On the Advice of Counsel

The campaigns build their legal brain trusts. Plus: What did all the lawyer-candidates get on their LSATs?

Ted Olson is the chairman of Rudy Giuliani’s legal team

I asked the major presidential campaigns two questions this week, one a bit frivolous, the other not. The first was suggested to me by two playful readers: Hey, all you lawyers—Clinton, Obama, Edwards, Giuliani, Romney, and Thompson—what was your LSAT score? The more serious question, which I asked all the lawyers plus John McCain: Who advises you about policy matters that are legal in nature?

From my queries I’ve learned a couple of things. The first I suppose I already knew: It’s almost always better not to talk about how you did on the LSAT. If you’re a particular kind of recent law school graduate, your score decorates your résumé. But the rest of us (me included) either block out our scores or refrain from bragging about them. The candidates either outright ignored my queries or tried to figure out whether anyone else was talking. In the end, I got nada. Given that some of them are refusing to fully disclose their health and financial histories, the LSAT mystery is a minor one. On the other hand, it seems to me more relevant to their capabilities than whether pearls are better than diamonds or a Yankees fan can root for the Red Sox. So, I offer it up to the moderators of the next debate or for the next late-night TV interview. Jon Stewart and Stephen Colbert, if you ever make it back on the air, find out whether Hillary bested Barack and Rudy on a test that they all had to take!

And now on to substance, and my second discovery: Republican campaigns like to talk about legal advisers more than Democratic ones. With the exception of John McCain, whose campaign never replied to my cascade of e-mails, the major GOP candidates had spiffy lists of important-sounding lawyers and law professor supporters all ready to go.

Giuliani has announced his Justice Advisory Committee not once, but twice, and his list is the most star-studded on the Republican side. His legal team is also likely to be the busiest—their job is to telegraph their man’s abundant willingness to pick Supreme Court nominees who will eat Roe v. Wade for breakfast. To that end, the chairman of Giuliani’s committee is Ted Olson. With his record of Clinton baiting and Bush v. Gore litigating, Olson was viewed as too partisan to be Bush’s choice for attorney general this fall. This makes him perfect for Giuliani’s current needs. Accompanying Olson are Miguel Estrada, the former assistant to the solicitor general who became a cause célèbre on the right when he withdrew his name from consideration for an appeals court seat after the Democrats blocked his nomination. Also on Giuliani’s list: Steven Calabresi, a founder of the Federalist Society; Larry Thompson, who was deputy to former Attorney General John Ashcroft; and Maureen Mahoney, a former deputy solicitor general and top appellate lawyer. In all, among 24 lawyers I counted nine stints at the Department of Justice, three associations with the Federalist Society, one with Ken Starr, and one with Newt Gingrich. Also on board is my very own torts and antitrust professor George Priest, whose pro-life credentials may be shaky, but who can field all the law and economics questions Giuliani will be asked on the stump.

Fred Thompson has a posse of law professors in his corner. They include a bunch of smart folks who blog at the Volokh Conspiracy—Eugene Volokh of UCLA, Jonathan Adler of Case Western, Orin Kerr of George Washington University, and Todd Zywicki of George Mason. This struck me as sort of surprising, since I’ve gotten used to thinking of Thompson as, well, sort of foolish. So I called professor Volokh and asked what he liked about his guy. Volokh said that he thinks Thompson has good “instincts” on legal issues. “He takes federalism seriously, and he seems to have a fairly deep-seated sense that there is a real difference between state and federal power,” Volokh said. He also likes Thompson’s stance on the First Amendment and political speech better than McCain’s sponsorship of campaign finance reform, and prefers Thompson’s position on individual gun ownership (he’s for it) to Giuliani’s (he used to be against it).

Thompson also has the support of Victoria Toensing, once counsel to Barry Goldwater on the Senate intelligence committee, later a blanketer of the airwaves about the tawdriness of the Lewinksy affair, and most recently a supporter of Scooter Libby. Toensing argued that the law couldn’t have been broken when Valerie Plame’s cover as a CIA agent was blown because her status wasn’t really covert. The jury who convicted Libby disagreed. Still, by signing up Toensing, Thompson is aligning himself with the strong sentiment in the GOP against special prosecutors.

On to Mitt Romney. The academics at the top of his list are Doug Kmiec of Pepperdine, who did time in the Office of Legal Counsel for Presidents Reagan and George H. W. Bush, and Mary Ann Glendon of Harvard, who writes forcefully against the expansion of abortion rights. Romney’s favorite credentials seem to be clerkships for Justice Anthony Kennedy and for Judge Laurence Silberman, conservative lion of the D.C. Circuit. Bradford Berenson, Bush’s former associate White House counsel, has both, plus the Federalist Society. He has also been a talker since leaving the Bush administration, giving great quotes to Charlie Savage for his recent book, Takeover. (Berenson said, for example, that David Addington, counsel to Dick Cheney, relished presidential power so much that he “would dive into a 200-page bill like it was a four-course meal.”) Among 28 lawyers, I counted eight from Bush’s Department of Justice or White House, three Kennedy clerks, two Thomas clerks, two Alito clerks, and one Scalia clerk. Plus Jay Sekulow, who was one of the Four Horsemen who are supposed to have engineered John Roberts’ nomination.

Now for the Dems. From Obama and Edwards, I got shorter lists. Since the campaigns haven’t posted them, I will: Obama’s is here, and Edwards’ is here. From Hillary Clinton’s campaign, I got no response at all, despite repeated cajoling and eventually begging. Either there are no lawyers whose policy views Clinton cares to hear, or too many to have yet whittled down. The Democrats, it seems, at the moment aren’t as interested in dropping well-known legal names to court or reassure a particular constituency. They’re not eagerly aligning themselves with Bill Clinton’s Justice Department or the clerks of the more left-leaning justices, or with the American Constitution Society, which aspires to be the liberal counterpoint to the Federalist Society.

Standing with John Edwards is renowned civil rights lawyer Julius Chambers, Harvard bankruptcy expert Elizabeth Warren, and former Massachusetts Attorney General Scott Harshbarger, who in that capacity won a big payout for the state from the tobacco companies. (ADDENDUM: Warren says she doesn’t exclusively advise Edwards and hasn’t endorsed him. More here.) Edwards’ lawyers telegraph his concerns about inequity, poverty, racial division, and consumer concerns. I was surprised, however, not to find a big-name labor lawyer among the group.

Obama looks from his list like a darling and a devotee of the legal academy. And within those halls, he’s got some range. There’s Cass Sunstein, advocate for judicial restraint and minimalism—the idea (not especially persuasive, in my view) that judges should refrain from exercising too much power. But there’s also Laurence Tribe, who is a more stalwart backer of a forthright liberal view of the Constitution (and who parries Olson on Giuliani’s team, because Tribe helped litigate Bush v. Gore for the Democrats). Obama also has Christopher Edley, the dean of UC-Berkeley’s law school, who has written thoughtfully and moderately about affirmative action, and Ronald Sullivan, who teaches at Harvard * and is a real live criminal defense lawyer for clients who can’t afford one.

It’s a something-for-everyone list, rather than one that nails Obama down. At this stage of the campaign, for a Democrat, that’s probably smart. As for the lawyers, what do they risk by tossing their names in now, if their candidate doesn’t prevail in the primary? It’s a trade-off: Getting in early is a plus (if, for example, you’re lobbying for a court appointment). But it’s generally not a disaster to bet wrong, as long as you don’t engage in personal attacks. Expect defections later—lawyers are pretty good at changing horses.

Correction, Nov. 26: The article originally stated that Ron Sullivan teaches at Yale law school. He now teaches at Harvard. (Return to the corrected sentence.)