by David Garrow
A huge wall chart in the office shared by ME Tom Perrelli and the three executive editors tracked the editing process for the November pieces, and Barack actively shepherded many of the case comments. Kevin Downey was tackling Cruzan v. Director, a “right to die” case that had attracted great attention, and Downey’s long final footnote included a quotation from Leo Tolstoy’s The Death of Ivan Ilyich: “In fact, the most profound moments of Ivan’s life occur when others would prefer that he be relieved of his suffering.” Downey remembered that “Obama really wanted me to take it out,” and they wrestled over it for some time before Downey prevailed. Obama also took an active role in 3L Frank Amanat’s note on Rutan v. Republican Party, an Illinois case in which the Supreme Court had ruled forcefully against partisan political patronage in public sector hiring. Amanat believed it was “a great decision,” but a fellow 3L editor “had a real problem” with Amanat’s analysis and “I took umbrage.” Their disagreement became “an intractable problem” and “I took it to Barack,” who “asked me to work it out and asked Tom to mediate.” Perrelli persuaded Amanat to make some changes and got the other editor to back off. “That’s an example of Barack’s management style” as Review president, Amanat explained. “He always took a very problem-solving attitude.”45
Almost weekly that fall there were student protests over faculty hiring as well as charges that a large law firm that interviewed annually on campus had engaged in discriminatory behavior at another school. Cassandra Butts was again in the lead, but most students did not pay the protests much attention. “It’s gotten to the point where they’re protesting everything,” 3L Chris Lu told the Crimson. Then the Women’s Law Association, having learned that only nine of the Review’s thirty-six new 2L editors were women, called for the Review to expand its affirmative action policy. Obama told the Harvard Law Record that editors believed the imbalance was simply “an aberration,” and on the issue of expanding affirmative action, “I don’t have a clear sense of whether it’s needed or not.” Historically everything at Harvard was “somewhat discriminatory,” Barack said, but he encouraged more women to enter the writing competition, regardless of “this year’s blip.” The WLA pushed back, complaining that it was “even more deeply disturbing if the people running Law Review don’t care enough to correct it.”
Temperatures rose exponentially when Jim Chen, the most combustible of the Review’s 3L conservatives, wrote to the Record to lambaste the WLA’s position. “The mere presence of affirmative action cheapens membership for every editor who falls within the existing groups,” and advocating expansion simply “affirms the invidious belief that women and other ‘beneficiaries’ of affirmative action can’t compete on a level field.” Citing an experience when an interviewer asked him whether the Review’s existing policy included Asians, Chen wrote that “I felt the stigma” of that question and called for everyone to “eliminate affirmative action root and branch.”
WLA leaders declared they were “completely livid” at how the Record’s initial story had simplified their views while also taking offense at Chen’s remarks. Another full-body meeting was convened at the Review to discuss the situation, with the 3L editors’ positions unchanged from nine months earlier. Affirmative action opponents were most angered by the Review’s policy of operating in complete secrecy, with the president and two other editors exercising what Brad Berenson called “totally unchecked discretionary power.”
At the Review, 3Ls and 2Ls recognized a consistent pattern in Barack’s style as presiding officer, whether the argument was about editors’ tardiness, muffins, or affirmative action. In Berenson’s eyes, “Barack tended to treat those disputes with a certain air of detachment and amusement. The feeling was almost ‘Come on, kids, can’t we just behave here?’” Obama always seemed “a little bit separate and apart from the fray, observing events from a slight emotional and intellectual distance,” Berenson believed. Even Jim Chen felt that Obama “was very savvy, a good listener,” someone who “always left the impression that he heard you out.” Michael Cohen thought that Barack “did have a real talent for conciliating these disputes,” and Marisa Chun would recall “less about his own opinions than the fact that he was masterfully able to make sure everyone else spoke their piece.” African American 2L Nancy McCullough said, “I can’t think of a particular issue that I can remember him feeling strongly about” and reflected that she “actually would have been happier for him to say sometimes, ‘This is how we’re doing this, and shut up!’” rather than letting everyone argue for hours. Lourdes Lopez-Isa agreed that with Barack, “You would never know what he thought about things.” Ken Mack recalled, “I never saw Barack lose his cool, get angry, have a fit of temper, raise his voice. . . . He was a very cool character, a very cool customer in all senses of that word.”
On affirmative action, Obama wrote a letter to the Record, explaining that the writing competition entries were graded by at least three editors. The Review’s policy simply said that the officers “may take race or physical handicap into account . . . if” they believe that will “enhance the representativeness of the incoming class,” should the raw scores make that desirable. In response to Jim Chen, Obama described himself “as someone who has undoubtedly benefited from affirmative action programs during my academic career, and as someone who may have benefited from the Law Review’s affirmative action policy when I was selected to join the Review last year.” However, 2L Jonathan Putnam recalled that among fellow editors “it was a fact in wide circulation that Barack himself had not checked off the box on the application.” But Barack wrote, “I have not personally felt stigmatized either within the broader law school community or as a staff member of the Review. Indeed, my election as President of the Review would seem to indicate that at least among Review staff . . . affirmative action in no way tarnishes the accomplishments of those who are members of historically underrepresented groups.”46
Barack and Rob Fisher were still playing basketball regularly, and 3L editor Julius Genachowski recalled one day when Barack “showed up to Law Review with a broken nose,” wearing “a pretty serious white bandage thing.” Rob remembered another time when some “really obnoxious guy . . . was right in my face yelling at me” and then “Barack was immediately in the middle, stopping it, calming everybody down.” On election night 1990, Barack invited a number of friends—Rob, Julius, and the outspokenly conservative Brad Berenson—to his Somerville apartment to watch the returns. That quartet often played poker together, with Rob explaining that Brad “was definitely a friend,” notwithstanding their differing political views.
Berenson remembered how “Barack was rooting very hard for Harvey Gantt” in a hotly contested North Carolina race, and photos from that night show Barack wearing a “Harvey Gantt for U.S. Senate T-shirt.” Gantt was a highly promising African American Democrat with a nationally touted future who was challenging incumbent Republican Jesse Helms, whose atrocious record on race included die-hard opposition to a federal holiday celebrating Martin Luther King Jr.’s birthday. But the evening ended badly, with Helms eking out a narrow 52 to 47 percent victory after investing heavily in a television ad that made an explicitly racist appeal to working-class whites: “You needed that job, and you were the best qualified. But they had to give it to a minority because of a racial quota.”47
Barack was so busy that fall he failed to send Erwin Griswold the traditional letter introducing the November issue. Even so, Griswold found it “very fine” and said it was “a marvelous performance.” He especially enjoyed the tributes to Justice Brennan and thought Robin West’s foreword was “interesting, though sometimes a little ethereal.” Griswold took a much dimmer view of the comment, writing that “Fried’s view is not only too rigid and mechanical, but represents such a narrow vision that it is quite unrealistic.” Even before Griswold weighed in on November, the December issue went to press, notwithstanding a late-night computer crash that led Barack to call 3L techie Frank Amanat to ask him to
return to Gannett House. At “2:00 A.M., I finally get the system up and running,” Amanat remembered, and a trio of exceptionally difficult pieces—David Charny and David Wilkins’s articles, plus Patricia Williams’s comment—were finally off to the printers. Multiple Law Review colleagues recall Barack investing more time and energy in the Wilkins article than in any other piece to date, but Wilkins remembered interacting with Jim Chen, one of the EEs, not Barack. Obama took some interest in Williams’s comment, which Supreme Court Office cochair John Parry had to protect from critical comments inserted by Patrick Philbin, one of the 2Ls working on the edit. “Barack had to preside over all this bickering,” Parry recalled, and conservative EE Amy Kett was impressed by Barack’s P-read on the Williams piece. “He seemed to be very hardworking” and was also “a very good manager of people.” The December issue also included an eight-page case note by 2L Jonathan Putnam, who remembered that Barack spent “a whole weekend day, with him painstakingly, and painfully for me, going through line by line what I had written.” Putnam thought this was “a lot of his energy to expend on what in the scheme of things was a tiny part of the editorial product.”
Somewhat tardily, Obama sent several copies of the November issue to Justice Brennan, along with an unusual cover letter that described the impact Brennan’s 1987 NPR interview had had on him. “I recall harboring considerable doubts about leaving my grass-roots work to become a lawyer—I felt concerned that too often the law served the interests of the powerful, and not the powerless. In the midst of my internal debate, I was fortunate enough to hear your interview,” which “helped to convince me that legal practice could in fact be a worthwhile pursuit.” More recently, he wrote, as a law student he had read a “countless” number of Brennan opinions, and he had been impressed by the justice’s “unwavering commitment to ‘the little guy,’ the underdog, and the less fortunate. Your blend of ‘reason and passion’”—a phrase Brennan had championed in a well-known 1987 lecture—“has been a source of inspiration in the development of my own legal ideas.” Citing his status as “an African-American who a generation ago might not have even attended Harvard Law School, much less served as the President of its Law Review,” Barack acknowledged “the debt that many of us owe to you in helping America to live up to its ideals of opportunity for all its citizens.” Brennan replied that he was “most grateful to you for the kind comments,” and Barack not only kept Brennan’s letter to him but had it framed.
Obama was also involved in contract negotiations for the new edition of The Bluebook with the law journals at Columbia, Yale, and the University of Pennsylvania, which cosponsored publication of Law Review’s widely used cash cow. Harvard had a 40 percent interest in the enterprise and was performing an overwhelming majority of the work being done on the new edition. Ken Mack and Frank Amanat were leading the Review’s effort, but the Yale Law Journal had exercised its right to demand a new contract. The Law Review was a sizable business, with annual subscriptions bringing in approximately $300,000 a year. That alone produced a modest operating profit, but The Bluebook generated more than $500,000 annually, with a profit of close to $200,000. That paid for much of the salaries of office manager Dodie Hajra and circulation director Mary DiFelice, as well as those warm bagels and larger-than-life muffins. An arm’s-length quartet of external trustees—the law school’s dean plus two professors and an alumni “graduate treasurer”—formally oversaw the Harvard Law Review Association and received annual audit reports. The president traditionally delivered copies of each issue to the trustees, including Richard Parker, Barack’s 1L Crim Law teacher, who recalled no problems whatsoever arising during Obama’s presidency.48
In mid-November Barack and treasurer Lisa Hay went to New York City for a contentious renegotiation session that resulted in the other three journals using their 60 percent majority interest to insist upon a 7.5 percent reduction in the Review’s share of The Bluebook’s annual net profit. In Cambridge, some conservative editors groused that Obama had been too pliant a negotiator, but Barack had something more personally significant on his mind during his trip to Manhattan. A month earlier, Jane Dystel, the literary agent whom he had met with in May, had agreed that the book proposal they had been crafting since midsummer was now ready to submit to publishing companies. Dystel, no shrinking violet, had been impressed by her exchanges with Barack. “I liked his authoritative voice,” she recalled years later. “He was so focused. Mature, really together, already sure of himself. Not your typical kid. No question whatsoever he was going someplace.”
The proposal, entitled “Journeys in Black and White,” self-confidently compared the story Obama would tell to no fewer than eight commercially successful books, most of which had been published in the early and mid-1980s. “The texture and spirit of the writing will derive from the tradition of the autobiographical narrative, typified by such works as Maya Angelou’s I Know Why the Caged Bird Sings, Maxine Hong Kingston’s The Woman Warrior, John Edgar Wideman’s Brothers and Keepers, Wole Soyinka’s Ake, Mark Mathabane’s Kaffir Boy, and Russell Baker’s Growing Up, as well as such travelogues as William Least Heat Moon’s Blue Highways and V. S. Naipaul’s Finding the Center. Such works take on the narrative force of fiction, and invite the reader to share in the hopes, dreams, disappointments and triumphs of individual characters, thereby soliciting a sense of empathy and universality that is absent in too many works on race in America.”
Among the editors to whom Dystel submitted the proposal was Elaine Pfefferblit at Simon & Schuster’s Poseidon imprint, an editor Dystel often approached. Two months earlier, Pfefferblit had hired a new young assistant, Laura Demanski, and she was tasked with reading the proposal and a brief sample chapter and recommending whether it had merit. Demanski’s October 25 report to Pfefferblit could not have been more enthusiastic: “This proposal is very impressive. Barack Obama is uniquely qualified to write what promises to be a big book about race issues, particularly black-white relations in America today. . . . His observations and reflections come from experiences both here and in Africa,” as the book would recount Barack’s 1988 trip to Kenya. “Obama has an unusually broad perspective,” and “even better, he analyzes his experiences and presents his ideas unusually clear-headedly.”
Demanski wrote that Barack “seems to work with feeling and intelligence” and said his “plans for the book are concrete and well-organized . . . the sample chapter demonstrates an impressive skill at weaving detailed personal narrative with reflective and analytic passages, at honing in on specific characters or incidents and then panning out gracefully to place these within the big picture.” Demanski believed Obama was “clear about what he wants the book to avoid being—confined to the anecdotal and shying away from discussion of wider events, on the one hand, but also sacrificing intimacy and inadequately capturing the ‘private demons and sources of inspiration that lie at the heart of the race issue.’”
Demanski’s enthusiasm was soon shared by Pfefferblit, as well as by Poseidon’s publisher, Ann Patty, a well-regarded book-business figure whose list of titles the New York Times praised as “funky, unpredictable, low on marquee authors, rich with new talent.” By the time Barack stopped by Poseidon’s offices in mid-November, both Patty and Pfefferblit very much wanted to sign up “Journeys in Black and White.” In person, Barack was “very bright and very personable and very charming,” and Demanski remembered that “we were all really impressed.” In retrospect, Ann believed “there must have been other people bidding on it,” and she remembers authorizing Pfefferblit to offer $125,000 to acquire the rights. “We did take risks like that,” Patty explained, and that sum was much higher than what a twenty-nine-year-old first-time nonfiction author normally could hope to receive. With the initial payout of $40,000, Barack could take a full year after graduation to write the book. The balance, half payable on submission of a complete manuscript and the remainder upon publication, would more than cover the tens of thousands of dollars in student loans Obama had i
ncurred while attending Harvard. Less than two weeks later, on November 28, Poseidon issued the contract. Barack’s due date was June 15, 1992.
Back in Cambridge, Barack was visibly ecstatic about this news. Michael Weinberger, who had done yeoman work for months on the David Wilkins article, invited Barack home to have dinner one evening with him and his wife, to whom he had said, “this guy’s going to be famous” as “an important politician.” Dinner was nothing fancy—spaghetti with three sauces—but the normally circumspect Barack could barely stop burbling. “He had just gotten a book contract,” Weinberger recalled, and “a lot of the talk had to do with the agent.” All in all, Barack “was pretty excited about it.”49
Before classes ended, the editors had to get the unusually thin January issue—only 150 pages—off to the printer. The sole article dealt with antitrust law; a twenty-page student note by Christine Lee, which Erwin Griswold found “stimulating,” addressed employment discrimination against black men; and a review considered Chris Edley’s new Yale University Press book, Administrative Law: Rethinking Judicial Control of Bureaucracy. With the semester about to end, Barack and Rob had to finish a detailed outline of the lengthy paper that was due to Martha Minow that spring and which they hoped could become a coauthored book.
“Transformative Politics,” or “Promises of Democracy: Hopeful Critiques of American Ideology” reflected remarkable aspirations and envisioned three major sections. The first would explicate a trio of topics: “How Has the American Left Failed?,” “How Has the American Right Failed?,” and “The Shared Assumptions of the Left and the Right.” The center of the book would be three analytical chapters. “Plant Closings—The Viability of the Regulated Market” would be followed by “Race—The Limits of Rights Rhetoric” and then “Public Education—Balancing Local Control With Quality Control.” Finally, their conclusion would discuss “The Importance of Democratic Dialogue.”
