Rising Star

by David Garrow

  Jean Rudd and Ken Rolling at Woods felt similarly. “When Barack left, Johnnie was really very feeling kind of abandoned,” Jean recalled. “He wasn’t quite ready to be in charge yet” and “just wasn’t confident at that point.” Ken agreed that “John became director before his time.” When Barack learned what had happened, he discussed the situation with Jean, Ken, and Jerry, who remembered that he was “deeply concerned about it” because “he’s feeling responsible.” Kellman also thought that if “DCP blows up in a scandal,” it could hurt Barack’s reputation. Owens recalled that Barack “suggested that I change the name of DCP” because he “figured if I didn’t do a good job with it or something went wrong, it wouldn’t come back to haunt him.” Johnnie saw Barack as deeply strategic about his own future, but Barack refused to acknowledge that. “I was pressing him one time, and he got angry. ‘No! I said no!’” But Barack’s exceptionally rare outburst did not alter Owens’s firm belief.

  During Obama’s first semester at Harvard, the Illinois legislature had finally approved a comprehensive Chicago school reform bill, which Chicago United’s Patrick Keleher praised as “a fantastic bill,” one that called for every Chicago public school to be governed by an eleven-member Local School Council composed of six parents, two area residents, two teachers, and the principal. UNO and Gamaliel had played a significant role in the victory, but the hard work of implementing it still lay ahead.

  Barack had corresponded regularly with Mary Ellen Montes throughout the fall. “The letters came for a while,” Lena remembered, but then there was “a determining letter that was sort of like we weren’t going to write to each other anymore, and so we didn’t.” By January 1989, Lena was involved with someone else, and she and Barack were never again in touch. In Lena’s and Sheila’s absence, and with his friendship with Johnnie now seriously strained, Barack’s two strongest Chicago relationships were with Kellman and Kruglik, and during his ten days back in Chicago, he readily helped both of them with their ongoing organizing work.

  Jerry was now fully occupied in Gary, Indiana, and thanks to both Woods and the Diocese of Gary, he had just publicly launched Lake Interfaith Families Together (LIFT), named after the county that encompassed much of northwest Indiana. In Chicago’s south suburbs, Mike was rapidly growing the South Suburban Action Conference (SSAC), and in January 1989, he hired a new young African American organizer, Thomas Rush, a 1988 graduate of Haverford College.

  Rush recalled that even during his first long conversation with Kruglik, Mike mentioned Barack, with the implication being that “this guy was special within organizing.” Mike asked Barack to call Thomas, and the next morning they met for forty-five minutes over coffee. Knowing that Barack was at Harvard, Rush expected someone arrogant, but instead he thought Obama was calm and self-assured, with an “even temperament.” Rush remembered that when Barack mentioned Jeremiah Wright, it was “almost like his mind left for a minute” as Barack looked away. When Thomas asked how attending Harvard Law School would connect to further organizing work, Barack said, “I don’t know that I’ll be directly involved, but this will always be a process that I support, whatever I do.”

  A few days later, during a LIFT training in Gary, which Kruglik and Rush attended, Obama, along with Kellman, led the day’s sessions for a group of some forty people. At the end of the day, Rush rode back into Chicago with Barack. As Thomas recalled it, Barack mentioned “that he would like to find a good relationship,” ideally “a woman with the body of Whitney Houston and the mind of Toni Morrison.”

  Before Barack returned to Cambridge, he had his summer job interview at Sidley & Austin’s Chicago office. “We brought in all of the kids who had a Chicago connection,” John Levi recalled, for twenty-minute conversations with two or more Sidley lawyers. African American applicants generally were seen by a trio of Levi, Geraldine Alexis, and Alexis’s chief lieutenant, Michelle Robinson, the 1988 Harvard Law graduate who had played such an active role in BLSA before joining Sidley eight months earlier.

  “Michelle I distinctly remember saying, ‘I cannot see him. Will you please make sure you can see him?’” Levi remembered. He did, and “I was wowed” by Obama. “I thought he was phenomenal. He was one of the best interviews I’ve ever had, really.” He recalls that Obama demonstrated “poise and sparkle” and clearly was “a compelling person.” Geri Alexis had a similar reaction. “I remember very vividly” speaking with Barack. “He impressed me so much that I called down to the recruiting office, and I said, ‘We really need to give this guy an offer before he leaves the building,’ and they said, ‘Well, we don’t do that for 1Ls,’ and I said, ‘You’re going to do it for this one,’” and they did.

  John Levi concurred. “I called Michelle later in the day and said, ‘Boy, did you miss a good one,’” and Robinson replied, “‘That’s what everybody is telling me.’” As Levi recalled, Barack “accepted quickly too.”10

  Spring classes began on January 25, and Barack, Rob Fisher, Mark Kozlowski, and Cassandra Butts all chose for their elective 18th and 19th Century American Legal History, taught by assistant professor William “Terry” Fisher, a 1982 Harvard Law graduate who had clerked for Justice Thurgood Marshall. The three-hour-a-week lecture class covered “the formative era of American law,” with emphasis on the changes between the Revolution and the Civil War, especially regarding slavery. Famous cases like Marbury v. Madison and McCulloch v. Maryland were supplemented by doctrinal-specific readings addressing contracts, torts, property law, criminal law, and the status of women. The semester’s final three weeks were devoted to slavery, with recent articles by leading scholars like Paul Finkelman and Robert Cottroll playing a central role.

  Section III’s Civ Pro also met for three hours a week, with Northeastern’s Stephen Subrin replacing David Shapiro. Some students found Subrin likable, while others felt he was a letdown compared to Shapiro. Contracts with Ian Macneil continued for three hours a week while Three Speech reported an unsupported rumor that “the Scowling Scot” might remain at Harvard more than one year. Lisa Hay occasionally included a crossword puzzle, and one had the clue, “He pauses before speaking.” The correct answer was “Obama.”

  Rob Fisher had stopped attending Contracts—“It was so horrible that I basically skipped all of it”—but Barack remained a regular if sometimes tardy presence. Three Speech’s list of “highlights” included “February 21: Obama knocks on contracts door, 9:21 A.M.,” more than twenty minutes late. Ken Mack remembered that Barack was one of Macneil’s “favorite students,” and Macneil recalled that he had “such a commanding presence. . . . I was always a little too impatient in class, so if students went off the track, I would interrupt before I should. When I did that with Barack, he said ‘Let me finish.’ He wasn’t rude, just firm.’”

  Spring’s most weighty course was five hours a week of Property Law, taught by Mary Ann Glendon, a 1961 graduate of the University of Chicago Law School who had joined the Harvard faculty in 1987. She assigned the class A. James Casner et al.’s 1,315-page Cases and Text on Property, 3rd ed. On the first day, Glendon called on Barack, mispronouncing his surname by making it rhyme with Alabama. Barack corrected her. Paolo Di Rosa thought that “was kind of a nervy thing to do,” but Barack “had the confidence to do that without being rude about it.”

  Three Speech regularly captured how Glendon’s excellent sense of humor made for a relaxed classroom atmosphere. “I assume that a lot of you are in some relation to Harvard,” Glendon suggested. “What’s that relation? What? No, I don’t mean ‘serfdom.’” On another occasion, a student asked, “How long do you have to, you know, ah, live together, for these common-law marriages?” and Glendon drily responded, “Why do you ask?” Glendon was a widely popular teacher, and Rob Fisher remembered her as “an excellent professor” whom he and Barack visited for some “very open-ended, interesting intellectual discussions.” Fellow students recall both Barack and Rob as regular classroom participants. Ken Mack thought Glendon was “
very interested in what Obama had to say in class” and “liked him a lot.” Edward Felsenthal, a 1988 magna cum laude graduate of Princeton, would “vividly remember” Barack as someone who “talked all the time” in Property. There were some “heated battles between Barack and Mary Ann Glendon,” Felsenthal recalled, because Obama “objected to some pretty core tenets of the common law of property.” So “they went at it,” and “nobody else sparred like he sparred with her.” Rob remembered a time when Glendon asked why a court had set aside a condominium bylaw barring children as residents. Barack spoke up, saying, “Folks gotta live someplace,” and “everyone laughs,” but the crux of his response—the reasonableness standard—was indeed key. That “tells you a lot about how he was thinking about” legal questions while at Harvard, Rob explains. He and Barack “loved” Glendon’s “great” class, even though twenty years later Glendon would refuse to appear on the same platform with her former student because of her intense opposition to abortion.11

  In early February, the Harvard Law Record and the Harvard Crimson gave front-page coverage to news that the student-run Harvard Law Review had elected an Asian American 2L as its new president and an African American woman as one of its two supervising editors. Crystal Nix, a 1985 Princeton graduate who had been a New York Times reporter prior to law school, was the first black person ever elevated to one of the Review’s top masthead positions.

  Far more controversial news landed a week later when Harvard president Derek Bok, a 1954 graduate of the law school who had served as its dean for three years before being elevated to the presidency in 1971, unexpectedly chose forty-four-year-old Robert C. Clark as the new law dean. Clark was “generally well-liked by students,” the Crimson reported, because he was an excellent classroom teacher, but some of his more liberal colleagues complained about the selection of the conservative law and economics proponent. In the Boston Globe and the New York Times, Gerald Frug called Clark “a terrible choice” and Morton Horwitz denounced the selection as “a disaster for the law school,” asserting that Clark had opposed the appointments of women and minority professors. Clark rebutted Horwitz’s claims as “untrue” and “terribly unfair,” while three more professors attacked Clark. In contrast, prominent liberal constitutional scholar Laurence Tribe spoke positively about Clark, and a Wall Street Journal editorial praised the selection. Several weeks later the controversy seemed to subside when the faculty unanimously promoted Randall Kennedy and Kathleen Sullivan to full professor, the third black male and the sixth white woman holding tenured appointments.12

  At 12:30 P.M. on Thursday, February 23, the 1Ls’ exam grades were finally distributed. Barack and Rob had mixed reactions. In David Rosenberg’s Torts, Rob earned a straight A, and Barack something similar, but in Richard Parker’s Crim Law, Rob received only a B+, and as he remembered, “Barack and I both didn’t like the grade we got.” Many classmates would have been overjoyed to receive a B+, as they confronted lower grades than they had ever before received. For some, the “effect was devastating,” but not so for Barack and Rob, who plunged into the Ames Moot Court assignment that would culminate with a faux oral argument on Thursday evening, March 23, the night before spring break began.

  The ungraded Ames exercise had four written assignments: an initial “issues analysis” of the faux case, an outline of the brief to the three-judge faux court, a draft of the brief, as well as the final brief. Throughout the six weeks, students had four conferences with Scott Becker, the twenty-five-year-old 3L from Illinois who had led their fall Legal Methods class and was now the teams’ adviser. Barack and Rob took opposing sides, with Mark Kozlowski as Barack’s partner and Lisa Hertzer as Rob’s. Their case involved two issues related to inside information and the stock market: the first was whether a clerical employee had violated the Securities Exchange Act of 1934 in buying stock based on a research report she had proofread, and the second was whether sharing that information with a friend with whom she then twice purchased stock represented a conspiracy punishable under the RICO Act of 1970. Each student team was given a twenty-two-page faux indictment of the two defendants, “Janine Egan” and “Jennifer Cleary,” that gave the facts that had led to their convictions, which were now on appeal.

  Early on, Barack and Rob took the exercise “extraordinarily seriously,” Mark thought, and exhibited great determination to win the competition. But once it sank in that it was ungraded, their emerging desire to graduate magna cum laude—5.80 or better, with 6 representing A minus—took precedence. Rob knew that for Barack “it was very important to him to get magna cum laude . . . to demonstrate that things”—i.e., a Harvard Law School diploma—“weren’t given to him” as a result of how affirmative action may have helped him win admission. Mark Kozlowski realized that Barack and Rob “both decided they were going to make magna cum laude,” and that made them “less serious about” the Ames exercise as it proceeded.

  In advance of the two pairs’ oral arguments before Professor Hal Scott and two other faux judges, Mark and Barack completed their thirteen-page brief, with Barack writing the insider trading argument and Mark handling the RICO question. Barack contended that Egan’s work “inevitably” and “necessarily” would have made her aware that the materials she had proofread were nonpublic information, which she then misappropriated in violation of the 1934 statute. Barack flubbed badly in referencing the U.S. “Court of Appeals of the Second District,” when he should have written “for the Second Circuit,” and a careful eye would have caught misspellings and bad grammatical errors, such as “recieve,” “the harm done by insider trading are diffused,” and “employes like Egan regarding the in no way mitigates.” It was visibly sloppy work, especially compared to what Mark offered in the RICO section. “The Egan-Cleary enterprise victimized not merely” Egan’s employer, they argued in conclusion, “but the integrity of the securities market as a whole.” Oral argument turned into “a bit of a fiasco,” Kozlowski remembered, when he “got into a fight” with Professor Scott. “Barack was somewhat angry with me afterward,” Mark recalled, but “by that point” both Barack and Rob were happy to leave moot court behind them.13

  That same day, Ian Macneil received a letter from the Women’s Law Association, complaining that Section III’s Contracts reading earlier that week had contained sexist material. In dealing with a convoluted contracts problem known as “the battle of the forms,” Macneil’s casebook invoked the phrase “jockeying for position” and then quoted a couplet from Byron’s “Don Juan”: “A little still she strove, and much repented, / And whispering, ‘I will ne’er consent,’—consented.” Given Section III’s history with Macneil, some classmates knew as soon as they read those lines that controversy would follow. Bonnie Savage, the WLA chair, wrote, “Repeated instances of sexism in both your contracts textbook and your classroom discussions have been brought to the attention of the Women’s Law Association.” She said the Byron quote reflected “sexist attitudes” and “has no place in a contracts textbook.” Indeed, “by using sexist language, you encourage sexist thought and, in essence, promote hostility against women.”

  Macneil later acknowledged, “I knew the class considered me a first-class bastard,” but the WLA aspersions were “a bolt out of the blue.” When classes resumed after spring break on Monday, April 3, every member of Section III and every member of the law school faculty received an eight-page, single-spaced letter of rebuttal that Macneil addressed to the WLA. “Throughout the year I have had a great many complaints about the course from students of both sexes,” but only two had anything to do with gender, and at the December 7 grievance session, “not a word was said about any alleged sexism.” Macneil declared that “this whole affair . . . reeks of McCarthyism” and said its roots lay in his efforts “to insist that students act like professionals in the classroom respecting participation, preparation, attendance, and promptness.” Two days later, Macneil reiterated his mandatory sign-in policy, saying he had referred the names of three regular abse
ntees to law school administrators. A number of students spoke up in support of Macneil, and others asked about the upcoming, much-feared final exam.

  A week later, the Boston Globe published a lengthy story, highlighting “Macneil’s tough classroom manner” plus “his volatile temper and argumentative style.” The Globe quoted Bonnie Savage as saying the WLA feared Harvard might give Macneil a permanent appointment. More significant, Jackie Fuchs told the paper that Macneil “goes out of his way to avoid being sexist,” and that she, like a good many other Section III women, felt that WLA’s “letter was really out of line.” The Harvard Law Record’s own extensive coverage included multiple students noting that they had been given no notice that the law school’s long-dormant attendance policy might suddenly be enforced.

  Within Section III, the news coverage generated something of a pro-Macneil backlash. Brad Wiegmann remembered feeling badly for Macneil because “people were treating it as if it was the civil rights movement over whether you had to attend your Contracts class.” Lisa Hay believed Macneil “got a raw deal” from Section III, and David Troutt agreed he was “a decent guy” whose relational view of contracts “actually was probably a good theory.” Among students who later became contracts lawyers, some, like David Attisani and Shannon Schmoyer, said that Macneil’s course had been of no professional value, but an equal if not greater number strongly disagreed. Steven Heinen “really appreciated his very practical approach to contracts,” and said Macneil’s teaching has “served me well” in later years. David Smail, who would become general counsel of a prominent international hotel corporation, remembers Macneil as “a pompous asshole,” but “as much as I despised the man,” Macneil’s “relationship approach to contracts is one that I really fervently believe in, and I preach it every day in my business.” As a general counsel, “you’re living with the contract rather than just drafting it,” and Macneil’s perspective “is a very powerful way of looking at contracts.”