THE LAW JANUARY 14, 2013
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One of the most remarked-upon aspects of the upcoming Supreme Court challenge to California’s gay-marriage ban is the odd couple leading the charge: Ted Olson and David Boies, the conservative and liberal superlawyers who squared off in 2000 in Bush v. Gore. Much less is known, however, about the old friendship between Olson and their opponent in this case, Charles Cooper, one of the many lawyers who helped Olson on Bush v. Gore. Cooper and Olson are both part of Washington’s tiny tribe of top-flight conservative litigators. Given their similar resumes, it is odd to find them on opposite sides of one of the most politically contentious Supreme Court cases of the 21st century. When Olson and Cooper face off before the court in late March, they’ll not only be debating gay rights, but the nature of conservatism itself.
Cooper, known in Washington as “Chuck,” is from Alabama, and he’s best known for his starched French-cuffed shirts and genteel southern formality. His way of speaking, once described by Washington Post columnist Mary McGrory as “Victorian copy book prose,” can come across as impressive or a little unctuous, depending on the listener. If Olson, who also has a flair for oral arguments, is the lawyer who argues before the court this spring, he and Cooper will be evenly matched.
The two lawyers met in the Reagan Justice Department in the early ‘80’s. Olson was head of the Office of Legal Counsel and Cooper was a young lawyer in the Civil Rights Division, fresh from a clerkship with Justice William Rehnquist. One morning, arriving at work, Cooper found a surprise. “I walked into my office and there’s this, there’s this woman, with long gorgeous blond hair asleep on my couch,” he recalls. The woman, Barbara Bracher, was a law student doing research on the Bork confirmation hearings and had fallen asleep after a late night. Years later, she would marry Olson, and Cooper would be at their wedding. When Olson retired as the head of the Office of Legal Counsel, Cooper took his place.
Even in the Reagan Justice Department, it was clear that despite their shared conservatism, the two men had different ideas about how to apply it. Cooper calls himself “an unrepentant and avowed originalist,” who “believes the letter of the law sticks” until the people change it through the political process (that is, through Congress, not through an intervention from the administration or the courts). Olson may generally agree, but he was always more pragmatic than Cooper, especially when it came to controversial policies. Olson – whose stance on gay marriage has led some conservatives to accuse him of promoting judicial activism – told me he had never thought about whether he approached the law differently than Cooper. “I think you’ll have to get that from someone else,” he said. According to Brad Reynolds, a former assistant Attorney General who worked with both of them, “they are both originalists, both strict constructionists, but there are gradations ... Ted is more ready to maneuver the argument various ways to make it more appealing to certain people.”
These two approaches generally collided then – as they are now – over social issues. In 1981, Cooper joined a group of Justice Department lawyers who recommended that the Reagan administration reverse a long-standing IRS policy that denied tax-exempt status to Bob Jones University because of its ban on interracial dating. Olson wanted to uphold the rule. “Chuck saw it as an issue that really should have been focused exclusively on the authority of the IRS to issue this kind of a regulation, and the fact that it had the discrimination overtones should not get in the way of making the legal argument,” Reynolds explained. Cooper says that taking such an unpopular stand was “an early test” of his legal philosophy because “there’s nothing in me that would ever tolerate racial discrimination.”
Olson, Reynolds recalls, had more practical concerns. He was worried that the challenge would fail in court and thought the administration should avoid a big battle over discrimination. Olson declined to elaborate on his position when we spoke. Ultimately, the Supreme Court voted 8-1 to support the IRS’s policy against Bob Jones.
Cooper took a controversial stance with regard to discrimination again in 1986, after he had taken over the OLC, when he argued that the federal government could reject job candidates with AIDS out of fear of contracting the disease. Cooper again claimed to be relying on a strict reading of the law as written – the law prohibited discrimination against people on the basis of a physical handicap, he argued, but it didn’t say anything about a fear of contagion, which as a legal matter, was something else entirely – but the decision ignited a firestorm of controversy, angering health experts who said it propagated the dangerous myth that AIDS could be transmitted through casual contact. Again, as it had with Bob Jones, Cooper’s rigidity with respect to the strict meaning of the law trumped his concern for how it might affect people.
“Chuck never knew anyone with AIDS. He couldn’t’ even envision putting himself in the place of knowing someone with AIDS,” explains Doug Kmiec, who led the Office of Legal Counsel after Cooper. Kmiec, who generally saw Cooper as a reasonable person, nonetheless thought his principled stances could be flawed. “I think if there is a human failing in formality, it prevents you from getting close enough to see that the other guys have feelings.”
When I asked Cooper about the memo, he said he couldn’t think of any reason why he wouldn’t stand by his position, but he also hinted that he might be willing to reconsider it now. “I would be willing to re-examine anything I’ve ever thought in the past to see if it owns up to any new information,” he said.
Now, arguing against gay rights in the California marriage case, Cooper insists that his legal position stems from a passionate belief in the rule of law and has nothing to do with a desire to discriminate. If California voters had gone the other way and passed a law redefining marriage to include same-sex couples, he said he would be “the first lawyer to defend the state.”
Cooper seemed sincere about his motives, but he is also an extremely successful lawyer, who has had his pick of battles, and nonetheless has chosen some disturbing places to protect the rule of law. Kmiec, a conservative who has found himself on the conservative and liberal side of issues, says that the great failing of conservatives like Cooper is their desire to deal only in abstractions, a pitfall that Olson seems to have avoided. “They are very strong intellectually, but [if] you’ve ever been to a Federalist society meeting, you’ll see they tend not to want to deal with flesh and blood.”
11 comments
Attorneys who argue cases before the courts (as opposed to, say, corporate lawyers who do paperwork on mergers, which is a different job), yet who take positions based only in abstract principles and not 'flesh and blood,' i.e. how the law affects real people, are pond scum.
- Curran1
January 14, 2013 at 12:51am
Olson's had four wives, his third, Barbara (Bracher) Olson, a well-known conservative commentator for Fox and CNN (and, as pointed out by the author, a lawyer), died in Flight 77. His fourth (and current) wife, whom he married in 2006, is a Democrat (and a lawyer). Wives have lots of influence on their husbands. As for Cooper, it's ironic that he, a Southerner, would make a distinction between handicaps and contagious diseases, for any Southerner (this one, anyway) can tell you that many Southerners continue to believe that handicaps are contagious, that a pregnant woman coming into contact with a handicapped person can cause the child to be born with the handicap. Of course, that's preposterous, but no less preposterous than the belief that AIDS can be transmitted through casual contact. As to why so many conservatives are such true believers, I attribute it to the indoctrination, beginning with College Republicans and continuing with the Federalist Society, that elevates belief above all else, including common sense. Present true believers with facts that contradict their beliefs, and their minds lock up like a PC. That's it, conservatives are PCs, progressives are Macs!
- rayward
January 14, 2013 at 6:46am
Interesting stuff on culture rayward - it's too bad this guy is from Alabama, he plays so perfectly in to the most unflattering stereotypes of the South. Discrimination "overtones" by arse. There are no "overtones" to a policy that disallows interracial dating, it's discrimination - plain and simple. How these guys call themselves conservatives - while contorting themselves in to the activist knots they do in support of legalized bigotry is beyond me. Olsen at least makes logical sense in supporting this cause so ardently, and more power to him. He's been a superb ally.
- WandreyCer
January 14, 2013 at 8:59am
Really nice piece, well written and fair and balanced letting readers make up their own minds about Cooper. Rayward who cares how many times Olson has been married and who knows whether his present wife has influenced him. Plus, since Olson too is an originalist and strict constructionist but more pragmatic than Cooper he's certainly an exception to your notion of conservatives as true believers. I wouldn't call Cooper, whose noted positions I disagree with, "pond scum." I might reject his described doctrinaire rigidity but he comes across in the piece as a nice guy, smart and charming, albeit too ensconced in his principles. It's tough to know just from what Gray writes whether Cooper has underlying sympathy for the racist and homophobic positions underlying his legal positions or his positions are simply a good faith function of his strict textualism/constructionism. After all, as reported by Gray, "Cooper says that taking such an unpopular stand was “an early test” of his legal philosophy because 'there’s nothing in me that would ever tolerate racial discrimination.' " Good for the judicial process that there are guys like Cooper. It evolves from the clash over time of sharply different positions excellently briefed and argued.
- basman
January 14, 2013 at 2:20pm
P.S. My instincts tell me that Cooper is neither a racist nor a homophobe.
- basman
January 14, 2013 at 2:22pm
Basman, you're very fair and congenial here and I always love that about you. It always makes me think. That said, don't you think it's fair to judge him on the actual meaning and impact of his work and not on how sincerely his takes his culture? I don't much care how polite he is, although that's nice I suppose. At least in my lifetime, this whole supposed fetish for constructionism has mostly proved to be...highly fluid, Ill say politely, and instantly jettisoned when inconvenient to these folks. It seems like an excuse to be activist in their beliefs - which are that folks of color and homosexuals do not deserve equal rights. This is wrong, in whatever context, wherever and however colorfully it's argued. In fact, it's all the more foul to me when attempts are made to intellectualize bigotry by wrapping in in a righteous sounding patina (constructionsm, oooooo). The outcome is the same isn't it? If he isn't a homophobe, then why try to take away their rights? If that isn't homophobic, what is? This is why I admire Ted Olsen so much, because he's the only one of his brethren I've ever seen being true to his beliefs.
- WandreyCer
January 14, 2013 at 3:14pm
"gentile southern formality"? Is his ethnicity relevant to this article, or did you perhaps mean "genteel" or "gentle"?
- TARFON
January 14, 2013 at 3:45pm
Jill for lawyers anyway you have to at least consider separating the court positions they take, the legal theories they stand for, and the consequences of their positions. Otherwise, at the absurd extreme of what you argue a lawyer couldn't, for example, put the state to the burden of proving a rape beyond a reasonable doubt. Take an unlikely example, a man accused of rape tells his defence lawyer he did it and the lawyer with that knowledge also knows the state has a weak case. It's the lawyers duty to have his client plead not guilty and put the state to proof of its case beyond a reasonable doubt, even attack appropriately the state's evidence, so long as the lawyer doesn't represent to the court that the accused didn't do it when the lawyer knows he did. A defence lawyer doing otherwise would be derelict. So is this hypothetical lawyer to be judged by the "impact and meaning of his work," here a rapist the lawyer knows did the act going free? The answer is that putting the state to proof of its case is the superior value in the administration of criminal justice precisely because the of the power of the state as against the typical citizen. So really it begs the question to say "meaning and impact of his work" because what is that in the case of my example but the systemic vindication of the adminstration of criminal justice. I'm inclined to take Cooper at his word that he's not a racist and that he took a particular view of the prerogatives of the IRS as legally important and that's the principle he wanted to uphold regardless of the immediate real world consequence of his position, conceptually analogous I'd suggest to the rapist going free in my example. No?
- basman
January 14, 2013 at 4:10pm
Well ok I see Basman, yes he that lawyer would be derelict definitely. You know I'm not a lawyer so it is important that I see it from a legal point of view and I will try. But I'm still unconvinced. The rapist has been accused of a crime right? Where he'll go to jail if convicted? A man trying to marry a man hasn't been accused of a crime, why does criminal justice need to come in? Even if that same man is advocating to change the law he's not breaking it, he's simply advocating. The IRS stuff matters because you're forcing people to pay more money in taxes and many other fees by not allowing them to legally marry. So I'm wondering about the analogy. I get that even though the lawyer knows he's putting a rapist back on the street, that he did his job, so are we to judge him too? Such is the paradoxical nature of criminal law - the burden of proof is entirely on the state because due process keeps us safe from a tyrannical state, even if some guilty people go free - its the state that failed, not the defendant no matter what. So a criminal defense lawyer is always defending much more than his client. I still think if you're going to argue that a minority does not deserve to have equal rights under the law, that you misunderstand the Constitution in the first place. So again - this is not criminal law, it's Constitutional law, and the outcome and goals seem different. Do we not protect the minority from the majority? Yes. The only way these constructionists can get around that is to say that this is an invalid minority, that their very existence as a category is a fraud, a creation. This is manifestly offensive. Yes, I admit that I often do differ with the constructionists, whose arguments I almost always find dubious at best - why are they always so suspiciously obsessed with denying rights to traditionally marginalized people rather than almost anything else? Because of the sanctity of the Constitution? Until it's not so sacrosanct anymore (hello Scalia et all? NOT Olsen, who is being the true constructionist). It's always a smoke screen for religiously-based hooey in my view and we do have a separation of church and state. Just because Scalia and Roberts were raised Catholic should have no bearing on equal marriage rights and yet it's impossible to argue it doesn't. And so these Federalist Society guys use this whole constructionist thing - which to me is obviously political construct (which they no doubt would view my take the same way) and has little to do with a reading of the Constitution. Bottom line, these cases eventually always come down to some rigid constructionist crying uncle anyway. Sorry if this drives you mad Basman, I'd understand.
- WandreyCer
January 14, 2013 at 4:58pm
JWC: It doesn't drive me in the slightest mad, either mad as nuts or mad as angry. Just the opposite: I enjoy trying to engage the argument. I think the analogy isn't the specifics of criminal law, its aims and purposes and methods, and those of constitutional law. The analogy is between the difference between advocating a legal position, either on principle, or because one is paid to, or just plain pro bono, and the real world consequences of the position being vindicated. Here a distinction needs to be drawn between those who indubitably hold bad positions and flat out go to court under whatever legal theory they can to enforce those positions in law and those who in good faith hold principled legal positions--which in addition have some arguable plausibility as do textualism and originalism, though that addition isn't necessary to my argument--and go to court to vindicate those principles regardless of the outcome. Why is attempting systemic vindication of the administration of criminal justice more important or more morally worthy or more jusitifable than trying to vindicate one's view of the Constitution, its scope, how it should be construed and the court's role in relation to it? (So even on the former question of not allowing businesses to turn away African Americans, I could see someone in good faith opposing federal law disallowing that on a theory of limited federal powers and strong states' rights, or, on a different issue, favouring choice but not believing your Constitution gives the court power to prevent the exercise of choice as a matter of constitutionally protected privacy rights.) At any rate that's the true analogy to the criminal lawyer example, a principled belief in say a certain order of constitutionality or some other legal principle, say the in the case of the self admitted non racist Cooper, the prerogatives of the IRS, or whatever the exact principle was. Your argument does not allow for the latter half of my distinction. But while the are plenty of arguments to be made against originalism and textualism it's too much, I suggest, to say there are no principled textualists and all of them always are tendentious. There are too many of them and their positions are too arguable. Plus, originalism is a sub set of textualism and the arguments for the latter are powerful. It is a theory of what's proper in construing legislation, namely the text and nothing but the text. So to deny all textualists the benefit of good faith is even a further reach than just denying it to originalists. I'd think the IRS point was a legislative one and not a constitutional one though I'm not sure of that. The nub and test of the issue we're mooting is whether racism or flawed morality in Cooper even short of racism can necessarily be inferred from the legal position he took and whether homophobia can necessarily be inferred from his advocacy against gay marriage. You say, I think, it can be necessarily and I say it can't be necessarily.
- basman
January 14, 2013 at 6:21pm
The fact is, Chuck Cooper chose to take on this case. He could take any case he wants. And if he hadn't taken this case, there are a dozen other lawyers who would take it in a heartbeat. It's not as though the case were assigned to him and he has an ethical obligation to defend a position with which he does not agree. Whether or not he harbors any actual prejudice, similar to our Chief Justice, Cooper strikes me as a "relentless champion of the overdog."
- kkseattle
January 18, 2013 at 11:19pm