A Note from the Dean
Dear Alumni and Friends:
As you read through the articles in this issue of Cornell Law Forum magazine you’ll likely be struck by the far-reaching impact of our faculty, alumni, and students who are practicing law at the highest levels. This issue focuses on the relationship between Cornell Law School and courts. Wherever you look, you see Cornell lawyers at work, from clerkships to the judicial-selection process to cases argued and won by Cornell Law School clinics at the highest court in the land. While not everyone takes part in clinics or seeks out clerkships, we are constantly striving to create more of these opportunities for our students because we know how valuable they can be.
As I’ve noted before, students in clinics gain practical legal skills and they learn to be
advocates, to speak for those who can’t speak for themselves, and to stand up to
injustice. And this was
certainly a great year to
participate in one of thirteen clinics or ten practicums, with significant victories in our Asylum and Convention Against Torture Appellate Clinic and the successful launch of our new First Amendment Clinic and Entrepreneurship Law Clinic. But the highlight was
surely Professor Sheri Lynn Johnson’s decisive victory
at the U.S. Supreme Court in Flowers v. Mississippi, overturning Curtis Flowers’s death sentence due to racial bias in the jury selection process. Our cover story for this issue gives a behind-the-scenes look at how this
momentous win came about and introduces the team of students and faculty in the Capital Punishment Clinic that made it possible. The 7–2 vote is about as close to consensus as one is likely to see in a death penalty case before this Court, which speaks to the powerful persuasiveness of Sheri’s advocacy and the effectiveness of her team, which included Professor Keir Weyble, who was co-counsel, and students Pablo Chapablanco ’19 and Sam Macomber ‘20. Their achievement is further proof that we are home to one of the best capital punishment clinics of any elite law school.
This was also a year in which we set another record with seventy students and alumni receiving judicial clerkships, including one at the Supreme Court, eighteen at U.S. Courts of Appeals, and twenty-seven at U.S. District Courts. In recent years, we’ve placed more emphasis on helping students secure clerkships and it’s encouraging to see our efforts pay off. Clerkships provide remarkable opportunities for our graduates to sharpen their skills, especially in legal research and writing, and they provide opportunities for lifelong mentorship and networking. Cornell Law School alumni judges have been a crucial part of our clerkship success.
The second feature article in this issue explores the deep and lasting legacy of Judge Joseph Tauro, LL.B. ’56, who served on the U.S. District Court for the District of Massachusetts for more than four decades. Over his tenure, Tauro hired forty-one Cornell Law School graduates as clerks, more than any other judge ever has. Following his death earlier this year, there was an outpouring of gratitude from many of our graduates who considered him a lifelong mentor and friend. The article on page 12 is a compilation of recollections and memories of Judge Tauro from many of our alumni, his daughter Beth Tauro ’87, and his good friend Supreme Court Justice Stephen Breyer.
You’ll find more evidence for the importance of mentorships and clerkships in our Profile article on Brett Mull ’15. Mull’s hard work and perseverance took her a long way, but having the guidance and encouragement of Bradley Wendel, associate dean for academic affairs and professor of law, gave her the extra boost she needed to excel academically and in her career. She recalls how she and Wendel struck up a conversation after class during her 1L year that “basically continued for the next two years. He quickly became a friend, mentor, and sponsor.” As the article explains, one mentorship lead to another as Mull was able to secure a clerkship with Judge Richard Gabriel of the Colorado Supreme Court, who was, and still is, a mentor and source of inspiration.
Also in this issue is an article about a unique and compelling discussion of the judicial selection process at Reunion 2019 between Leonard Leo ’89 and Ari Melber ’09, two high-profile alumni from different sides of the political spectrum. Leo is executive vice president of the Federalist Society and is nicknamed the “Trump Whisperer” for his role as the president’s adviser on Supreme Court and judicial nominations. Melber is host of MSNBC’s The Beat with Ari Melber and is the chief legal correspondent for NBC News. The pair treated the overflow crowd of returning alumni to a respectful and wide-ranging conversation about “Judicial Philosophy and Advising U.S. Presidents.” The event was further proof that the Law School remains committed to maintaining an environment of intellectual curiosity and civil engagement across a diversity of viewpoints.
As we reflect on the achievements in the pages that
follow, I am grateful for the extraordinary engagement of alumni who play such a vital role in advancing our work. On behalf of everyone at the Law School, I thank you for your steadfast interest and support.
Eduardo M. Peñalver
Allan R. Tessler Dean and Professor of Law
In June, the U.S. Supreme Court overturned the 2010 conviction of Mississippi death row inmate Curtis Flowers, who was represented by Professors Sheri Lynn Johnson and Keir Weyble. Flowers, who is black, had been tried six times by the same white prosecutor for
a 1996 quadruple murder that he says he did not commit.
On the morning of July 16, 1996, four employees of the Tardy Furniture store in downtown Winona, Mississippi, were shot in the head, their bodies left sprawled on the floor or slumped over the counter.
Seven months later, Curtis Flowers, who had been fired from the store two weeks before the murders, was arrested and charged with the quadruple homicide. Flowers, twenty-six at the time, had no criminal record, and there was no forensic evidence linking him to the killings.
Yet over the next fourteen years, the Montgomery County prosecutor, Doug Evans, tried Flowers, an African American man who had grown up in Winona, six times for the execution-style slayings. The first three trials ended with a conviction and death sentence but were overturned by the Mississippi Supreme Court because of prosecutorial misconduct or because prospective jurors had been excluded based on their race. The next two were mistrials, and the sixth resulted in a conviction and death sentence.
In 2011, after Flowers was found guilty in his last trial, two Cornell Law School professors—Sheri Lynn Johnson and Keir Weyble—agreed to take over the appeal of the case. Working with two students from the Law School’s capital punishment clinic, they took the case to the U.S. Supreme Court, which on June 21 overturned Flowers’s conviction. In a 7–2 decision, the Court concluded that Evans had violated the U.S. Constitution by repeatedly excluding African Americans using peremptory challenges during jury selection.
While Flowers is imprisoned and may face a seventh trial in Mississippi, the Supreme Court decision will have a significant impact on the issue of racial bias in the selection of jurors. “The Supreme Court has had a number of cases in the past four or five years where they’ve had prosecutors primarily striking black jurors,” said John Blume, the Samuel F. Leibowitz Professor of Trial Techniques and director of the Cornell Death Penalty Project. “I think the Court is trying to send a message: ‘Don’t do this. Take your peremptory challenges in terms of whether there are legitimate reasons to strike jurors, but don’t cheat to win.’”
Appeal to the Mississippi Supreme Court
The Flowers case landed at Cornell when David Voisin, a Mississippi lawyer, asked Johnson and Weyble whether they would handle the defendant’s appeal. In the close-knit network of capital defense lawyers, Cornell Law School is well known because it is one of fewer than ten law schools nationwide that offer a capital punishment clinic fully staffed by faculty.
“I think it’s very hard to pull off,” said Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law. “You have to have the right people, and they have to have a profile within death penalty advocacy to maintain a flow of cases through the law school. And that requires exceptional commitment on their part.”
Voisin knew Johnson and Weyble because they both have deep ties to the capital defense community. Johnson, the James and Mark Flanagan Professor of Law, is a renowned expert on the interface of race and issues in criminal procedure. And Weyble, clinical professor of law, is a nationally known expert in post-conviction litigation and has represented prisoners in capital cases across the South for more than twenty years.
When Voisin suggested they take on the Flowers’ appeal, both were attracted to the case because of its focus on racial issues in jury selection and the sheer number of trials involved. “I’d never encountered another case that went to trial six times,” Weyble said. “That alone made my ears perk up.”
As they began researching the case, they found the evidence that racial discrimination had occurred during jury selection to be overwhelming: Out of the forty-three African Americans in the jury pool for Flowers’s six trials, Evans struck forty-one. And in the sixth trial, he struck five out of six.
Not only did Evans eliminate nearly all prospective jurors who were African American, he also engaged in disparate questioning of the potential jurors. In the last trial, Evans asked each struck black prospective juror twenty-nine questions, while asking each seated white juror one question.
“The numbers are extraordinary all by themselves,” Johnson said. “For whatever reason, Evans wanted a white jury and did whatever he could to get his white jury.”
Another issue that became a focus in their initial appeal was the weak evidence Evans used in the case. For example, a witness who was near the crime scene the day of the murders could identify the perpetrator only as being black and initially named someone else as the suspect, Johnson said.
“He only made identification of Mr. Flowers after there were various suggestive comments made,” Johnson said. “So a variety of factors made this an unreliable identification and in our view should have meant that the identification should not have gone to the jury at all.”
When the Mississippi Supreme Court reaffirmed Flowers’s conviction in his sixth trial, Johnson and Weyble appealed to the U.S. Supreme Court, but it remanded the case back to the lower court. The justices asked the Mississippi Supreme Court to reconsider the case in light of the U.S. Supreme Court’s 2016 decision in Foster v. Chatman, which overturned the conviction of a Georgia death-row inmate after he obtained documents showing that prosecutors had highlighted the race of prospective black jurors and written “definite NO!” or “No Black church” after their names.
The Mississippi Supreme Court, however, did not find Foster relevant to Flowers’s conviction in his sixth trial. “They pasted in their previous opinion that ignored the prosecutor’s history,” Johnson said. “They pasted it in word for word.”
Second Appeal to the U.S. Supreme Court
As they prepared their second appeal to the U.S. Supreme Court, Johnson and Weyble enlisted Pablo Chapablanco ’19 and Sam Macomber ’20—students in the Capital Punishment Clinic—to work on the case. During the fall ’18 and spring ’19 semesters, Chapablanco and Macomber worked late into the night, poring over the jury selection records and preparing a 600-page research document that would become an essential part of the arguments made to the Supreme Court. “They did extraordinary work on behalf of Curtis Flowers, combing through the voir dire and all of the statistics,” Johnson said.
Chapablanco, now a clerk for a U.S. district court judge in El Paso, remembers being pessimistic that the Supreme Court would grant their petition for a writ of certiorari. Each term, the Supreme Court receives between 7,000 and 8,000 new cases and selects only about eighty of them to review with oral argument.
But during the summer of 2018, Chapablanco changed his mind when American Public Media began airing a series on the case on the podcast “In the Dark.” “When we started listening to the podcast and people started to say how good it was and how it was going to win an award, that’s when we realized that we’re going to be in the spotlight and the work we’re doing is actually going to be scrutinized,” he said. “It was just a huge help because it opened up a lot of possibilities for us.”
What also helped attract the justices’ attention was the circumstance of a defendant having been tried for the same crime six times. When they filed their petition to the Supreme Court, however, it focused on a single issue: whether the prosecutor deliberately used race to exclude prospective jurors in the sixth trial.
In its 1986 decision in Batson v. Kentucky, the Supreme Court had ruled that prosecutors may not use peremptory challenges to exclude jurors solely on the basis of race because it violates the equal protection clause of the 14th Amendment.
In their petition, Johnson and Weyble pointed to another hallmark of racial discrimination in jury selection: the disparate questioning. While Evans asked both African Americans and whites about their relationships to Flowers and witnesses in the case, he asked only prospective African American jurors details about those relationships.
“The prosecutor dug very deep to find those potential biases in the jurors, but he did not ask those probing questions of white potential jurors,” said Macomber. “So the whole point was the prosecutor was striking jurors and giving some reason, and that was a pretext for race.”
On November 2, 2018, the Supreme Court agreed to hear Flowers’s appeal, five months after the legal team had filed its petition. The decision started the clock ticking on a deadline to file the brief on the case in forty days.
While they had accumulated a set of written arguments over their six years of work on the case, preparing a brief for the Supreme Court “requires a deeper dive” on the key issues, Weyble said.
“When the Supreme Court decides to hear a case, you’re often starting, briefing-wise, from scratch, or nearly from scratch,” he said. “You’re building a new written product, and that was the case, here. That takes a huge amount of time, especially in a case like this where so much turns on granular factual detail.”
On December 27, the team filed the brief, and began waiting for its day in court.
The Supreme Court Hearing
The line outside the Supreme Court steps began snaking around the block at 3:00 a.m. the morning of the hearing on March 20. Among the hundreds of people waiting for a coveted seat at the oral argument were Cornell Law students, supporters of Flowers, and avid listeners of the podcast.
At 10:06 a.m., Johnson, who had focused on the issue of race bias from the start of the appeal, began presenting her argument and quickly delved into the numbers in the case. “The only plausible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers VI with an unconstitutional end in mind, to seat as few African American jurors as he could,” she said.
Making her first appearance before the Court, Johnson was then interrupted by Associate Justice Samuel A. Alito Jr., who asked if she thought she would have a chance of winning the case solely on the basis of the striking of African American jurors in the sixth trial, without the history of the previous trials. Johnson replied, “The evidence still is clear and convincing that Mr. Evans acted with discriminatory motivation in this case, even if we set aside his history, and his—the reasons that he was unwilling to tell the truth in previous cases.”
Later in the argument, another answer to Alito’s question came from an unlikely corner of the Court—Associate Justice Brett M. Kavanaugh, who in a remark to the opposing lawyer, Jason Davis, a special assistant attorney general for Mississippi, said, “We can’t take the history out of the case.”
Over the course of the hourlong hearing, the questions posed by Kavanaugh and Alito are what surprised Johnson the most. “They’re very conservative justices, and so I would not have expected them to be sympathetic to any claim of a criminal defendant,” she said.
Before the hearing was over, Weyble said it was apparent that the decision would turn in their favor. “This case was not one of those where we had no idea,” he said. “It seemed pretty clear early on in the argument that the Court understood what was going on in the case.”
For the students who had worked on the case, the hearing gave them the opportunity to watch Johnson’s superb skills in oral argument. “She was absolutely amazing,” Chapablanco said. “She was really poised and she really addressed each part of the argument. She knew the facts back to back.”
What struck Macomber about the hearing was the contrast between the intimate setting of the courtroom and the starkness of the issues in the case. “Professor Johnson was so close to the justices, and they are just nine humans asking questions,” he said. “The room is so small, it feels almost conversational, but it was dehumanizing because during an hour of oral argument, no one after the introduction of the case mentioned Curtis Flowers’s name and no one noted the result of this decision is about life and death.”
When the decision was released last June, neither Weyble nor Johnson was surprised that it was written by Kavanaugh. In his thirty-one-page decision, he wrote, “In sum, the state’s pattern of striking black prospective jurors persisted from Flowers’s first trial through Flowers’s sixth trial.” He concluded that “we break no new legal ground. We simply enforce and reinforce Batson by applying it to the extraordinary facts of this case.”
The Supreme Court remanded the case back to Mississippi for “further proceedings,” which could result in a seventh trial. Evans hasn’t publicly stated whether he will try Flowers again, but has stated he remains convinced of Flowers’s guilt.
“There’s no question about [Flowers’s] guilt,” Evans said in an interview with reporters from the podcast “In the Dark.” “Courts are just like me and you. Everybody’s got opinions.”
If he does try Flowers again, however, he will have fewer witnesses to prove his case. In the past two years, a jailhouse informant who claimed that Flowers had confessed and a woman who claimed that she saw Flowers running from the murder scene have both recanted their testimony.
“The case has certainly gotten much weaker in the nine years since it was tried last,” said Weyble, who along with Johnson believes Flowers is innocent. “If I were a prosecutor, I would think pretty seriously about whether I’m just going to embarrass myself by trying this case again.”
The Supreme Court decision was not only a victory for Flowers but was also celebrated at the Law School, reaffirming the faculty’s commitment to representing death-penalty inmates. “There’s a lot of commentary from the profession that law schools are out of touch and not engaged with the profession,” Peñalver said. “I think Cornell’s distinction is that we can theorize and produce scholarship with the best of them, but also our most academically inclined scholars are deeply respective of practice. I think that’s something that all of the members of the community—current students, alumni, and faculty—can take pride in.”
Introduction by Eduardo M. Peñalver
Judge Joseph L. Tauro, LL.B. ’56, served on the bench of the U.S. District Court for the District of Massachusetts for more than four decades, enjoying the longest tenure of any judge on that court since Congress created the district in 1789. Appointed by President Richard M. Nixon in 1972, Judge Tauro became chief judge in 1992 and continued in that capacity until he took senior status in 2013. Among his many notable decisions, he was the first judge to hold the Defense of Marriage Act unconstitutional because it violated the equal protection rights of gay and lesbian citizens. He was also a champion of the rights of the most vulnerable, crafting decisions such as the Belchertown consent decrees that created national models for the treatment and care of those with developmental disabilities and mental illness.
When Judge Tauro passed away in November at age eighty-seven, he left behind a deep and lasting legacy at Cornell Law School. During his tenure, he hired forty-one Cornell Law School graduates as his clerks on the federal bench—more than any other judge ever has. Our graduates speak of him as a lifelong mentor and friend. Many have reached out to me with words of gratitude to honor him.
In the article that follows, we have compiled the recollections and memories of many of our alumni who clerked for Judge Tauro. In addition, his daughter, Beth Tauro ’87, has generously provided photographs of her father with his clerks and family members, as well as a short piece describing the moving memorial service for her father held in Boston this past June. Among the many luminaries who spoke at the memorial was Tauro’s longtime friend Supreme Court Justice Stephen Breyer, who graciously agreed to let us include excerpts from his tribute in this article.
Judge Tauro is survived by his wife June; children Joe Jr., Beth, and Christopher; and six grandchildren.
Excerpts from Justice Stephen Breyer’s Tribute
Joe Tauro was my friend. His office in the old courthouse was across the hall from mine. We would have coffee in the morning. We would talk. We would gossip. We would joke with each other. We would plot…
Joe taught me what it is to be a good judge…
A trial judge, he thought, helps people resolve their disputes after other methods have failed. He believed this strongly. It moved him. He managed to settle case after case, probably setting a world settlement record.
He believed that the basic purposes of the law are humane. And he was highly practical. That, as we well know, is why one day he left his courtroom and traveled to the Belchertown mental hospital, where he found the most appalling conditions.
He returned, and then, from the bench, entered order after order, eventually transforming what he had seen into dramatically improved care for the mentally ill.
No one will deny that Joe Tauro was strong willed. But he knew how to put his own strong desires and wishes to the side, in order to bring people together. That is not such an easy thing to do when those people are a group of Article III judges. But Joe had a special talent for doing so. And he invoked that talent when he was chief judge of the District of Massachusetts. He would listen to his colleagues, find common solutions, and help them to discover that they could and would work well together. That is why he was a great chief judge…
He used his own abilities, his heart and his head, to help his community. He did so, not so much through what he said, but through what he did.
A Note from Beth Tauro ‘87
One of the first calls I made when my dad died was to John Nadas ’76. He said, “Remember we law clerks are 100 strong and ready for anything your family needs.” My father’s law clerks were his family and they became part of our family. Visits and lunches at Dad’s office were a highlight for his children and grandchildren. We witnessed his love and respect for his job, his law clerks, judicial colleagues, and staff. Together we gathered on June 7, 2019, at the glorious John Joseph Moakley U.S. Courthouse in Boston to celebrate the man we called Dad or Gramps, and they called Judge. As his family, we were surrounded by the incredible energy of over 500 law clerks, judges, friends, family, and people whose lives were impacted by my dad’s decisions. Chief Judge Patti Saris, supported by her colleagues, planned an incredible celebration. Patti recalled my dad’s many lessons when she joined the court as “a baby judge,” from the importance of an independent judiciary and its role in protecting the U.S. Constitution to the value of collegiality.
Each speaker represented a moment in my dad’s judicial career: Justice Stephen Breyer, his colleague and dear friend; Governor Michael Dukakis, governor during the Belchertown consent decrees; Michael Ponsor, a law clerk and later judicial colleague; Mark Brodin, his first law clerk; Rob Manfred, B.S. ’80, law clerk and baseball soulmate; and Meg Larkin and Ron Ghatan ’11, clerks who met in chambers and later married. Their stories conveyed the impact of my father’s many decisions that changed the world for so many, interpreting the law and its constitutional protections to secure rights for people who otherwise did not have a voice. They captured his integrity, humor, fire, care, dedication, ability, spirit, and how very much he meant to them. My dad’s portrait stood next to the podium. As each spoke, I could imagine his painted smile come to life because of the words he heard, the people he saw, and the honor and humility he felt to be remembered in this most magical manner. The special session of court adjourned to a reception outside on Boston Harbor. My dad would have loved this party filled with his favorite people, smiling, laughing, chatting, eating a Brown Bear cake, serenaded by big band and Frank Sinatra music, and feeling the sea breeze on a gorgeous summer day. I am very confident he was there in spirit watching over us all!
Reflections on Judge Joseph L. Tauro:
Leonard Leo ‘89 and Ari Melber ‘09 Discuss Judicial Philosophy and Advising U.S. Presidents at 2019 Reunion.
By some accounts, Leonard Leo ‘89 is responsible for almost half of the justices on the U.S. Supreme Court. Leo has been nicknamed the “Trump Whisperer” thanks to his unparalleled role advising President Donald Trump on judicial appointments, as he previously advised George W. Bush, and his influence on the Court will persist for decades.
This past June as Cornell Law alumni returned to campus for Reunion, Leo sat down with Ari N. Melber ’09 in front of an engaged—and at times vocally skeptical—audience in Myron Taylor Hall to discuss Leo’s judicial philosophy and what happens behind the scenes as presidents, lawyers, activists and wonks determine the future of our judiciary.
“Leonard is such a fascinating person for us to hear from today,” Melber said. “Although there is debate about his work, some might even say controversy, there’s no debate about the enormous commitment he has to his work . . . , as well as his influence.”
Leo and Melber come from opposite ends of the political spectrum, which made for a lively and pointed discussion. Leo is the executive vice president of the Federalist Society, the nation’s most prominent organization of conservative and libertarian jurists and attorneys and a major voice for limited government and an originalist reading of the Constitution. After his time at Cornell, during which he founded the university’s chapter of the Federalist Society, Leo got his first taste of the Supreme Court confirmation process when he helped his close friend Clarence Thomas through his notoriously contentious fight to become a high court justice. Leo subsequently played key roles in the selection and confirmation of Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Melber is an Emmy-winning journalist and the host of MSNBC’s The Beat with Ari Melber, and is also MSNBC’s chief legal correspondent and a legal analyst for NBC News.
The speakers were introduced by Eduardo M. Peñalver, the Allan R. Tessler Dean of the Law School and Professor of Law. “Today’s event is a reminder of the importance at the Law School of our core values of engagement and civility, something that seems increasingly rare in our hyperpartisan and bitter national discourse,” Peñalver said. “Our long-standing tradition of civility and collegiality and our commitment to diversity of belief and viewpoint served us well during these past few years, and, indeed, they make today’s event possible.”
Peñalver also took the opportunity to give a shout-out to Cornell University alumni Peter Coors and Dr. Marilyn Coors, present in the audience, for enabling further such discussions between public figures with divergent viewpoints. The Peter and Marilyn Coors Conversation Series kicked off in September with a talk on executive power between Neal Katyal, the Paul and Patricia Saunders Professor of National Security Law at Georgetown University and a partner at Hogan Lovells, and George T. Conway III, of counsel in the Litigation Department of Wachtell, Lipton, Rosen & Katz. “I think today’s event would be right at home in that Coors Conversation Series,” Peñalver said.
George W. Bush years, Leo had served in a sort of unofficial brain trust on judicial appointments—sometimes dubbed the “four horsemen”—together with religious conservative advocate Jay Sekulow; C. Boyden Gray, President George H. W. Bush’s White House counsel; and Reagan-era Attorney General Edwin Meese III. “This was really the first time we had a well-funded, well-organized outside movement to support the confirmation of judges,” Leo said.
Leo’s role in the Trump and Bush administrations isn’t exactly something that he got by answering a job ad. As Melber noted, “You basically fashion this role, and nominees of the Republican Party and presidents . . . come to you.” During the
Leo got the call that would eventually make him Trump’s judicial consigliere in 2016 on the day of Justice Antonin Scalia’s death, just hours before Trump was set to go up against the other Republican candidates in the GOP’s first primary debate. Don McGahn, the Trump campaign counsel at the time and later the White House Counsel, was on the other end of the line.
“He says, ‘Look, this is going to come up in the debate. And Trump wants to mention a couple of names of people who would be the types of folks he would nominate to the Court,’” Leo remembered. This was something new, “downright edgy” as Leo put it—while George W. Bush had promised to appoint justices in the mold of Thomas and Scalia, no president had ever actually named prospective nominees like that beforehand. The resulting discussion ended with Trump mentioning two reliably conservative U.S. Court of Appeals judges, Diane Sykes of the Seventh Circuit and Bill Prior of the Eleventh Circuit, as exemplars of his type of potential Supreme Court nominee.
Candidate Trump already had a theoretical idea of how much the Supreme Court mattered, Leo said, but as he went out on the campaign trail, Trump started to realize that a large portion of voters cared deeply about the courts, especially with the vacancy caused by Scalia’s death and the ongoing Merrick Garland controversy. Then, in April, Leo was invited to Washington, D.C., and ended up in a room with Trump and McGahn. After Trump spent some time picking Leo’s brain on the high court—on everything from the battles over the Affordable Care Act to why conservatives had been so mad about David Souter—the candidate sprung the idea that would develop into “the list”: what if Trump named every person he would consider nominating to the Supreme Court. It had never been done before! “And so he said, ‘Well, is that a reason for not doing it?’” recalled Leo. “I said, ‘Well, no. Why do you want to do it?’ And he said, ‘Well, nobody knows who I am on this issue. And this is a way of explaining to people what it is I would do in a very clear way.’”
Of course, Leo hadn’t gone into the meeting blind. He had gotten a tip-off about Trump’s idea and had done some list-making of his own. At one point, he said, ‘So what kinds of people would you put on that list?” Leo said with a smile. “I said, ‘Well, I happen to have a . . . You know, would you like to see it?”
Although Trump didn’t immediately commit to the eight judges Leo recommended at the time, the list would eventually swell to more than two dozen names, including Gorsuch and Kavanaugh, over a series of revisions to which Leo and others contributed, and would play a significant role in convincing skittish traditional conservatives that Trump shared their priorities.
Despite the president’s infamously brash Twitter persona, Leo said Trump seems genuinely inquisitive about the intricacies of the Supreme Court. In contrast to George W. Bush, who Leo says was not preoccupied with the judiciary in between appointments, Trump is always turning potential appointees over in his head and keeping track of the score, according to Leo.
During the Q&A portion of the event that followed his conversation with Melber, Leo pushed back at pointed questions about the Trump-era Supreme Court appointments. He rejected as “incredibly offensive” the idea that Justice Anthony Kennedy was pressured to retire in order to clear space for another Trump appointment. And, he portrayed Senate Majority Leader Mitch McConnell’s decision to deny Garland a confirmation vote as a natural outgrowth of the growing politicization of the confirmation process stretching back to the 1980s. “There was no question that if the shoe was on the other foot, Senator [Chuck] Schumer made it very clear, as did Senator [Joe] Biden some years ago, that they would do the same thing that Senator McConnell did,” Leo said. “What you were doing is asking the leader of the Republican Party to unilaterally disarm, where, over a period of over twenty-five years, Democrats consistently made very tactical decisions about hardball tactics they wanted to engage in in the confirmation process.”
Leo’s influence is undeniable, and it’s tempting to think of him as an éminence grise wielding power over appointments from behind the scenes. But he cautioned that there are limits to the influence of outside forces like himself. No matter whom advisers and senators and the White House Counsel are pushing for, the president makes the final decision and bears the final responsibility for judicial nominations.
Likewise, a nominee will have access to all of the handlers and advisers and moot courts that they want, but they will ultimately be the one faced with answering questions in the confirmation hearing.
Brett Kavanaugh’s hearing was the most contentious Supreme Court confirmation process since that of Clarence Thomas, and Leo’s championing of a candidate who was confirmed to the high court despite sexual assault allegations against him was bound to come up.
When questioned by Melber on what he thought had happened, and if the accusations were disqualifying if true, Leo demurred at first, saying, “I’m not going to judge the people who made the allegation. All I can tell you is the issue was put into play. And it was incumbent upon the nominee to explain himself and to defend himself.”
Melber pressed him further, noting that if sufficiently problematic allegations were brought against a candidate, defenders of the nominee like Leo might reconsider. “I would clarify that in one way, though,” responded Leo. “We’re not just fighting to defend. We’re fighting to figure out the truth. I mean, there is a point, this was the case during the Thomas confirmation, as well as the Kavanaugh confirmation. When an allegation is made, you take it seriously. And you have to ask certain questions, you have to obtain certain information, you have to make certain decisions, you have to put the nominee on the spot. And you have to make sure that everyone is comfortable with where things stand.”
“So yes, there comes a point where you say, ‘Okay, it’s time to defend.’ But there is that interregnum period,” Leo said. The publication of a Washington Post article in which Christine Blasey Ford accused Kavanaugh of sexually assaulting her while they were both in high school, four days before a scheduled Senate vote on Kavanaugh’s confirmation, prompted some reflection. “Between then and a couple of days later, there’s a lot of explaining to do, and there’s a lot of analysis that has to be done,” Leo said.
Kavanaugh passed Leo’s test. And Leo got back to the task of nudging the Supreme Court ever toward his liking, one justice at a time.
This June, Tom Bruce retired after nearly three decades at the helm of the Legal Information Institute. During that time, LII has thrived under his visionary leadership, delivering free legal information to millions of people around the world.
Within five years of the founding of the Legal Information Institute (LII), more people were visiting the online resource than had attended Cornell Law School in its entire history. The first Internet site to provide free access to legal information, the groundbreaking LII has been directed by Tom Bruce from its inception to his retirement this year. On June 4, in Washington, D.C., friends and colleagues gathered at the offices of Fastcase, Inc., to, as Bruce put it, break a bottle of champagne over his head and send him down the slipway.
Bruce joined the Law School in 1988 as the director of education technologies. In 1992, along with then-dean Peter Martin, he founded the LII. Bruce wrote much of the original software used at the Institute, including Cello, the first Web browser for Microsoft Windows.
Speaking at the retirement celebration, Eduardo M. Peñalver, the Allan R. Tessler Dean and Professor of Law, noted, “I think Tom knows this about me: I like to mark time in Whitesnake years. So 1988 is . . . the second year of Whitesnake; that was the year they released their second huge hit —I’m sure you all know —‘Is This Love?’”
He added, “I also like to mark gradations of success in terms of Whitesnake . . . I’ll come back to [that].”
“Cornell and LII have been very fortunate to have Tom at the helm of LII for its first twenty-five years,” said Peñalver. “LII has thrived under his leadership, growing from the simple idea of free access to legal information for all people into a powerhouse that delivers free legal information to millions of people around the world. At the time LII began, there were only 22 million users on the Internet worldwide. These days, it’s visited by over 30 million users every year from over 200 countries.”
Peñalver noted that incoming codirectors Sara Frug and Craig Newton would be building on the firm foundation established by Bruce—and aided by LII’s first endowment, a fellowship created in Bruce’s honor with generous support from Justia.
“And where will Tom be while Sara and Craig and the fellows are steering LII through the shoals of innovation in a fast-moving world of legal tech? He will be enjoying his retirement, secure in his knowledge that—unlike most of us—[he] really is bigger than Whitesnake. Whitesnake’s greatest triumph, the 1987 hit ‘Here I Go Again,’ has been viewed on YouTube a mere 56 million times over the past ten years. In that same period, LII has lapped Whitesnake four times over.”
In his own remarks, Bruce drew parallels between his tenure at LII and his previous work as a stage manager (though not for Whitesnake), noting of the Institute, “In the end, what has made it rewarding is what it does for other people. That makes it an awful lot like putting on a big show that reaches an audience of millions, and I have been a stage manager for that, just as I worked on other, much shorter-running shows in my first career, including, God help me, one called ‘Got Tu Go Disco.’”
Bruce’s theater experience, he said, fueled his collaborations first with Martin and more recently with his successors. “Collaboration has continued to be the secret sauce that has made us successful in building a big website. But that was never the hardest or largest part of the work.”
The hardest part, he said, was establishing and maintaining the creative and innovative conditions under which the work of LII could be done. “That is what I am the second-most-proud of having done for the last twenty-seven years.”
“I am most proud,” he continued, “of the way in which we have managed the transition. I have extraordinary successors. . . . This is the most talented and capable roster that we have ever had.”
As for his own future plans, Bruce said that he has “started to organize unusual noises into something that can occasionally claim to be music.” At this point, he broke out a ukulele and mentioned a few upcoming live and radio performances—as well as, of course, some collaborations.
Next, Frug and Newton shared some remarks, as well as a video compilation of messages from scholars around the world who had collaborated with Bruce. These far-flung colleagues expressed their appreciation, admiration, and affection for the trailblazer with whom they have worked to make the law accessible to all.
On April 18, the Law School held the third annual 3L dinner in the Law Library’s Gould Reading Room to celebrate the soon-to-be graduating Class of 2019. Following is the speech delivered that evening by Valerie Hans, Charles F. Rechlin Professor of Law.
I’m delighted to be here at this special dinner celebrating the accomplishments of the Class of 2019.
I’m going to tell you a story—a story written by Susan Glaspell in 1917, a time when women in the United States were demonstrating for the right to vote and the right to serve on juries.
Called “A Jury of Her Peers,” it features a sheriff and a county
attorney who are investigating a mysterious killing in an isolated rural area. A woman’s husband has been strangled to death in his sleep. His wife, Minnie, claims to have slept soundly right next to her husband as he was murdered in their bed. It must have been an intruder, she asserts. Nonetheless she has been jailed as the likely killer. The motive, though, is unclear.
The sheriff and county attorney arrive at the house to search for evidence that will implicate Minnie, bringing along their wives to gather some items for the jailed woman. The two women had not seen Minnie since she married and moved to this remote house, but they recall her as a lively and spirited young woman. The county attorney proposes that the men go upstairs to the bedroom—the scene of the crime—then outside to the barn and the yard to search for evidence. He looks around the kitchen, and asks the sheriff, “You’re convinced there was nothing important here?” The sheriff replies, “No, nothing here but kitchen things,” with a derisive laugh about the insignificance of kitchen things.
The men depart on their search for clues upstairs and outside, leaving their wives in the kitchen. Immediately the women notice unsettling signs. Dirty pans are underneath the sink; the kitchen table is only half wiped clean; a sugar bucket is left open, almost as if someone had been interrupted in the middle of something. A quilt in progress reveals patches with erratic stitching, suggesting distress. The stove has a broken lining. In a closet they see Minnie’s clothes, shabby and heavily mended. They conclude that Minnie’s husband was tightfisted with his money and ungenerous to his wife. What must it have been like to live so isolated with such an ungenerous man, they wonder. Why hadn’t the two of them been better neighbors and reached out to Minnie?
The women continue their search and discover a birdcage, imagining how Minnie must have enjoyed the bird’s cheerful company. But—the birdcage is empty and has a broken door. In Minnie’s sewing basket, they find the bird, strangled dead. Now they understand Minnie’s motive—her husband had strangled her bird, as he had strangled her spirit.
As the men approach from their fruitless search for evidence, the county attorney can be overheard saying, “It’s all perfectly clear, except the reason for doing it. If there was some definite thing—something to show. Something to make a story about.” One of the women quickly grabs the box holding the strangled bird—the evidence of motive—and shoves it in her pocket, hiding it from the men. And with that, Minnie is judged not guilty by a jury of her peers.
We can debate whether their verdict is right or wrong, but the story illustrates the significance of women’s distinctive life experiences. Their knowledge and appreciation of kitchen things lead them to otherwise hidden clues, to the motive for the crime, and to a fuller appreciation of the human suffering underlying this tragedy. At the time of its publication, the story was employed to show what women might contribute as legal fact-finders and voters.
I, however, also see it as a cautionary tale about legal expertise. Tonight we are celebrating three years of the fabulous legal training you have had at Cornell Law School. You will be using the knowledge and skills that you have acquired during your time in Ithaca in legal jobs that are just around the corner. Some of you will work in the private sector, helping to resolve pressing and urgent legal matters of businesses and individuals. Others will work with judges, government, and nonprofit groups, helping our country and those in need.
But will you, like the sheriff and the county attorney, be looking in the wrong places for clues about how to resolve the legal dilemmas of your clients?
First, will you have a broad-enough perspective to find all the clues?
But even more, will you bring a broad-enough perspective to your legal work to serve justice? As we who teach in the Law School have tried to convey during your time here, the resolution of many pressing legal problems requires not only a high degree of technical legal competence but also a deep understanding of the human condition and how different legal resolutions will serve the interests of justice.
As you embark on what promise to be outstanding legal careers, I urge you to bring together the barn and the kitchen, if you will.
Don’t ignore the human and justice dimensions of legal disputes.
Don’t dismiss them as the sheriff dismissed the insignificant kitchen things.
Combining them with your legal training will allow you to observe clues that others cannot see—indeed, this combination will create a lawyer in the best sense.
Thank you and congratulations.
Author’s note: All of the details and quotations are drawn from Susan Glaspell’s short story, “A Jury of Her Peers,” originally published in 1917. The plot of the short story, and of the related play Trifles, was based on an Iowa murder trial Glaspell had covered for the Des Moines Daily News around the turn of the century. Cornell professor J. Ellen Gainor has written about Glaspell’s creation of the short story in her book, Susan Glaspell in Context (2001).
Following is an edited version of remarks delivered by Professor Muna Ndulo on June 21, 2019, at the United Nations Security Council meeting on Security Sector Reform. Ndulo is the William Nelson Cromwell Professor of International and Comparative Law, Elizabeth and Arthur Reich Director, Leo and Arvilla Berger International Legal Studies Program at Cornell Law School, and Director of the Institute for African Development, Cornell University.
With the end of the Cold War, the strategic context of United Nations peacekeeping missions dramatically changed, prompting the UN to shift and expand its field operations from “traditional missions” involving strictly military tasks to complex “multidimensional” enterprises designed to ensure the implementation of comprehensive peace agreements, and to assist in laying the foundation for sustainable peace and development. The transformation of peacekeeping missions reflects in the UN’s own words more of a “hybridization”: “[Thus] the goals of peacekeeping missions have . . . changed significantly: from assisting in the maintenance of ceasefires during the cold war [to] PKOs during the 1990s increasingly becoming peacebuilding missions.”
The broad and complex mandates of today’s multidimensional peace operations are reflected in the varied civilian, military, and police capabilities required to provide support to the challenges of modern-day peacekeeping and conflict prevention. These include tasks such as promoting political transitions, assisting in the development of political structures, demobilizing armed forces, reintegrating ex-fighters into the community, providing humanitarian relief during emergencies to refugees and internally displaced people, establishing and promoting the rule of law and security, supporting disarmament, holding elections, and jump-starting economies. As a natural corollary, the expansion of goals has also expanded the frontiers of responsibilities.
Conditions That Affect the Success of an Intervention
Most conflicts in the world are characterized by a combination of internal and international factors with serious human rights violations and large-scale suffering among the civilian population, which inevitably results in large numbers of refugees and displaced persons. Very often, conflict is a symptom of an intrastate crisis that is deeply rooted in the following conditions: authoritarian rule, exclusion of minorities from governance, socioeconomic deprivation, and weak state structures that lack the capacity to process and provide remedies for normal political and social conflict. Against this background—and cognizant that generalizations can be dangerous—a number of factors seem to determine the success of a peacekeeping intervention: cooperation of the parties implementing the mandate; continuing support of the Security Council; readiness of member states to provide financial, technical, and material resources to the mission; recognition and redress of past and current human rights violations; efforts to deal with gender discrimination and other forms of social exclusion; and the leadership of the mission.
Security Sector Reform
Security Sector Reform (SSR) is an important and generally very challenging issue for UN peacekeeping operations. It is a complex military, political, economic, and social matter that needs to be envisaged as a long-term process. The politics are complex as a postconflict state develops a national security vision and moves forward on SSR. A delicate balance is needed, with the government playing a lead and central role with support from the UN and development agencies that can provide assistance in a range of ways.
The UN is well placed to provide leadership in a coordinating and facilitating role while also providing substantive technical support. The various donors, including intergovernmental organizations—particularly the African Union, European Union, North Atlantic Treaty Organization, Organization for Security and Cooperation in Europe—and individual donor countries, have important roles to play and can provide much-needed technical and material support. Diplomatic and political interventions are often needed to address the array of challenges and to help keep the process moving forward. This process is often difficult, and good leadership and well-qualified personnel are required to successfully carry out the mandate. Care must be taken to ensure that support focuses on meeting the most urgent needs in individual situations rather than spreading “foreign”-focused processes and mechanisms that may not connect to the people. The processes must be reasonably tailored to match the individual situations being addressed.
A range of challenges often confront governments and security services, including lack of national policy instruments, and various concerns within the security services themselves about moving forward, such as threats to entrenched interests. In postconflict situations, the integration of armed groups into the armed services and police is often a contentious issue. An effective integration strategy will be critical for breaking the ties of fighters to their political masters.
There needs to be a continuing and strengthened shift regarding security assistance and SSR from a principally military-centric approach to one focused more on meeting human security concerns. A more integrated and holistic approach is needed, as countries emerging from conflict face a range of nonmilitary threats. In many conflict situations, the contest may be over such things as access to water or other shared resources within the state.
There is a need to rebuild institutions of governance. Conflict results in weakened and collapsed institutions. Developing institutions of governance and public administration is complex. The discussion must include institutions that facilitate collaboration, involvement, consultation, and participation of all stakeholders in all sectors (public, private, and civil society) in the act of governance.
One of the most important political and legal conceptions of good governance is the concept of the rule of law. In today’s world, nations in virtually every region in the world recognize that the rule of law and the protection of human rights are critical factors in nation-building and governance. Peace processes should prioritize the strengthening of institutions that play critical roles in ensuring the rule of law, such as courts, law enforcement agencies, and so on, and should include taking measures to improve access to these institutions.
Furthermore, there is a need for an effective mechanism for ensuring that armies and officers are accountable. Effective civilian oversight is also essential and should be an integral part of SSR. Security services need to operate in accordance with national and international legal norms. Military abuses of rights thrive in opacity, and civil involvement undoubtedly limits the potentially lax attitude of security forces toward human rights.
Local Participation and Ownership of Reforms
Engaging with local nonstate actors provides opportunities for peacebuilding, especially in places where the state is absent, and solutions should be sought within communities. Most conflicts revolve around local disputes such as land or water allocation, legal poverty, and unemployment. Finding local solutions to these issues can form the foundation of peace interventions.
It is important to be specific about the objectives being pursued by including civil society in peace processes. Being aware of the exact objective will help in being more strategic about civil society inclusion in the peace process. Civilian actors need to be consulted, and more than by just listening to their perspectives; they also need some leverage so that their concerns are reflected in any program being implemented and so that the reform includes ongoing attention to their concerns..
Engaging People at the Local Level Can Be Costly and Carries Risks
It must be noted that there is also no room for naiveté in the process. SSR is a long-term and complicated process. In this regard, it is vital to ensure that local actors’ voices are heard and that they have input in and ownership of the process and outcomes of SSR. Ensuring local input is important for the legitimacy and long-term effectiveness of SSR in protecting people and preventing a recurrence of violence. Of course, this enlarged scope of involvement not only has cost implications but can also create logistical problems and difficulties in managing the flow of information and resources, which can make a huge difference in SSR processes.
Ways to Get Local Actors Involved in Peace Operations
Peacekeeping missions should hold public hearings, consultative workshops, and debates on issues affecting the mission. Use local perception surveys to identify local security sector challenges. Discuss issues of community policing and armed-violence reduction with local communities. Encourage input on sensitive causes of grievances and issues that ignite violence and those that promote reconciliation.
Support and use local community structures such as local security committees in the planning and design stages of SSR. For example, in the South African peace process (1992–94), peace accord structures were created in various communities throughout South Africa. In these structures, all stakeholders, including the UN and local army and police commanders, were represented. Issues of violence and policing were discussed, and concerns were transmitted to the national peace structures, which then engaged stakeholders at the leadership level on issues submitted to them by local committees. These structures ensured that no party was asked to place itself at the mercy of others in the application, interpretation, and organic development of the peace agreements, and each retained ownership of and commitment to the process.
Another example is the Democratic Republic of the Congo, where the UN peacekeeping operation has community liaison officers, who are in close contact with local communities, and community security systems have been developed. The communities have lines of contact with the mission that they can use if they feel threatened by armed groups.
The success of a peace intervention will depend to a large extent on the adoption of a clear mandate. In order to structure a clear mandate, there must be a clear understanding of the nature of the problem and the underlying cause or causes of the conflict. Peacebuilding that leaves the causes of the conflict intact is not effective. The strategic implication of this is that in elaborating mandates and structuring missions we must (a) focus on the structural causes of the conflict, (b) distinguish between the symptoms and causes of intrastate crises, (c) realize that political stability requires structural accommodation of diversity, and (d) understand that peacemaking and peacebuilding are primarily the responsibility of local rather than international actors. Peacemaking and peacebuilding are not sustainable unless their form and content are shaped and enhanced by local actors.