Special Section: Taking the Bench
On the Potomac, a crimson tide
In confirmation hearings, Harvard lawyers are everywhere
Senators on both sides of the Judiciary Committee turned to HLS professors when Chief Justice John G. Roberts Jr. '79 and Associate Justice Samuel A. Alito Jr. were up for confirmation.
Charles Fried and Laurence H. Tribe '66 sat side by side at the witness table, though they reached opposite conclusions while testifying at Alito's confirmation hearings Jan. 13.
Tribe warned that Alito would reduce to "a hollow shell" the Roe v. Wade decision establishing a right to abortion, while Fried predicted Alito would uphold it.
Fried also testified on behalf of Roberts during his confirmation hearing last September. Tribe had last appeared at Supreme Court confirmation hearings in 1987, helping to lead the fight against Robert H. Bork's nomination and later testifying at the hearing for Anthony M. Kennedy '61.
Fried says his newspaper opinion pieces on behalf of Alito, which appeared before the hearings started, probably made more of an impact than anything he said to senators. "I hope they added to his sense of comfort," Fried said of Alito, who was his subordinate for a year in the Solicitor General's Office.
Fried and Tribe were hardly the only participants in the hearing room with a Harvard Law connection. Assistant Attorney General Rachel Brand '98 helped both nominees prepare for the hearings and sat behind them throughout their testimonies.
And two alumni, Sens. Charles E. Schumer '74 of New York and Russell Feingold '79 of Wisconsin, sat on the other side of the dais as members of the Judiciary Committee.
Three other Harvard Law professors, John Manning '85, Heather Gerken and David Barron '94 served as advisers.
Manning participated in mock hearings for both Roberts and Alito, mooting the two nominees.
Barron discussed constitutional questions with two Democratic senators prior to Roberts' confirmation hearings. He briefed Schumer in his Washington office and Edward M. Kennedy at his Hyannisport, Mass., home. Gerken was consulted by Kennedy prior to the Roberts hearings.
"What they're trying to do is just get a sense from people who follow constitutional law what are areas of importance to follow and how to elicit a meaningful response," Barron said.
Barron added he wasn't sure how much of his advice either senator took. But Schumer apparently liked it well enough to ask for a conference call with Barron prior to Alito's hearings.
After testifying at two hearings in less than five months, Fried had some advice for future witnesses. "As little attention as senators do or do not pay, they pay no attention when you're reading a statement," Fried said. "You should try to provoke questions, since they're more likely to listen if you're answering their own questions."
See also:
"May it please the Court"
For aspiring Supreme Court advocates, some hands-on experience
Friendly fire
Amicus briefs can help a party. They can also hurt.
Next: Getting it right
