based on their own personal criteria. They deferred heavily to the recommendations of people they personally trusted—such as professors at the law schools they respected. The justices would call them up and say things like, “I’ve got applications from a number of your top students. Which one should I really go with?” Those recommendations, the lawyer told me, were critical.
Thus many students who wanted clerkships took jobs as research assistants for connected law professors—those who tended to have relationships with various Supreme Court justices. The arrangement was understood by all the participants. The professors received relatively inexpensive legal work from bright students working their tails off. And the successful students would receive recommendations.
I worked for three different professors: David Shapiro, Daniel Meltzer, and Charles Fried. A brilliant man and expert on civil procedure, Shapiro was one of the few living summa cum laude graduates of Harvard Law School. Meltzer would eventually serve as deputy White House counsel under President Obama. Fried had been a solicitor general for Ronald Reagan and was the lone outspoken Republican on the Harvard faculty. I worked the most for Fried. One time, when I was helping him with a case he had before the Supreme Court, I put in 104 hours of work in a single week. As a result, I missed several of my classes that week, including his class. Fried gently admonished me, “Do I need to scale back your work so you can attend classes?” I made sure not to miss his class again.
As the most influential conservative at Harvard, Professor Fried’s recommendation carried a great deal of weight with justices like Scalia, Thomas, and Rehnquist. But when I prepared my application I also included a recommendation from someone on the opposite end of the spectrum—Alan Dershowitz.
It is a curious fact that most of the more conservative justices on the Court (Rehnquist, Scalia, Anthony Kennedy, O’Connor) tended to hire at least one liberal clerk. The liberals on the Court (John Paul Stevens, David Souter, Ruth Bader Ginsburg, Stephen Breyer) almost never hired a conservative. That explained a lot—contrary to the conventional wisdom, liberals in my experience tend to be far less open-minded and welcoming of diverse opinions than conservatives.
Once I had my recommendations in order, the next step toward the Court was trying to secure a one-year clerkship with a federal appellate judge.
In my perhaps excessively methodical way, I had mapped out a list of all the potential “feeder” judges to the Court—those appellate judges whose clerks tended to most frequently obtain clerkships on the U.S. Supreme Court. Because he had only been on the bench for three years, Michael Luttig hadn’t even appeared on my list. That was a significant omission on my part.
Luttig has had a remarkable legal career. He was Antonin Scalia’s very first law clerk when Scalia served on the U.S. Court of Appeals for the District of Columbia Circuit. Luttig worked in the Reagan White House, and he worked at the Supreme Court for four years as then–chief justice Warren Burger’s assistant and then law clerk. He and Burger were so close that he was executor of Burger’s will when he passed away. He knew everybody at the Court, and they trusted him.
Thus Luttig, in a short amount of time, had become one of the top feeder judges in the country. I learned that of the nine clerks he’d had since he took a seat on the bench, seven had gone on to clerk at the high court. I quickly faxed an application over to his office, interviewed with him in Richmond, and we hit it off immediately. He and I became very close; indeed, for many years he was like a father to me.
When you work for Michael Luttig, you put in eighteen- to twenty-hour days. He was a perfectionist, and especially hard on himself. He could go through fifty or sixty drafts of opinions, which he typed himself.
He took personal responsibility for training his clerks to be excellent lawyers. He knew every clerk well and cared about their personal and professional development. When he spoke on the phone with other judges, Luttig would often have us in the room with him so we could learn how jurists communicated with each other. He had set up three computer monitors on the table adjoining his desk so clerks could sit beside him and watch him draft opinions.
Luttig is an immensely meticulous man. He wrote with only a certain black felt-tip pen. A paper clip on material would have to have the bigger side on top of the page and the pointy end on the inside. If the paper clip wasn’t right, he’d send the document back.
He insisted that clerks offer clear recommendations on how he should rule on cases, especially the hard ones where a case could be made for either side. This was an important lesson: The time your judgment matters most is often when the decision is the hardest. And he used gentle ridicule to teach; so if a clerk said, “This case is a really close call, so it’s up to you,” he’d reply, “Oh, so you only have an opinion on the easy ones?” And so you’d go back and think harder about
the case.
He valued concision. Our bench memos—summaries of a case’s arguments, relevant case law, and recommendations—needed to be ten pages; if one was longer, he told us, we hadn’t really figured out what the case was about. And he had two favorite sayings. The first was somewhat facetious: “Never muck up a good story with the truth.” We laughed uproariously with Judge Luttig, a master storyteller. The second saying reflected great wisdom, especially in regards to the bloated federal government: “Never attribute to malice what can be explained with incompetence.”
Just weeks before I started my clerkship with Judge Luttig, I was working at the Houston law firm Baker Botts, fresh after graduating from law school. The most notable occurrence that summer of 1995 was that the Houston Rockets were going to the NBA Finals for the second year in a row. Major law firms love to wine and dine their summer associates in the hope that they will come to work for them after graduation, when the firms will work them around the clock. And it was my good fortune that Baker Botts was outside counsel for the Rockets, which meant they had an abundant supply of tickets to the playoffs.
I’d worked at Baker Botts in 1994 as well, and so was thrilled to get to attend game seven of the finals, in which we beat the New York Knicks to win the first ever major-league championship for my hometown. Sports can really bring people together, and the Bayou City rejoiced; I saw grown men in tears. People in business suits hugged homeless people in the streets.
That next year, the Rockets were again going to the finals. In fact they were headed to game four of the series, getting ready to sweep the Orlando Magic, and there was no place on earth I more wanted to be. Well, with one exception.
The day before the game, I received a phone call from the chambers of the Chief Justice of the United States.
