by David Garrow
Before returning to Cambridge, Barack and Michelle went to Washington, D.C., to attend his brother Roy Abon’go’s early-August wedding to his second wife, Sheree Aleta Wood. Roy’s split with his first African American wife, Mary K. Cole, had occurred several years ago, but only in mid-July had he finally filed for divorce, and a judgment would not actually be entered until well over a year after his second wedding. But this wedding was the greatest Obama family gathering ever. Kezia flew from Nairobi to Washington, and Ann Dunham arrived from Honolulu.
Ann had been hurt and dismayed when the profiles of Barack six months earlier had omitted her almost entirely. Ann’s relationship with Made Suarjana remained a bright spot in her life, but she still struggled with her UH dissertation. This Washington gathering was the first time Barack Obama Sr.’s first two wives had ever met, and Barack’s sister Auma, who attended as well, was overjoyed at how the two women immediately bonded. “They were sitting close together, holding each other’s hands, reliving the wonderful times they had spent with our father and assuring each other what a great man he had been,” Auma recounted. “Two women who came from completely different worlds clearly still loved him even after so many years.” Barack stood up as Roy’s best man at the ceremony, and then much of the extended family followed Ann and Maya to New York City for a celebration of Maya’s twentieth birthday.41
Back in Cambridge, Barack presided as the 3L editors welcomed the new 2L members to the Review. Work on the November Supreme Court issue was well under way, with most 3Ls assigned to author a case note on one or another of the 1989–90 rulings, but the May imbroglio over Charles Fried was far from forgotten. When Mike Froman and Christine Lee, two of the most vociferous complainants about Fried, arrived in Cambridge several days late, Supreme Court Office cochair Brad Berenson formally proposed that the Review remove or otherwise punish them. “Everyone else had had to leave their jobs early and come back and start working,” Berenson remembered, and only in highly unusual circumstances were exceptions allowed.
Jean Manas launched an angry rebuttal, and the newly arrived 2Ls watched as the 3Ls savaged and insulted each other. Carol Platt, the sole conservative among the nine 2L women, remembered “thinking ‘Okay, this is about them coming back late, but this is also about so much more . . . this is not really about this, it’s about things we don’t even know about.’” Lori-Christina Webb, a 1986 Bryn Mawr graduate who had taught for three years in the South Bronx before entering Harvard and becoming one of the five black 2Ls on the Review, immediately realized “there’s all these tensions.” Despite Obama’s sunny letter, she could see that the Review “was not a very welcoming environment,” and this leadoff debate set the tone. “The coming back late is not really about coming back late, but we don’t know what the subtext is because we’re brand new, but there’s always a subtext, and in the end the subtext is always political, it’s always us against them.” The tenor demonstrated that “there was a license to be disrespectful of one another . . . that was very shocking to me.”
Anger about the duo’s tardiness was not limited to the Review’s conservatives. Liberal Michael Cohen told Obama it was unfair, but Barack responded coolly, “Some people do the minimum, and others do more.” Cohen walked away thinking that Obama was “fifty years older than me in terms of his maturity and equanimity.” The meeting of all the editors to debate Berenson’s motion got quite heated, although Obama made no attempt to shut down the debate. Daniel Slifkin, a 3L, found it all “ridiculous,” especially when someone suggested fining Froman and Lee. “It all struck me as very, very silly,” as no one actually had any fining power, and Slifkin wondered why Obama let it go on well into the evening.
“We had no clue what was going on,” 2L Sean Lev recalled, and fellow new editor Charlie Robb quickly realized “how weirdly political and angry” the unpleasant exchanges were. “The meeting went on forever, and I had no idea where all this angry energy was coming from.” Robb was five years older than his classmates, and his friend Trent Norris, another new 2L, was also older, having taken three years off before law school. Norris recalled that Obama presided while “never disclosing his viewpoint on this—not a hint of it.” Robb also felt Obama manifested “a very cool demeanor,” even when the argument turned to a dispute about how the vote should be taken.
Bruce Spiva, an African American 2L, remembered that “there was this huge question of whether people should vote with their heads up or whether they should put their heads down.” A vote on that penultimate question favored semisecret heads down, and eventually Berenson’s final motion, to censure Froman and Lee rather than drop them, was defeated. Norris remembered “walking out of that meeting and thinking ‘God, what a mess. What have I gotten myself into?’” New 2L Howard Ullman recalled “a palpable sense of divisiveness and polarization,” with Gannett House often so tense that “various folks would not talk to other folks.” Michael Cohen remembered “Christine getting a lot of friction when she came back and feeling really unwelcome.” Lee could not believe Berenson had been serious, and “I was mad at Barack for even allowing it—he could have just squashed the whole thing,” or so she thought. “After that, Froman and I just have nothing but contempt for Barack,” she recalled. “We hated Barack together.”42
Obama’s cool disinterest in his colleagues’ angry passions contrasted with his warmer one-on-one demeanor, even toward the Review’s undergraduate work-study students. Senior Paul Massari had worked at Gannett House ten hours per week, including summers, ever since his freshman year, but he was “just really struggling” that August because he had no idea what to do post-graduation. Sitting on Gannett House’s front steps one lunchtime looking miserable, Massari was joined by Obama, who “sat down and lit up a cigarette and just kind of talked to me and asked me what was going on.” Massari said he was embarrassed by feeling unready for graduate school, and Obama talked about how “he had taken a bunch of time off” and had done fine. “He was very kind to me” and having his validation “really helped me a lot.” Another undergraduate worker, Lois Leveen, also remembered Barack as “incredibly personable and engaging,” with an “ability to connect with people” and a “responsiveness that felt genuine,” even if he always did address any group of editors as “folks.”
In addition to the controversy over Froman and Lee arriving late, Obama had two health-related issues to confront. New 2L editor Jeff Hoberman had spent the summer in Caracas, Venezuela, and within two weeks of returning to Gannett House, Hoberman was diagnosed with hepatitis and sent home for a month. In an excess of caution, Obama decided that everyone at the Review had best receive painful gamma globulin injections at University Health Services. When Hoberman returned, he was repeatedly greeted with: “We got shot in the butt because of you.”
More problematic was how Patricia Williams had contracted Lyme disease while spending the summer on Martha’s Vineyard, leaving her unable to meet her deadline for the case comment that was to be paired with Charles Fried’s in the November issue. This reignited the warfare from months earlier, with Brad Berenson’s conservatives arguing that “she didn’t meet the deadline: she’s out,” while Williams’s proponents wanted to give her more time and include a note in the November issue that her response to Fried would appear in the next issue. That led to another “very acrimonious debate” about where in the November issue the reference to Williams would appear. Different participants came away with different feelings about Barack’s role in the process. Brad Berenson saw him as “a pretty honest broker, someone who genuinely understood and empathized with the views and perspectives of both sides.” He “gave everybody a fair hearing” and “tried to do something sensible, in the best interests of the publication” while “maintaining harmony among a very fractious group of editors.” Yet most of Berenson’s conservative allies viewed Obama “as essentially two-faced, as telling everybody what they wanted to hear, making everybody believe that he agreed with them” while in the end always coming down
on the left.
Christine Lee was not the only liberal 3L who regretted supporting Barack for president. Masthead meetings took place at 8:00 P.M., and they could go on for hours, often featuring the same sort of bickering that had occurred over Williams. Liberal Susan Freiwald remembered being called by SE Jean Manas before one meeting and being warned that Obama was not going to be on their side. “You’ve got to watch out! Barack’s not going to be totally on our side!” Manas “was just up in arms. ‘This is terrible! I thought we won!’” Freiwald was more irritated by Barack’s infinite tolerance for his colleagues’ long-windedness. “Barack, I need to go home before midnight. It is not safe for me to walk home in the middle of the night. You need to limit people. . . . If this isn’t over at 11:00 P.M., I’m leaving no matter what. I’m not sacrificing my safety for these blowhards.”
Not having Williams’s comment was not the only problem with the November issue. Robin West, writing on a tight deadline while coping with her first infant, submitted her manuscript on time, although even she realized it was not as good as her previous article. At Gannett House, the 2Ls sub-citing her piece were dismayed. Bruce Spiva remembered one evening “Barack coming in to check on the new people . . . ‘How’s it going, folks?’” and Bruce vented about West’s manuscript. “This is in awful shape. We ought to tell these professors that they shouldn’t turn in stuff like this. This is just unacceptable. We’re having trouble finding what she’s talking about, and it’s poorly written.’” Just as with Michael Cohen’s earlier complaint about the late arrivals, Barack downplayed the problem and told Bruce, “You just kind of have to get used to this” while “giving us a pep talk” about how they should not take the Review too seriously. “Don’t worry about it, Bruce. Nobody’s going to read it.”
West found Barack thoughtful and polite. “Every time he called,” she remembered, “he asked how the baby was doing” and was Robin getting enough sleep. Barack was “very sensitive,” a “quite unusual” trait in law review editors. Barack was “very gracious about the edits” and “knew this was burdensome” for her. “He did not have sort of typical left-progressive views on identity politics,” West realized, and while “he was always very formal on the phone,” eventually “he started calling me Robin.”
Before classes began, Obama spoke at a BLSA orientation event for African American 1Ls. Artur Davis, a magna cum laude graduate of Harvard College, remembered being struck by Barack’s “extreme sophistication” and thought “he was either going to be a Supreme Court justice or a political figure.” Tom Perrelli, who as managing editor was Barack’s closest Review coworker, believed Barack was “the most fully formed person I met” during three years of law school. “He seemed to be a pretty much fully formed grown-up,” SE Julie Cohen agreed, “and you would not have said that about most people” on the Review. 3L Devo cochair Marisa Chun likewise thought Barack “was a fully formed adult by the time he was on the Law Review,” someone whom others looked up to as “wiser, more mature, more worldly, because he was.” Sean Lev thought Barack was “extraordinarily impressive,” and fellow 2L editor Jonathan Putnam agreed that Barack was “incredibly impressive,” indeed “the most impressive person I had ever met in my life.” Conservative 2L Carol Platt believed Barack “did a good job at projecting this image of being the adult in the room,” and manifested “an absolutely preternatural self-confidence,” but he “was just never that invested in” the Review itself. “You just got a sense that he didn’t give a damn about too much.”43
For fall classes, Rob and Barack, like most of the 3L editors, enrolled in Charles Fried’s Federal Courts course. Fried used the traditional Harvard text, Henry M. Hart Jr. and Herbert Wechsler’s The Federal Courts and the Federal System, 3rd ed., and the course examined federal jurisdiction, habeas corpus, and civil rights actions that could be brought pursuant to 42 U.S.C. §1983, which dated from the Reconstruction-era Enforcement Act of 1871. Obama’s basketball buddy David Hill remembered that Barack “enjoyed sparring with Fried, and Fried enjoyed sparring with him.” The students thought Fried was an excellent professor, and once it became clear that despite his service as Reagan’s solicitor general, he was no “Republican apparatchik,” the festering controversy about his Review comment quickly faded. The class met for two hours in the morning, twice a week, and Fried took a short break halfway through. Gannett House was close enough that Review editors could dash there and return with a bagel, donut, or muffin. The muffins were especially popular, and, as 3L editor Lourdes Lopez-Isa remembered, were “huge, like the size of your head.”
ME Tom Perrelli recalled that there was no question that “muffin flaunting” took place. A year earlier, when it had become known who had made Law Review and who had not, those results, even more than 1L grades, painfully challenged Harvard students’ “sense of shared eminence,” as Robert Granfield explained. There was no denying that Review membership elevated editors above their classmates, and access to these luscious goodies distinguished the super-elite from the also-rans. It was as if “the rest of us didn’t count,” recounted Section III veteran Michelle Jacobs. “The rest of us sat there” while the Review members returned with their pastries and munched away as class resumed. But one morning Fried asked, “Why do certain people have these muffin thingees? Where are all these lovely muffins coming from?” And, most memorably, “Can I have a lovely muffin? Who can bring me one?” By calling out “the chosen few who got the bagels and the muffins,” Christine Lee recalled, “he put it out in the open.”
Editor Dave Nahmias, a 3L, was in Fed Courts and wondered “why we were spending our money to buy breakfast for the Law Review.” Nahmias thought the law school’s “poisonous and elitist” atmosphere was not helped by the editors’ conspicuous consumption. “The Law Review people are not particularly popular with a lot of the other law students,” and their “lording of this benefit” over their classmates rubbed many people the wrong way. “There had been grumbling before,” 3L editor Chris Sipes remembered, “but it really reached a pitch after Fried commented on it.” The “bagel war erupted,” and “this was a riven issue,” Brad Berenson drily observed. A full-body meeting was called, with Obama presiding. Nahmias moved to eliminate the morning spread, though not the evening snacks, because at night editors were actually working on the Review. Only a few people sided with Nahmias, but at one point Barack unintentionally brought the discussion to a halt by using a word—“precatory”—that no one in the room understood. “C’mon, folks,” Barack responded, explaining its usage. “He always said folks,” 2L Sean Lev recounted. ME Tom Perrelli spoke up to encourage editors not to consume the fruits of their privilege in front of less fortunate classmates, and Nahmias’s motion was overwhelmingly defeated. “People liked the perk, and nobody cared if everybody else in the law school thought they were a bunch of elitist jerks,” Nahmias explained. But at least in Fed Courts, Perrelli’s advice was widely ignored. “Someone always had to bring donuts to Professor Fried,” Michelle Jacobs remembered. “He ended up with donuts every day.”
Barack and Rob debated taking Corporate Taxation before deciding against it. Rob’s economics background drew him to Antitrust, which Barack passed on so he could take a Kennedy School of Government course on persuasion and politics taught by the well-known political scientist Gary Orren. Barack and Rob also enrolled in a once-a-week seminar, Civil Society, that Mary Ann Glendon, whom they had had for Property, was offering in conjunction with Martha Minow and a third professor, Todd Rakoff. Much of the semester would be spent listening to guest speakers, but they could use the seminar as a basis for an additional two-credit independent writing project that would give them the opportunity to pursue an idea they had been discussing for more than a year: to coauthor an intensely analytical book examining several present-day policy problems and critiquing overly ideological approaches to them.
The Glendon-Minow-Rakoff seminar began with four weeks of readings. “They tried to teach us very quickly sociology
,” 3L Eric Posner explained. They began with some of Thomas Hobbes’s Leviathan plus an excerpt from British philosopher Dorothy Emmet’s 1966 book Rules, Roles and Relations. Further readings from Émile Durkheim, Karl Marx, and Max Weber were followed by classes with Catholic labor activist Monsignor George Higgins; feminist ethicist Carol Gilligan, well known for her 1982 book In a Different Voice; social critic Alan Wolfe discussing Richard Rorty; and Anthony Cook speaking about liberation theology. Each week students prepared two-page papers reacting to the assigned readings, but Posner recalled that the course “didn’t work” and the three professors “understood it didn’t work.”44
The sudden retirement of Supreme Court justice William J. Brennan added additional work for the Review’s November issue. Traditionally, after every justice’s departure from the court, the Review published a series of brief appreciative tributes, and 2L Jennifer Collins took the lead in quickly commissioning a half-dozen such pieces. Justice Thurgood Marshall and Judge Abner Mikva led off the feature, which occupied the issue’s first thirty-nine pages. Two contents pages then detailed the Supreme Court material: West’s foreword, “Taking Freedom Seriously”; Fried’s comment, “Metro Broadcasting, Inc. v. FCC: Two Concepts of Equality”; and twenty-seven separate case notes of about ten pages apiece, each written by a different editor. At the bottom, in the smallest type possible, was the note “An additional Comment on Metro Broadcasting, Inc. v. FCC, by Professor Patricia Williams, will appear in the December 1990 issue.”
