The campaigns build their legal brain trusts.

The law, lawyers, and the court.
Nov. 26 2007 7:18 AM

On the Advice of Counsel

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

(Continued from Page 1)

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.

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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.)

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