November 3, 2008

THIS WAS INTERESTING ON THE FRONTLINE SPECIAL TONIGHT:

Harvard Law Days (Frontline, 11/03/08, PBS)

Bradford Berenson Harvard Law, class of '91; associate White House counsel, 2001-'03

The law school generally at that time was riven ideologically, and not just in terms of Republican/Democrat partisan politics, but there were contending schools of legal thought at the time, represented on the faculty, that really polarized both the faculty and the student body. There was a far-left group of professors who adhered to what was known as critical legal studies, and then there were a handful of conservative professors, like Charles Fried, who had served in the Reagan administration. There were intense debates over affirmative action and race issues. This is, after all, just a few years after the end of the Reagan presidency. ...

That doesn't mean that, day to day, people weren't friendly to one another, but the classroom was very politicized. The debates and discussions of the law and of cases frequently pit conservatives in our class against liberals in our class, and the discussions often got quite heated. I would say the environment at Harvard Law School back then was political in a borderline unhealthy way. It was quite intense.

... Interestingly, race was at the forefront of the agenda. There were intense debates over affirmative action that sometimes got expressed through fights over tenure decisions relating to junior faculty at the law school. There were women professors and minority professors who either had come up for tenure or were coming up for tenure, and there were big fights, on the faculty and in the law school at large, over whether they should receive tenure, whether the quality of their scholarship merited that. ...

[A]fter [Obama] became president of the Review, he was under a lot of pressure to participate and lend his voice to those debates. And he did, I think, to some degree. But I would not have described him as a campus radical or a campus political leader. He was the president of the Harvard Law Review, the leader of that organization. But, in that role, his job was to manage, in essence, a publication, and the editors who brought it forth and to do a lot of close editing of academic legal articles. …

You don't become president of the Harvard Law Review, no matter how political, or how liberal the place is, by virtue of affirmative action, or by virtue of not being at the very top of your class in terms of legal ability. Barack was at the very top of his class in terms of legal ability. He had a first-class legal mind and, in my view, was selected to be president of the Review entirely on his merits.

... I never regarded him as kind of a racial special pleader, or a person looking for race-based benefits, either for himself or others. I think as a policy matter, he supported affirmative action and believed in the arguments for it. But unlike many people on the left, he was also willing to acknowledge that it had costs, and he could at least appreciate the arguments on the other side. ...

Just in a political sense, what kind of a person were you looking for [to serve as president]? ...

The block of conservatives on the Law Review my year I think was eager to avoid having any of the most political people on the left govern the Review. I mean, the first bedrock criterion, I think for almost all of the editors, was to have somebody with an absolutely first-rate legal mind who would be able to engage competently with the nation's top legal scholars on their scholarship and on these articles, and who would provide the intellectual leadership for the Review that it always needed. That was non-negotiable for almost everybody right or left.

But there were a number of people that would have met that criterion. There were at least a large handful who probably had the intellectual and personal characteristics to be good leaders of the Review. From among those, the conservatives were eager to have somebody who would treat them fairly, who would listen to what they had to say, who would not abuse the powers of the office to favor his ideological soul mates and punish those who had different views. Somebody who would basically play it straight, I think was really what we were looking for.

Was that hard to find?

It was very hard to find. And ultimately, the conservatives on the Review supported Barack as president in the final rounds of balloting because he fit that bill far better than the other people who were running. ...

We had all worked with him over the course of a year. And we had all spent countless hours in the presence of Barack, as well as others of our colleagues who were running, in Gannett House [the Law Review offices], and so you get a pretty good sense of people over the course of a year of late nights working on the Review. You know who the rabble-rousers are. You know who the people are who are blinded by their politics. And you know who the people are who, despite their politics, can reach across and be friendly to and make friends with folks who have different views. And Barack very much fell into the latter category. ...

[After Obama is selected,] he does a very able job as president. Puts out what I think was a very good volume of the Review. Does a great job managing the difficult and complicated interpersonal dynamics on the Review. And manages somehow, in an extremely fractious group, to keep everybody almost happy.

Some of the people who are not as happy as others, I think much to their surprise, are some of the African American people who believe that now it's their turn.

Absolutely right, absolutely right. I think Barack took 10 times as much grief from those on the left on the Review as from those of us on the right. And the reason was, I think there was an expectation among those editors on the left that he would affirmatively use the modest powers of his position to advance the cause, whatever that was. They thought, you know, finally there's an African American president of the Harvard Law Review; it's our turn, and he should aggressively use this position, and his authority and his bully pulpit to advance the political or philosophical causes that we all believe in.

And Barack was reluctant to do that. It's not that he was out of sympathy with their views, but his first and foremost goal, it always seemed to me, was to put out a first-rate publication. And he was not going to let politics or ideology get in the way of doing that. ...

He had some discretion as president to exercise an element of choice for certain of the positions on the masthead; it wasn't wide discretion, but he had some. And I think a lot of the minority editors on the Review expected him to use that discretion to the maximum extent possible to empower them. To put them in leadership positions, to burnish their resumes, and to give them a chance to help him and help guide the Review. He didn't do that. He declined to exercise that discretion to disrupt the results of votes or of tests that were taken by various people to assess their fitness for leadership positions.

He was unwilling to undermine, based on the way I viewed it, meritocratic outcomes or democratic outcomes in order to advance a racial agenda. That earned him a lot of recrimination and criticism from some on the left, particularly some of the minority editors of the Review. ...

It confirmed the hope that I and others had had at the time of the election that he would basically be an honest broker, that he would not let ideology or politics blind him to the enduring institutional interests of the Review. It told me that he valued the success of his own presidency of the Review above scoring political points of currying favor with his political supporters.


But it was appalling that after Mr. Berenson talked about how he'd worked in the White House and the Supreme Court but that the worst political infighting he's ever seen was on the Law Review they then cut to the section of the program on John McCain's years as a POW and you realize how trivial Mr. Obama's life experience really is.

Posted by Orrin Judd at November 3, 2008 10:13 PM
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