Peter Margulies Reports on AALS IV

Peter Margulies finishes his dispatches from AALS with this meditation on Harold Koh, Ted Williams, and Joe DiMaggio. Whether he will survive up there in Red Sox Country after this piece of public heresy is, I suspect, open to question. I call on all sides to behave with restraint, and, on a serious note, many thanks to Peter for this excellent series of guest posts:

Harold Koh on the Difference Between National Security Advice and Legal Academia At the AALS Conference which has spurred earlier posts on detention, military commissions, and war powers, State Department Legal Adviser (and former Yale Law dean) Harold Koh spoke on the inadequacy of theoretical answers for real-life national security dilemmas.  Noting that the national security lawyer must act instead of endlessly pondering the situation, Legal Adviser Koh also offered a provocative baseball analogy. The senior government lawyer and legal academic have very different job descriptions.  The legal academic has a job with vast flexibility, virtually total security, and almost microscopic responsibilities.  Indeed, for those disposed to write and teach, only the rigors of committee work can rightly be called responsibilities at all.  True, the diligent law professor should be troubled by the difficulties facing today’s law graduates in a brutal legal market.  Nevertheless, the law professor’s ability to opine on any legal subject while enjoying a perspective no longer than the distance from his or her office to the faculty lounge is a singular fringe benefit that, together with a decent benefits package, makes the American law teacher among the most fortunate of humans. Koh contrasted this sylvan glade with the rough-and tumble world of the senior government lawyer, who serves at the President’s pleasure, gets grilled by Congress, and has little time to call his or her own.  Most importantly, Koh observed, the law professor’s luxuries turn into liabilities for the government lawyer.  While the law teacher can bask in the certainties of legal doctrine or theory, the government lawyer is forced to confront an uncooperative world that changes daily.  A tenured law professor can gaze at the ceiling, as administrators and fellow faculty beseech him or her to attend a meeting on their pet initiatives.  In contrast, the high-level national security lawyer lives with the fear that policymakers will freeze him out of the decisionmaking process, or patronize him as a wonky worrier.  As Dean Koh noted, in decisions on high-stakes national security matters, the term “professor” is rarely meant as a compliment. Koh asserted that senior government lawyers have a choice.  Taking one path, they can remain above the fray, issuing opinions of unimpeachable logic while decisions proceed without them.  In the alternative, they can become engaged in the contingent flow of “events,” as British Prime Minister Harold MacMillan described it.  The latter course, Dean Koh urged, is the only way government lawyers can make a real difference.  Those who have admired Koh’s commitment to public explanation of the administration’s policies on drones and Libya will recognize engagement as the hallmark of Koh’s tenure as Legal Adviser. Dean Koh presented a baseball analogy: Red Sox legend Ted Williams.  The last major leaguer to hit .400 (in 1941), Williams had a simple explanation for his feat: “Just get 2 hits for every 5 at-bats,” he explained patiently to eager students of the game.  Williams, whose uncanny vision of the ball from the pitcher’s hand to home plate equaled FDR’s ability to gauge the changing winds of politics, didn’t seem to appreciate that his matter-of-fact explanation of great hitting only made his achievement more incomprehensible to mere mortals.  For Koh, Williams’ example shows that a senior government lawyer has to hit the ball every day – the lawyer cannot remain aloof or make a fetish of saying, “No.” While Dean Koh’s vision of the engaged government lawyer is compelling and Ted Williams is a worthy subject of wonder, Koh’s baseball analogy is flawed.  Here full disclosure is in order: I’m Bronx-born and bred.  With this different perspective on baseball history, it’s obvious that Dean Koh’s avatar should be, not Ted Williams, but Williams’ contemporary, the “Yankee Clipper” Joe DiMaggio. DiMaggio also had a great year in 1941, when he set the one baseball record that will never be broken by hitting safely in 56 consecutive games.  To manage that feat, “Joltin’ Joe” had to remain engaged, seeking out hits any way he could find them.  The prideful Williams, in contrast, sometimes decided not to swing at all if a pitch was not perfectly to his liking.  He eked out walks instead of swinging at pitches that were a little high or outside, even when he could have hit those pitches to the shores of Nova Scotia.  Indeed, Williams’ .406 batting average in 1941 was linked directly to his astounding 147 walks.  DiMaggio had fewer walks than Williams, because in maintaining his hitting streak he could not afford to be above the fray.  Instead, he swung at some less than perfect pitches, to keep his streak alive and – not coincidentally – help the Yankees win.  Williams was the better hitter – the Leonardo of baseball – but DiMaggio was more valuable to his team and won the 1941 MVP Award.  (The Yankees also won the World Series.)  Perhaps Dean Koh will at least mention DiMaggio the next time he gives his talk.