Tribe's testimony and his many television appearances were so effective, however, that they made up a kind of kamikaze mission where his future was concerned. Tribe craved a seat on the Supreme Court and he hoped that a Democratic President would nominate him, but, after the Bork hearings, Republican elephants, blessed with long memories, vowed that they would never forgive him.
Tribe was born in Shanghai in 1941, to Jewish parents who had fled the tsarist pogroms. His father was held in a Japanese-run internment camp near Shanghai, and, when the war was over and he was released, he brought the family to San Francisco. Tribe was a versatile prodigy. He won a full scholarship to Harvard and wound up studying math and graduating summa cum laude having done all the coursework for a doctorate. He did not pursue a career in mathematics because he saw that he could not match his contemporary at Harvard Saul Kripke, an eccentric logician and philosopher, who had been writing about modal logic since he was seventeen.
Looking for a field with "real-life ramifications," Tribe went to Harvard Law School and, after graduation, began teaching. Tenured at Harvard at twenty-nine, he published, in 1978, a seventeen-hundred-page treatise entitled American Constitutional Law, the most authoritative volume on modern constitutional doctrine. As a litigator at the Supreme Court, Tribe has presented cases on free speech, homosexual rights, and women's rights. In 1986, he took on Bowers v. Hardwick, a case in which he argued for the rights of gay men and women to practice consensual sex without fear of state prosecution. The Court ruled against Tribe's client, Michael Hardwick, and for the State of Georgia, five to four. Not long after Lewis Powell retired from the Court, he publicly admitted that he regretted voting with the majority, and, in 2003, in a case called Lawrence v. Texas, Bowers was overturned. Anthony Kennedy, who, in great measure, owed his job to Tribe, wrote the opinion for the majority.
Tribe also distinguished himself among academics by becoming a wealthy man litigating corporate cases. For helping to win a ten-billion-dollar judgment for Pennzoil against Texaco, his fee was reportedly three million dollars. Not a few of his colleagues were shocked by a 1994 article in The American Lawyer called "Midas Touch in the Ivory Tower: The Croesus of Cambridge" that reported that Tribe was earning between one and three million dollars a year.
By the time the Class of 1991 arrived on campus, Tribe had taught thousands of students. One afternoon--on March 29, 1989-he jotted a note to himself on his desk calendar. It read, "Barack Obama, One L.!" He wanted to remind himself of an encounter that day with an impressive student who had come by his office to talk. "Barack wanted to get to know me because he was interested in my work," Tribe recalled. "I soon saw that he was very purposive about being at the law school. It wasn't a school of maintaining options as it is for many students. Barack had a clear sense that he wanted to know about the legal infrastructure of things: corporate law, constitutional law as the framework. I was impressed by his maturity and his sense of purpose, his fluency."
Tribe signed up Obama as his primary research assistant, and they worked on three projects together: Tribe's book Abortion: The Clash of Absolutes; a highly theoretical article called "The Curvature of Constitutional Space," in which Tribe called on metaphors derived from quantum physics and Einsteinian relativity to describe matters of societal obligations and the law; and an article called "On Reading the Constitution." Obama caught up quickly in subjects, like physics, in which he had no background. For their work on "The Curvature of Constitutional Space," Tribe and Obama spent hours discussing the case of DeShaney v. Winnebago County, a children's-rights issue that reached the U.S. Supreme Court in 1989. The case centered on a boy named Joshua DeShaney. When his parents divorced in 1980 in Wyoming, his father was given custody, and the boy then moved with him to Wisconsin. Soon, social-services workers received reports of the father hurting the child. After an abuse report and hospitalization in January, 1983, the Winnebago County Department of Social Services got a court order to keep the boy away from his father and in the hospital, but a "child-protection team," consisting of a psychologist, a detective, several social-services caseworkers, a pediatrician, and a county lawyer, recommended that the juvenile court return the boy to his father. The beatings--and the complaints--resumed. In 1984, the father beat his son so severely that Joshua was in a coma and had to undergo brain surgery. As a result of repeated traumatic beatings, the boy became severely retarded and paralyzed. Nevertheless, the Supreme Court absolved Winnebago County of any constitutional responsibility for the child.
Chief Justice Rehnquist wrote for the majority, "A state's failure to protect an individual against private violence" was not a denial of the victim's rights. "While the state may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." This decision provoked an unusually passionate response from Harry Blackmun in dissent: "Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly and intemperate father, and abandoned by [county officials] who placed him in a dangerous predicament.... It is a sad commentary upon American life and constitutional principles."
In his discussions with Obama, Tribe called the majority's decision a form of "Newtonian blindness." In other words, he said, "the law recognized only forces at a distance and not the arrangement of the way the space around the kid was warped. Barack and I talked about this metaphor from physics, the way state power curves and bends social action.
"In going over the literature on Einstein," Tribe continued, Obama pointed out that "if one deemed the state responsible, then there would be no social space for private choice. The theme of arranging the world so that people become more accountable to themselves as agents. I remember him talking about how the case related to black fathers needing to be responsible. The theme that so often emerged was the theme of mutual responsibility, that legal institutions had to encourage people to take care of each other, and any institutional arrangement that left people completely to their own devices was fundamentally flawed."
The article was Tribe's, not Obama's, but they spent many hours together in Tribe's office or taking walks along the Charles River talking about such cases. Obama didn't talk with Tribe about running for office, but he made it plain that he had come to the law school to find better ways of "helping people whose lives had been ripped apart," as Tribe put it. When an unsigned legal note by Obama on abortion surfaced years later during the Presidential campaign, Tribe said: "It was consonant with the ways he thought with me about the puzzles of abortion, the incommensurability of the arguments: bodily integrity on one hand and the value of unfinished life on the other. He kept both values in mind in a way that would be meaningful to both sides."
What Tribe and Obama mainly discussed was the law itself. They rarely waded into ideological abstraction. "To make a beeline to Larry Tribe is to say that you want to be a lawyer," Martha Minow, a liberal who taught a course in law and society, said. "It was the kids who self-consciously identify themselves as radical or quite left-wing who head for elsewhere. That wasn't Barack."
Minow, who became dean of the law school in 2009, was another of Obama's mentors at Harvard, and they formed a friendship that had great implications for Obama's professional and personal life. Minow grew up in Chicago; the daughter of Newton Minow, who was chairman of the Federal Communications Commission in the Kennedy Administration and a partner at the corporate law firm of Sidley Austin. Obama met his future wife, Michelle Robinson, at the firm as a summer intern. The more Minow learned from Obama and about his past, the more she came to understand his capacity to discuss the most explosive political or racial issue with an uncanny balance of commitment and dispassion. "Obama is black, but without the torment," she says. "He clearly identifies himself as African-American, he clearly identifies with African-American history and the civil-rights movement, but his life came largely--not completely, but largely--without the terrible oppression.
"Barack is a univ
ersalist who doesn't deny his particularity," Minow continued. "He is very specifically African African-American, but he is also someone with a white mother and white grandparents. He could and would identify with different people. In America, you are 'raced' whether you have chosen it or not. He struggled with that as a college student and as a law student. But he came to accept and embrace what and who he is, and, at the same time, he has this very special sense of universalism that would become such an important part of his political message later on."
At Harvard and, later, in a seminar led by the political scientist Robert Putnam, Minow noticed Obama's ability to shift his tone and language just enough to put anyone--the white Harvard professor, a black friend from the inner city, a bank president, clergymen, conservatives, liberals, radicals--at ease. Later, when he entered politics, reporters who followed him noticed the same thing. "He can turn on and off the signals that work best," she said. "That's not a bad thing at all--just the opposite. I think that's the promise of a multicultural society.
"It's partly because he is biracial, partly because of his father and being abandoned, and Indonesia," Minow went on. "All of this leads to a search for self-definition and gives him a non-knee-jerk way of thinking about race."
Over the years, Obama stayed in touch with Tribe and Minow. They discussed electronic eavesdropping, Guantanamo, the politicization of the Justice Department under the Bush Administration, future Supreme Court justices. And they have occasionally disagreed--about same-sex marriages, for instance, which Tribe supported and Obama opposed.
"Overall, Obama has, and had then, a problem-solving orientation," Tribe said. "He seems not to be powerfully driven by an a-priori framework, so what emerges is quite pragmatic and even tentative. It's hard to describe what his presuppositions are, other than that the country stands for ideals of fairness, decency, mutual concern, and the frame of reference that is established by our founding and the critical turning points of the Civil War and the New Deal, as a frame to identify who we are. When Earl Warren was Chief Justice, he would ask, after an oral argument, 'But is it fair?' For Barack, the characteristic question is, 'Is that what we aspire to be as a country? Is that who we are?'"
In the speech he made in March, 2007, at Brown Chapel, in Selma, commemorating Bloody Sunday, Obama observed that, as a member of the Joshua generation, he stood "on the shoulders of giants." At Harvard, the giant was Charles Hamilton Houston. Very few students arrived at the law school knowing the name. And yet Houston was, in his way, as crucial to the civil-rights movement as the marchers in Selma. He was their precursor. At Harvard, he was Obama's precursor, too.
In May, 1915, The Crisis, the official publication of the N.A.A.C.P., published a one-sentence item: "Charles H. Houston, a colored senior of Amherst College, has been elected to the Phi Beta Kappa." This is the first public recognition of the man who became, in the nineteen-thirties and forties, the chief architect of the legal war against school segregation.
Houston's civil-rights movement, however, was not one of culture or protest. It was a movement of lawyers, who argued a stream of cases that sought equal rights of citizenship for people of color. Following the end of the Civil War and, between 1865 and 1870, the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments, the hopes of Reconstruction faded and were overrun by nearly a century of lynchings, segregated public schools and facilities, and all the other elements of institutionalized racism in America. "Charles Houston became the critical figure who linked the passion of Frederick Douglass demanding black freedom and of William DuBois demanding black equality to the undelivered promises of the Constitution of the United States," Richard Kluger wrote in Simple Justice, his history of the fight for desegregation and Brown v. Board of Education.
Born in 1895, Charles Hamilton Houston was raised in Jim Crow Washington. His father was a well-to-do lawyer, a member of the capital's tight-knit black bourgeoisie. A member of Harvard Law School's class of 1922, Houston was the first black ever to win a spot on the Law Review.
After Harvard, Houston taught at Howard University. Founded in 1867, Howard was an outgrowth of the Freedman's Bureau; the original property was a beer hall. Many of the doctors, dentists, lawyers, nurses, engineers who emerged from that era and created a black middle class and a black intelligentsia attended Howard. The great power behind the school's expansion was its first black president, the economist and minister Mordecai Johnson. On the advice of Louis Brandeis, Johnson reorganized the law school and hired Charles Houston to assemble a faculty--and it was to be a faculty with a distinct political purpose. Houston's most important student was Thurgood Marshall, who became his protege at the N.A.A.C.P. Legal Defense Fund.
Attacking the "separate but equal" principle of the Supreme Court's 1896 decision Plessy v. Ferguson, Houston piled up numerous victories for racial justice. In the 1936 case of Murray v. Pearson, for example, Houston established that the University of Maryland could not exclude African-American students--as it had Thurgood Marshall. Missouri ex rel. Gaines v. Canada required equal educational opportunities for young people of all races, a principle that was extended to the entire country by the Supreme Court. Houston was committed to purpose; as he put it, "a lawyer's either a social engineer or he's a parasite on society."
The battles that Houston and proteges like Marshall, Spottswood Robinson, A. Leon Higginbotham, and William Hastie waged at the time had little support in the white world. As Houston's biographer Genna Rae McNeil points out, Houston came along before the rise of King and the civil-rights movement, at a time when other courses of action were limited to "advocacy of black separatism, accommodation to the system, collaboration with the predominantly white working-class" left, or "affiliation with groups promoting justice for all through the overthrow of the government."
Houston died in 1950, four years before Marshall argued Brown v. Board of Education, the case that ended the legal structure of school segregation. Houston was just fifty-four. After the great victory in Brown, Marshall paid tribute to Houston, saying, "We were just carrying his bags, that's all."
For African-American students at Harvard, Houston was an important symbol. "Houston was a big figure in the background of our minds," Ken Mack said. "And when Barack and I arrived it happened to be a moment when Houston was being recovered in historical memory. He was an especially big figure for all the black students on the Law Review. That book"--Genna Rae McNeil's 1983 biography of Houston, Groundwork--"had come out. You'd walk through the building and there are all these pictures of the editors since 1900, all these white faces, dozens each year, until you hit 1922--and then you see that one black face. Houston. It was a powerful thing to think that you were in some way the heir of one of the most powerful civil-rights figures in American history." (In 1991, Obama filmed, for TBS, a "Black History Minute" on Houston's life.)
For decades, the Law Review retained all the characteristics of an elite American institution, including racial prejudice. In its first eighty-five years, there were precisely three black members: Houston; William Henry Hastie, who later worked with Houston at the N.A.A.C.P. and became a federal appeals-court judge; and William Coleman, who was appointed Secretary of Transportation in the Ford Administration. (The first female president of the Review was Susan Estrich, who was elected in 1976 and went on, in 1988, to run Michael Dukakis's ill-fated Presidential campaign.)
The Harvard Law Review is a precipitate of the school's best and most ambitious students: only about three or four dozen are selected out of a class of more than five hundred students. Felix Frankfurter once said that life at the Review creates the "atmosphere and habits of objectivity and disinterestedness, respect for professional excellence, and a zest for being very good at this business which is the law." There are other publications on campus--the Harvard Civil Rights-Civil Liberties Law Review (where Obama had some experience), the Harvard Journal on Legislation, the Harvard International Law Journal, the conservative Harvard Journal of Law and Public Policy--
but the Law Review has always been the focus of greatest attention, whether from corporate law firms, investment banks, or judges looking for clerks. The sense of election and entitlement could not be greater among the editors. It is an old tradition. Oliver Wendell Holmes and Louis Brandeis began automatically selecting, each year, two high-ranking Law Review editors as their clerks. The Review's alumni include Felix Frankfurter ('06); Antonin Scalia ('60); Richard Posner ('62); Nuremberg trial counsel Telford Taylor ('32); former Secretary of State Dean Acheson ('18); former Attorney General Elliot Richardson ('47); Senators Thomas Eagleton ('53) and Robert Taft ('13); former Yale president Kingman Brewster ('48); Washington Post publisher Philip Graham ('39); the poet Archibald MacLeish ('19); and Alger Hiss ('29).
Obama nearly botched his bid to get on the Law Review--and join this inner sanctum of the establishment--when, on the way to the post office to mail his application form, his balky Toyota Tercel broke down. After a flurry of frantic phone calls, he got a ride from his classmate Rob Fisher. Obama's grades were good--he graduated magna cum laude--and he got in.
The Law Review is situated in Gannett House, a white three-story Greek-Revival house. It is named for Caleb Gannett, a minister who lived nearby in the eighteenth century. Law Review editors routinely spend forty, fifty, sixty hours a week there, with first-year editors proofreading and copyediting articles and checking footnotes and citations, all according to the strictures of A Uniform System of Citations. (The style guide, better known as The Bluebook, is sold by the Review and is the publication's biggest money-maker.)
The Bridge: The Life and Rise of Barack Obama Page 26
