Episode 46: L. Rachel Lerman
General Counsel and Vice-Chair of the Louis D. Brandeis Center for Human Rights Under Law
00:50:28
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Show Notes
In this episode, host M.C. Sungaila is joined by General Counsel and Vice-Chair for the Louis D. Brandeis Center for Human Rights Under Law, L. Rachel Lerman. She shares her journey from art to the law, and from a career in appellate law to one focused on civil rights protections for Jewish students and tackling anti-Semitism.
This episode is powered by Immediation, LexMachina, and LexisNexis
Relevant episode links:
The Louis Brandeis Institute, Constitutional Rights Foundation, The Brothers Karamazov
L. Rachel Lerman:
L. Rachel Lerman
I currently work as General Counsel at the Louis D Brandeis Center for Human Rights under Law, a nonprofit organization that uses the civil rights laws to protect the rights of Jewish students on college campuses in the U.S., where growing anti-Semitism is a well-established problem.
In private practice, I focused on appellate litigation, authoring (and editing) appellate briefs and writs and presenting oral argument in federal and state appeal courts on a wide range of matters, including commercial litigation, civil rights, and white collar law.
I am admitted to practice in California, in the United States Supreme Court, and in all the Federal Circuit Courts of Appeals, as well as in the California Federal District Courts.
I am a member of the California Academy of Appellate Lawyers, and vice chair of the Louis D. Brandeis Center for Civil Rights.
Transcript
In this episode, I’m very pleased to have on the show, Rachel Lerman, who previously practiced appellate law exclusively at a very high level. She’s the [then] Senior Counsel [now General Counsel] and Vice-chair at The Louis Brandeis Institute. Thank you so much for being here.
Thank you. It's a pleasure to be here.
I want to talk about the transitions and the different kinds of things you have done in your legal career, but also I want to start first about your journey into the law and how it is that you decided you wanted to become a lawyer and what you thought you could accomplish by being a lawyer. How did you first decide to become a lawyer?
It's an interesting story because I wanted to be an artist. I wanted that from day one, but I was always told in school, “You would be a good lawyer. You write well, think well and you are analytic.” I'm like, “No. I want to paint pictures.” I always thought, “If the painting does not work out, I can be a lawyer.” Part of the reason I thought that I did not think twice about that was I had an aunt who was a lawyer and she was the first lawyer in the US sense of the word in the family.
My grandparents were refugees from Ukraine and they moved to Montreal. My aunt, my father and his brother, were raised to think, “You have to get educated. The boys must be doctors,” and they did become doctors. The girl, she's got to go through college. She went to McGill and then she moved to New York with her husband, who is a professional violinist. He is her high school sweetheart. They had two small children, but unfortunately, he was killed in a horrific subway accident when the boys were small.
The funeral was back in Montreal and her mother looked at my aunt and said, “Now, you must go to law school.” She said, “Leave the boys here with me in Montreal and your brother is at NYU Med. You might as well go to NYU Law.” My aunt did not question this because her mother knew everything. My aunt went to NYU Law in the ‘50s. She was the only girl in the class.
I was going to say how many others were with her. I would say at most another one, but only her.
She was terrified. My aunt is less than 5 feet tall. Here's this tiny little woman alone in New York. She worked at a hat factory at night, and she got through law school, did very well and graduated the same year as Sandra Day O'Connor, and got a job at a law firm. I said, “How on earth did you do that?” She said, “I had no choice. I was not going to stay at the hat factory.”
She did that and less than ten years in, she started her own law firm with a male colleague and her name came first. It was Linden and Doidge. They were an entertainment law firm. They did very well. Her clients adored her. One of them left her in his will his Park Avenue apartment. That is where she lived and she was an extraordinarily successful lawyer.
It never crossed my mind to question whether women could be lawyers because, of course, they can. She certainly encouraged me to consider the law. I was very stubborn. I majored in Art and I painted for ten years after I finished college. When I was getting closer to 30, I thought, “Maybe it's time for plan B,” because I felt too isolated in the painter's studio. I was constantly reading and thinking. I wanted to be more engaged in the world. I was living in Switzerland, but I moved to Berkeley to go to law school there, and after I clerked, I decided, “I'm going to be an appellate lawyer because I like this stuff.” No one told me, “You don't go be an appellate lawyer.”
It’s good to know this stuff because then you go ahead and do it. I remember when I was in UCLA Law School and I thought, “I want to clerk as well, but I only have one year to clerk. Where would be my favorite place to clerk?” I'm going to go for it. That first year I decided I wanted to clerk at the US Supreme Court. Nobody told me you couldn't do that. Usually, have another clerkship first and all of this stuff.
I confidently walked into the judicial clerkship office and said, “I have decided I would like to clerk, and this is the one clerkship I would like to have and how do we do that?” Gratefully, they did not laugh me out of there. They explained how it worked, and that was very unlikely, and did I have a second choice for where to clerk. Sometimes it's good not to know that's not how it's done or whatever. Tell me about the clerkship as well, you clerked on the Ninth Circuit. How did you go about getting that and how was that experience?
Preach ignorance. You'll often get corrected, but then you’ll know you’re moving in the right direction.
After my first year of law school, I came from a background in painting and I also had a Master's degree in Comparative Religion. Suddenly, I'm in law school and it's a different world. I was like, “I'm not so sure about this.” A friend of mine said, “The District Court judge is looking for an extern. Why don't you give that a go?” That will be like, “Maybe a shot in the arm for you.” I went and I worked for Judge Charles Legge in San Francisco, and boy was that a shot in the arm. It made the whole world of law come alive to me. I had been lost in civil procedure and putting it into play, it made so much sense.
Judge Legge, who's retired now, was an amazing judge. He would put on his black robe in the morning and he would hop up and down and say, “Let's go to work.” He cared so much about the cases and he was so not political in the way he approached the law. We went into each case and the clerks had different political views and he did and we all pretty much would come to the same conclusion after reviewing the law about what the decision should be.
I felt like I learned so much from that experience. That made me think, “I really want to clerk.” He encouraged me to apply to Ninth Circuit judges, which I did. I ended up with the late Tom Nelson in Idaho. It was a two-year clerkship. It was also a good experience. He also had that same attitude toward the law where politics did not matter. You read about judges and how political they are, but my experiences were very different. He always had a first impression, but he was always willing to be talked out of it. I would say, “I see what you are saying, but here's how the law in this particular area works. Let's reconsider.”
It was a terrific two-year experience. Learning how to write and learning how judges read briefs because it's a temptation on the part of lawyers to assume a great deal of knowledge on the part of these judges. They must know all these areas of the law inside and out and they don't. They are generalists. I remember we got a bankruptcy case and none of the clerks had taken bankruptcy and the judge had never done bankruptcy. He said, “There's a nutshell in the library.”
The generalist aspect is right because one could be a bankruptcy appeal and another one could be a criminal sentencing appeal. There are so many varieties in one calendar setting that the judges on the Ninth Circuit and the clerks are handling. Even if you have some background and you have done a bankruptcy case before but maybe not this particular issue. It's a pretty defined set of problems you have not dealt with before. I have noticed that too, with people who are specialists in their areas, whether they are patent lawyers or bankruptcy lawyers. There's a lot that they know and I'm like, “You have to explain that a little bit because you are not dealing with a judge who this is the only lobby they work in.”
I also remind them, you may have a clerk.
Correct. They have a clerk who does not have any experience in that area of law.
I learned two things. One was how to get up to speed quickly, in an area that I was not familiar with, and another was how to explain something in plain English to a generalist judge. Judges are smart, but you have got to lay an educational background in your briefs. It’s almost like a translation. It was like, “Mr. Bankruptcy in practice or Mr. Bankruptcy partner, we have to stipulate that people don't know what 521(a) is. Explain it to me as if I were your teenage kid or something like that.”
I had the translation experience as well and all of that, the presentation on how to put it all together in a way to someone who does not have that knowledge because they can't. It’s because of the variety of cases that they are dealing with in the writing, the presentation and the storytelling.
You don't want to bore the judge.
Let me give you a treatise on all of this. They will read the treatise if they need it. I think there is a contrast between law school and then the clerkship. The foundation of what I learned in terms of how to be a lawyer as a practitioner came from my judicial clerkships.
Me too, it was the best on-the-job training you could possibly get and you are being mentored by a judge that's wonderful and sometimes by the other judges on the panel.
It's a special experience, but I hope people will consider at least trying to apply for it because you never get to have that perspective again unless you join the bench yourself in terms of seeing how the presentations are being perceived and how decisions are made. That's invaluable in terms of knowing how to be an advocate and to persuade judges. Especially as appellate lawyers, we are persuading judges, not juries. That's very important to us to know how to persuade judges.
I worked a lot on bench trials as well over the course of my career.
Right out of the appellate clerkship, you decided, “I like this. I would like to be an appellate lawyer,” because that does not happen very often. It took me a while to come to that point, even having clerked for an appellate judge.
I had planned on being a law professor and I was all about dissertation, jurisprudence and social policy. I did an interview for some teaching jobs and my husband at the time said, “That's great. We had been in Boise for two years. I think you should get a teaching job in New York City or Los Angeles.” Even I knew that was probably not going to happen right off the bat.
There was a point where I was considering teaching as well. When you go to that general marketplace where you are going to go be interviewed for that, your first opportunity is not LA or New York and you go wherever the opening is. It’s similar to a clerkship to some degree. When you get the offer, you go. You have to be willing to go somewhere you have never been.
I was interviewed by NYU, but I did not get that job. I thought, “I will be an appellate lawyer,” and I thought, “I could do that in Los Angeles or maybe DC.” I happened to get a lateral one day because when you are a clerk, you do get these letters from law firms. It was from a firm in Encino, Horvitz & Levy, a boutique firm. I thought, “Encino, I think that's near LA.”
I'm from the East Coast, like in Montreal and New York. I had to get out an Atlas and sure enough, there was one right down in LA County. I wrote them back and said, “I would love to work for you guys.” That is where I ended up working. Straight out of the clerkship, I moved to LA. It made the spouse happy. I got a terrific education on Appellate Law in Horvitz & Levy.
It is where we met. I hadn’t thought about that. I'm like, “You came straight from the clerkship and some successful letter-writing campaigns by the firm. That's good.” You have practiced both in large firms and ended up co-chairing the appellate practice for another large firm. Maybe you can talk about the different settings in which you practiced appellate law as well and the differences, the pros and cons of those.
I love Horvitz & Levy. It was a great small firm atmosphere and I learned a great deal, but after I had been there for a few years, I was approached by an old college classmate, Eddie Lazarus, who was rather notorious at the time, and Judge Bill Norris, who had retired from the Ninth Circuit. He’s a greatly admired judge. They said, “We are starting an appellate practice at Akin Gump,” and we need someone who knows some California law, “How would you like to be tempted to join us?”
They were very persuasive advocates. They persuaded me to go onboard. I was excited at the prospect of working in national practice, including the US Supreme Court and all that exciting and challenging work. It was a big transition. It took some getting used to because it's big firms and you have to learn to navigate. Luckily for me, Eddie was a great mentor and helped me through that process, sometimes by yelling at me. “You can't tell the partner that you don't like to do an oral argument when you are about to go argue his case.”
I did not know about anything. That’s the story of my life. I blunder on through. Luckily, I won the case and the oral argument went great. In Horvitz & Levy, a lot of us did not like oral arguments because we were quiet appellate nerds who wanted to write the briefs. I had to learn to present a very different face to the other partners. I did learn that early on. I was there for thirteen years and then the number of Akin Gump litigators moved to start the LA Office of Barnes & Thornburg, which is an Indiana firm. I went there to co-chair their appellate practice. I did that for a number of years and that was also a terrific experience.
In that role, women also are starting to move into management roles within big firms. Having the responsibility for the practice group and having that position is a good thing, but it also is an additional responsibility. You are making sure everybody's productively engaged and you are working within the firm and outside the firm to promote the group.
It’s a whole new set of skills that comes into play.
Go for what you want. If you get knocked back a bit, that’s part of how it works. Eventually, you’re going to be undeterred after that.
It's good because you want to keep growing and learning different skills doing that. It's good to have had that opportunity to add to the skillset. You have come a long way from, “I don’t know that I prefer oral argument. I’m running a practice group, bringing in business,” and all of the stuff. It's growth.
You learn to put more public face on things than I had ever done as an artist or a scholar of religion.
I have a question about that. I was thinking about it. In terms of your prior work as an artist and the Comparative Religion, how do you think that influences or surfaces in your work as a lawyer, whether it's as an appellate lawyer or in your role now?
I have asked myself that a lot and it's not that I sit there and think, “What would you say about this?” From the artist's perspective, I had a whole set of jobs like waiting tables, teaching English and sign painting. I learned, met and worked with people who are outside the legal profession, who are from normal walks of life. I got a lot of insight into how people think outside of academia or profession, and how to work with them. A lot of your clients are business people. Some are self-starters. That did help me in terms of relating to clients and also relating to people in general.
Even if we tend to be introverted as appellate lawyers, you are very personable and good at making people feel comfortable in all different types of groups.
It was second nature that you treat the secretary as well as you treat the partners and as it turns out, it has a great payoff because those people are a huge help to you. You can't do it without them. Being outside of the academic and legal world for a decade was good for me. Comparative Religion has always been a passion of mine to learn about different religions and study them. You also study different mindsets and kinds of people.
It is helpful in persuasion too. Our job is to advocate. You are thinking about different ways to get things. Patricia Holmes, who I interviewed, was one of the first woman partners I have been seen in Elkins, she prior to becoming a lawyer, had a PhD, and the focus of her thesis was on Gandhi of all things. She consciously said she used what she had learned by studying him in terms of negotiations and how to navigate a big firm where it was still particularly challenging for women.
I thought that, “She's got principles of nonviolence and this and that in order to achieve some movement forward,” but she was conscious about it. She's like, “I have thought about this and this wouldn’t be the way to approach this.” After so many years in appellate practice, in such a high-level and excellent practice. I can say this on personal terms because I have seen your work in so many different ways. How did you come to say, “I would like to apply those skills in a new venue?”
Several years ago, a classmate of mine from Berkeley who is also in the PhD program approached me and he said, “Would you like to be on my board?” I said, “Board of what?” He said, “I have started The Louis D. Brandeis Center For Human Rights Under Law.” He was in the office for civil rights under George Bush, too. He had learned about applying the civil rights laws to different kinds of groups.
At the time, 9/11 had happened and there were difficulties on campus for Muslim and Sikh students because Title VI does not apply to religion and religious groups. It only applies to race, color or national origin. They want it to be able to protect these students and through dear colleague letters and other things, they were able to apply this to religious groups who have a national origin or ethnicity. That came to cover Jewish students as well.
Jews are not just a faith group. They are also an ethnicity. He decided to start an organization that would apply civil rights to this group on campus, particularly Jewish students, and he needed people on the board who had legal expertise of different kinds, including the First Amendment. It was a lot of First Amendment work.
I joined the board and I became the vice president and then the vice-chair when we changed titles. I did pro bono work with them. When he left to go back into the government for two years, he appointed Alyza Lewin to replace him and she's a fabulous lawyer and knows these issues inside out, but she did not know how to run the center. She got on the phone with me a lot and I did not know either, but we were puzzled through things together. “We are running out of money. We should think about fundraising.” People who don't know what they are doing and figure it out.
The fundraising was very successful. Ken was able to come back in full-time after leaving the government and they said, “We can hire some more lawyers. Do you want to join us?” I said, “I thought it would be fabulous.” I'm at a certain age now it's time to think about my next career move. I joined them as senior counsel, and it's been very interesting. It's very different from appellate law because I don’t have appellate work then, but mostly what I'm doing is not appellate work.
That's what I think is so interesting. Moving not only from the firm to a nonprofit but changing what you are doing entirely in terms of the litigation you are working on is like, “That's the beginning. It's not the end of the line as an appeal would be.”
You have to talk to the people who might be clients and the people who might be witnesses and try to work up a case. A lot of our cases are submitted to the office for civil rights because that's what you do with Title VI complaints. I have not done that but that's what you do. That's part of the Department Of Education and they handle those things.
The faculty come to you, then it's Title VII and it goes to the ASD. It’s a whole different ball of wax. The group has grown. We added a fabulous new international law guy. I'm learning how to work as a team and manage all the cases. We also handle litigation outside of campus activities and we have a big case that's coming out that I have worked on. They said, “Rachel, you draft the complaint.” I thought, “I’ve never drafted a complaint.”
I was going to ask you if you had ever done that, especially since you went straight to appellate work. It's like, “I have seen them.”
I said, “First, I better get up to speed on the facts. Let me talk to the client a little bit.” That took quite a while. We had 35 years of emails. It was huge. I was like, “We need to organize these.” We have a paralegal. It's very different from working at a firm. It is sometimes it's terrifying and exhilarating, but when we don't know what they are doing, figure it out. They are very smart. Everybody has been doing this for many years and think, “Maybe we will organize them chronologically. That should work,” if the client is spitting them out all over the place.
Let's start with some fundamental organization here and we will get a story from that. You can't send it somewhere in that department, “Figure it out.” You are like, “We are the department, so we have to figure that out.” I do think that the skills from appellate practice and seeing where we do in consulting on cases and the strategy from the beginning that's useful for what you are doing. Even if we are not engaged in the nuts and bolts of fact-finding and gathering, but having a strategy and a sense of where you want to go with the case of the end is very much what the skills we have as appellate lawyers.
It’s being able to identify the facts that are going to be salient. It is part of the same thing, but to the extent to it, you have the witnesses and the clients who don't know anything about the law, and they come up in all these tangents. You want to stop them, but at the same time, if you let them keep going, sometimes you come to places that open up in an interesting way.
As you said, your experience working in all manner of settings gives you that openness to letting them go through that. As lawyers, we can be too much like, “We know that we have to prove, and let's stick with the story.” As you mentioned, maybe there's something else you don't know about that's rich. It isn’t directly on point but rich and maybe open up new avenues even for a legal case which you never learn about if you kept someone on that straight and narrow path of what you expected to hear from them when there's something very different.
The other aspect of this work that's new for me is it's much more emotional because we deal with students who are struggling on campus. There's a lot of antisemitism on campus now, a lot of anti-Israel-related antisemitism. Someone comes to you, and they have been elected vice-president of the student government, and suddenly they are being told they need to leave because it's been discovered that they are pro-Israel. It's like, “You can't be in student government anymore.” We are seeing this on a lot of campuses, and you can imagine how the students are devastated. They are getting hate mail being accused of all sorts of terrible things.
The schools don't know how to react and like, “This is a political argument, is it not?” We are like, “No. It's more than that. You are telling the Jewish students who are pro-Israel that they can't participate in student government. You guys need to step in and talk to the student government and explain to them that it's contrary to the civil rights laws. Your federal funding is abiding by those civil rights laws.”
In this country, the civil rights laws have been important to forming an understanding of how things work and to making change. We try to do everything we can in bringing the Title VI complaint. We try to educate the universities and university administrators and develop a working relationship with them so that we can work stuff out and navigate the shoals of, “There's the First Amendment. You don't want to down anyone's speech.”
When you're executing a plan, you need to look at each side of the road so you can see other opportunities you hadn't thought of.
I have always been a very strong advocate for the First Amendment, at the same time, as you may have worked in the labor field a bit, harassment is always confusing. When does hostile language turn into harassment? When is it protected? When is it not? Those are some of the more challenging issues that I work on.
You have experience with First Amendment law prior to coming to the center. You have that backdrop as well. I always think about appellate law as being one wherein the Marshal Ginsburg model of we are going to choose particular cases. We are going to work through the system and with one appellate case you can change how the laws are applied or what the standards are. You can have this ripple effect across a number of cases from doing that. That's a large part of the value of appellate work. It's very satisfying. You have justice for this particular person, but then you also create the opportunity for justice for a lot more people with one case.
You have to pick your cases carefully. You got to bring every case and there are people in the community like, “Keep bringing cases.” “No. We only want to bring the good ones.” We are trying to reshape the law.
A case selection is like appellate law. As you are saying, you are trying to work with the different entities to have an understanding of all the different things they need to balance, and hopefully, that will prevent future challenges or meetings that have to happen because you have done that in a more systemic way with the different institutions. There are a lot of overlaps, at least with some of the skills that we have in the appellate realm. They are lucky to have you, Rachel.
Thank you. I'm to be there. It's exciting.
Do you have any particular advice for law students or newer lawyers in terms of either selecting their initial path or even about doing the work that you are doing at the center?
It's hard to say preach ignorance, but it was good for me not to know that you can't be an appellate lawyer right off the bat. I would urge people as you did. Why not walk into the office and say, “I want to clerk for the US Supreme Court.” You will get corrected, but at least you are moving in the right direction and you did not feel like you had to start small. Go for what you want and if you get knocked back a bit, that's part of it.
“That’s not how it works? How about this?” It's going to be undeterred after that.
Forge ahead. I would not have thought if my friend had not come to me and asked me to join his board, I don't know that I would have been able to find a job with a nonprofit because I don't have that background. It was all asylum work.
You had board experience as well.
I’m on the Constitutional Rights Foundation board. I worked with them for many years. The idea of being on these boards is you are supposed to network and make connections. I always got more interested in the work that they were doing and getting involved in the classroom or that type of thing, this board work, which I took on because it sounded interesting. I admired my friend for what he was doing. Accidentally, it turned into a career opportunity.
That's one thing also is being open to the unexpected. You could have a plan and you are going along and you are executing that plan, but you need to be looking to the side of the road and to each side, right and left and you are on to see if some other opportunity you had not thought of but might be an interesting one at this point in your career.
Lots of things happen that are not planned and someone was talking to me about, “It's not luck. It's chance.” I'm like, “What's the difference? Is not luck the same as chance?” English was not his first language, but what he meant was chances are an opportunity. If something falls in your path and you act on it. It is luck that it fell on your path, but it's the chance to do something different. It's good to always have your eyes open to those opportunities.
Things could fall in your lap, as it were, but if you don't do anything with it, then that's the next step. You have to decide to act and to explore it. It's also good. Other nonprofit leaders that I have spoken to have said, “It’s a nice way to figure out whether it's nonprofit you want to work for full-time, but also to get to know people is to work extern during law school or have some connection to the nonprofit.”
That unique connection of being on the board because you are not seeing the work on the ground as it's being done, but you are seeing it from a larger strategic level for the organization. You can have a comfort level of having been on the board in terms of how they operate and what the overall strategy and approach are. Say, “I'm on board with executing that, by working at the organization.” It can give you a comfort level in making that move that if it were a nonprofit you have never done anything with, that would be very different. I'm moving to a nonprofit and it's one I don't know anything about.
I knew all the players. Although, we now have new players. I knew some of the difficulties and issues going in. I knew the mission and I believed in the mission and wanted to participate in that. People said, “Nonprofits are going to be different,” and it is different. It's less organized and less structured. You don't have the staff and the paralegals.
You might not even have a shared file system. It's all of these things I keep saying, “It would be good to have one of those. That would be helpful.” Ken worked for Kaye Scholer way back when but has not done that in so many years and a lot of the people we bring in are either prosecutors or international law advocates. Having this law firm experience is a useful thing to have.
From the organizational standpoint and helping the teamwork together in a more integrated way.
I'm starting to appreciate all that bureaucracy.
There's a point at which infrastructure is good and then it veers into bureaucracy and that's its own set of challenges. A little bit of infrastructure is helpful. There are so many nonprofits are in that position because they are focusing on, “We have important work. We have a mission to do. We got to get that done,” and then you have to prioritize things because it can be a lot like drinking out of a fire hose in terms of moots that are there.
I feel like we can turn anybody away. You don't have a billing hours requirement that we do end up working a lot on Sundays overtime then. You want to help everybody out. You also need to finish the commitments you have already agreed to. Sometimes it does feel overwhelming.
Do you have private lawyers who work pro bono with you on the cases as well?
We do have some pro bono lawyers and sometimes we hire outside counsel like Arnold & Porter is doing some work for us. We do know that we have some limits.
That's one way to expand the reach, partnering with folks in that regard.
The different skills you acquire from the different times in your life are like threads weaving together perfectly.
We have a Title VII case here in California and we realized that we need employment counsel. I'm going to learn that on the ground.
Recognize the limits on when partnerships and collaborations are helpful, figure that out. That's often how you stretch the resources.
It sounds like you are cut out for doing nonprofit work yourself.
I have an understanding because you and I both do a lot of pro bono work for different nonprofits. We have seen that before you even came to the center. It's an exciting switch. At some point, it's good to shake things up, within a career as well. I always think that's one of the things I enjoy about appellate work is that because the judges are generalists, and we are to some degree too, because that's the value we bring. As you mentioned, it’s being able to say, “Here's what a generalist would like to see so that we fully comprehend everything,” but also that it changes each case. One case is an employment case, another is a trademark case.
Another one is a business toward or a contract case. It keeps it interesting because you are doing different kinds of subject matter. I think one of the skills of being an appellate lawyer that I don't think people recognize, but you mentioned it early on was that, “I learned how to get up to speed quickly in new things.” That's another good skill that translates well to your new position.
You got to move fast and encapsulate everything and then figure out what to do from there. I can't say how many cases I have learned the law on in that particular area very quickly for that case. It’s all about franchise law or all about something else. Read it all, synthesize it and go, “I have a foundation for where this case sits in that law and where it's developing.” That's what the court wants to know so I can explain it to the court, but I need that background in order to do it and I need it fast.
What I found helpful is the law of the articles. That's how I get up to speed. It's like finding the note where they are talking about all the key cases for a section, whatever it is you are working on. It's like, “I don't care what the note thinks should happen. I need to know what the questions are before the court.”
They are excellent compendiums of the case law in a particular area and you can get a good sense of it. “It's okay. I have got a good framework for where the cases are and the different positions they take from the law of the articles.” One of my first searches is Google Scholar. Let's find the most relevant law reviews if I need to get up to speed in an area and go from there and you can sometimes come up with some interesting arguments, even from thinking about the issues.
Sometimes a brilliant article, whether it goes the way you want or not, informs your thinking and helps you give analogies and how to make policy arguments that are so important to us in the appellate work.
I think that skill which often most people don't think about. I don't even think about it as being a separate skill, except you reminded me that it was, and then also I hear that so frequently from litigators that we work with or trial lawyers, “How did you figure that out fast?” I'm like, “That’s what we do. We need to be able to have that skill that's unique to us in a way in having to get that whole setting quickly.” I'm sure that's helpful in what you are doing too.
It's very helpful when I write an op-ed. Also, I know how to write policy cases because that’s so much of what I do as an appellate lawyer.
I always think too in the stories of women's professional trajectories in this show is that it seems like all these different threads come together and the tapestry is woven. When you look back, you look at everything and you say, “That makes sense. I had this experience, knowledge and all of these various skills from various things that I have done, which may seem unconnected, but they come together perfectly in a particular setting.” Whether in your work purely as an appellate lawyer or now at the center. It seems like all those different threads are also weaving together perfectly different skills from different times in your life.
I have been working on the firm logo. A graphic designer came up with something and I'm starting to draw a little picture.
I was like, “I'm wondering if that creativity or the artistic part is coming out as well.” When you think about especially appellate work of, being a good writer and having that background before going into the law is valuable. All good storytelling, whether it's legal or whatever, are all very effective. Think about your time as an artist is a level of creativity and maybe having a visual of how things should look or the story could be told. That is something unique to what you have brought to appellate law too, in terms of seeing the whole mosaic of the case and how to present the particular story.
I think of all the reading I did in my painting studio, too. Eddie Lazarus used to tell other people, “ Do you want to write well? Read good books.” I think that there's some truth to that. You incorporate a good post style and you learn how to write in a way that's interesting. Reading is very good advice.
That leads to the lightning round of questions which includes the question about books. We will start with that one. Who are your favorite authors?
When I was young and sitting in my studio, I loved the Russians, Dostoevsky, The Brothers Karamazov, Tolstoy and that whole reading different translations of those books. In several years, I find that I'm reading women authors more and more, not necessarily the new ones. I still read Jane Austen and Edith Wharton. I love Willa Cather. I even like reading Pearl S. Buck, who I had not discovered earlier. That's not intentionally, veering toward the women writers, but finding that pile of books next to my bed is a lot of authors. A lot of good women authors in fiction and nonfiction.
I know you are eclectic in your reading interests and range of authors. Good writing is good writing and good storytelling is good storytelling. I'm pretty eclectic about what I like to read too, in terms of learning new things or appreciating the writing. Mainly, it's the pile of books that I can't get to. All these books I get because I think they are so interesting and I'm going to get to them.
You don't always get to them. Maybe you get to a part of it and then you come back. I have had that before where I'm like, “I did not get to this book.” I should get to it and then you find the bookmark like, “I got to this point a couple of years ago. I wonder if I can get further this time.” That's what I find happening. Which talent would you most like to have but you don't?
I would love to be able to sing.
You have other artistic talents. Some people are like, “I would like to be able to do anything artistic,” but you have.
Related to that having a voice, I sometimes listen to someone like Richard Epstein. He talks a mile a minute. He does not stop for a drink of water and he's so clear. I wish I had that natural speaking skill. Maybe that's acquired over years of teaching and talking. To go to the Supreme Court for oral argument and not be so nervous that they are second-guessing themselves in every instance.
I think it was at a TED Talk that Neal Katyal was talking about in his preparations for SCOTUS. I always thought that some of the excellent advocates but maybe that had some unconventional training. Neal says, “I had an acting or voice coach come in to work with me so that I could make the presentation as clear as possible.” “You will be very efficient because I know I'm going to get a bunch of questions, so how do I present the points I want to present?”
I think that you are on to something there in terms of what are the different things that contribute to that level of advocacy. It's not the law or legal training. It’s always good to have things to work on. If you are not growing, then it's not fun. It's good to have things to add to your toolkit. If you could wake up tomorrow having gained one quality or ability besides singing, what would it be?
You have to prepare for the worst and keep hoping for the best at the same time.
I speak French and then German, not so well and I'm trying to learn Hebrew. I would love to have that alacrity with languages because my brain says, “We are going to put all foreign languages into one file.” When I try to speak French, the German comes out.
I don't know how people do that either because they all end up in the same mishmash together. Especially when you are learning a new language, your brain goes, “Different language,” and it fills in the slot with some other foreign language you know. Sometimes I don't even know that I'm like, “Some weird mix of Spanish, French, and something else is coming out of your mouth.” We need to compartmentalize these into different folders.
I agree. It does not do that. When I walk my dog, I will pick a language and I think, “Dog, you are going to listen to me in French,” and I still find the German words filling in the gaps.
It's the filling in the gap part that's fascinating because it's all in your brain. You don't notice it right away until people start looking at you funny. “What did you say?” “Was there a word that was a different language in there?” “Yeah. It's funny. I wish I had that too.” “That's a good observation.” People who know many languages like that and move fastly between them must have a different dividing line. It's amazing. Even like the gestures and all of the inflections and how people can change that between the languages, it is a remarkable ability to see. Who is your hero in real life?
That was one of those questions I left a question mark because I have so many.
In many different ways, there are people who are heroes for different aspects.
I admire the people I work with and their passion and fearlessness. I should find to model myself because I am very cautious. I do want to think about everything I say. I'm an appellate lawyer. We are not supposed to be passionate. I admire people who can do that.
With a serious commitment and passion to it.
I'm not afraid to speak passionately. My colleague Alyza Lewin can do that. I like to listen to Yossi Klein Halevi. Without losing his cool, he can remain passionate. Those are some of my heroes.
Isn’t it nice to work with some of your heroes? It felts good. For what in life do you feel most grateful?
That's easier because it would be my family. My husband, Lenox, I don't know how I would manage without him. He's very supportive of everything I do, even if it's something completely foreign to him. We both work at home and at the end of the day, I go down. He presents me with a cocktail. I look forward to that every day. We talk about things and that's fun, also, my two children who are now adults. I'm so grateful to have them as friends, even though I still continue to worry about them.
The relationship morphs, but the other is still there in terms of wanting to protect and worry.
Also, I can give advice.
Yes. That's what mothers are for.
Not according to my kids. “You can listen, just don't give me any advice.”
Given the choice of anyone in the world, who would you invite as a dinner guest?
This is not the right answer, but I would love to have you and all the people you have interviewed and we will do it together. It would be wonderful to get that collaborative group of women and have them exchange ideas.
That's a great idea. Now, you planted a seed. I will work something out because I had thought about the collective stories are so interesting and I like, “Some people know each other, but some people don't. Having that dialogue would be cool.” What is your motto if you have one?
It's from Mel Brooks. It's, “Hope for the best, expect the worst.” I hope for the best and I do expect the worst, which makes me a little too dark, but it's good. I always had to be a Girl Scout. I had to be prepared. You do have to prepare for the worst and keep hoping for the best at the same time.
That's a good balancing of light and dark, sweet and sour and also saying, “I'm going to be realistic. You want to be optimistic about things, but then you got to balance that a little bit.”
It’s very easy for me on the side of the worst, so I balance it out.
Thank you so much for joining the show. We are discussing so many things. I appreciate you being here, Rachel.
I look forward to talking to you.