Dec. 5, 1996
Vol. 16, No. 7

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    Profile: David Strauss

    David Strauss, the Harry N. Wyatt Professor in the Law School, is a man with well-defined priorities. When advisers to then-Supreme Court Justice nominee Ruth Bader Ginsburg invited him and other University law professors to Washington to help Bader prepare for her Senate confirmation hearings, Strauss said he could not attend. "It was swimming night with my daughters," explained the father of Hannah, 6, and Julia, 4. "Nothing gets in the way of swimming night." Strauss met with a sympathetic Ginsburg at a later time.

    A committed family man, Strauss puts no less effort into his work as a teacher, lawyer and scholar. He is an expert in constitutional law and an editor, with Provost Geoffrey Stone and Dennis Hutchinson, Associate Professor in the College and Senior Lecturer in the Law School, of the Supreme Court Review. He has published articles on, among other topics, race discrimination, affirmative action and freedom of expression. He frequently is called to give expert testimony to Congress on constitutional issues and has been counsel for more than a dozen cases argued before the U.S. Supreme Court. You have argued several cases before the Supreme Court. What cases are you working on now? Geof Stone and I are helping represent President Clinton before the Supreme Court in the so-called Paula Jones case, where the question is whether a president can be sued while he is in office. Our position -- President Clinton's position -- is that the suit has to wait until the end of his term. I also have two cases before the Supreme Court in which I'm defending the limits on the right of anti-abortion protesters to confront people entering abortion clinics.

    You worked as a lawyer before beginning your academic career, and you still work as a lawyer at times. Why did you decide to turn to academics? I didn't like law school [at Harvard University] very much. I think that was as much my fault as my teachers' or anyone else's, but after law school, I really didn't see myself going back to academics. After school and a judicial clerkship, I worked as an attorney with the government -- which, to my mind, is the most interesting kind of legal work. You're dealing with interesting and important issues and even as a young lawyer, they'll throw you in on the front lines. I argued two cases before the U.S. Supreme Court by the time I was 30. In the private sector, that would be extremely unusual.

    After five years or so, the job was still great, but my learning curve was beginning to flatten out. At the time, I didn't have a good picture of what being a law professor would be like. Cass Sunstein, who had been a friend of mine since law school, told me I should talk to then-dean Gerhard Casper and to Geof Stone, who was then the chair of the faculty appointments committee. All three of those people, and the other members of the faculty whom I subsequently met, were very impressive. They were very smart, and they had all the virtues of the very best practicing lawyers I knew, but they also thought about the law in a way that engaged more fundamental issues and was richer and more interesting.

    Why do you still handle cases in the "real world?" For me, it's a good idea to stay in touch with the real world of practicing lawyers. My first priorities are scholarship and teaching, and I handle only a very few cases. But that is where most of our students will end up. And, speaking just for myself, I think there's a danger of my getting too caught up in abstract intellectual formulations if I don't occasionally have to talk about litigation strategy with a practicing lawyer, or figure out how to persuade a real judge.

    You won the Law School's teaching award last year. Do you like teaching? My classes are really among the intellectual high points of my day. Our students are very smart and very committed, grown-up, serious, engaged -- they are just much better in all those respects than I was as a student.

    You didn't like law school, but you like law? The more I learned about the law, the more I began to appreciate its virtues as an intellectual discipline. There are plenty of abstract issues and fascinating puzzles, as there are of course in other areas, but they're not just abstractions and puzzles. They bear directly on real day-to-day problems and we're learning about how to resolve conflicts and order a society. I think it's very important to teach this to students -- when a client comes to you, it will probably be one of the most desperate or most important times of the client's life.

    In your current work, you argue that people misunderstand what interpreting the Constitution is all about. I do think there's too much of a preoccupation -- and this runs across the political spectrum -- with trying to solve difficult 20th-century problems by scrutinizing, ever more closely, the work of a few gentlemen who lived on the Eastern Seaboard more than 200 years ago. They were great men, in many ways, and they did great work, but we've learned a lot more since then. I think that in a mature, liberal society like ours, the true Constitution is not just the document -- it's not ever primarily the document -- but principles and institutions that have built up, over time, through an evolutionary process. If you think about the important features of our constitutional system -- the principles of freedom of speech and religious toleration, the rule that you can't discriminate against racial minorities or against women, the power of the federal government, the legitimacy of the welfare state and the federal bureaucracy -- these things were established over time, in a series of hard-fought battles. They weren't the product of a single inspired stroke of a pen.

    You're tackling big, important, complex legal issues at work, and yet you are also an extremely active father. Well, I think dads like me get a lot of extra credit for doing things that mothers are just expected to do as a matter of course. And balancing those responsibilities is something that lots of parents do in circumstances that are a lot less favorable than mine. But the fact is that having kids is the greatest. Spending time with them doesn't feel like an obligation, it's more like the opposite -- I'm the one who gets a lot out of it. No work-induced bad mood can survive when you see these little 3- and 4-year-olds streaming down the steps at the nursery school. Kids understand that life is full of wonder and mystery and is really great in a million different ways.

    -- Catherine Behan