Washington Lawyer

Legends in the Law: Jamie Gorelick

From Washington Lawyer, March 2011

By Kathryn Alfisi

A Conversation With Jamie Gorelick

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Jamie Gorelick’s career in the law spans more than three decades and encompasses private practice, government service, and corporate governance. Since 2003 Gorelick has been a partner at WilmerHale LLP where she is chair of the firm’s defense, national security and government contracts practice group as well as its public policy and strategy practice group. She also is a member of WilmerHale’s litigation/controversy department. Prior to joining WilmerHale, Gorelick was vice chair of Fannie Mae from 1997 to 2003. She was one of the longest serving deputy attorneys general of the United States and served as general counsel at the U.S. Department of Defense. Gorelick was a member of the National Commission on Terrorist Attacks Upon the United States (9/11 Commission) and served as D.C. Bar president from 1992 to 1993.

Tell me a little about your childhood. Where were you born?
I was born in Brooklyn in 1950. My father was in the service and my mother was an artist and a teacher. We moved to southwestern Louisiana; San Antonio, Texas; back to Brooklyn; and Levittown, New York. Ultimately, I spent most of my childhood in a suburb of New York City.

My father was born in Russia and immigrated to the United States when he was two years old, and my mother was born in this country to parents who had immigrated not long before she was born.

I had an all-American upbringing; pretty much a typical late 1950s, early 1960s childhood in America. My parents were active in the community. I was a Girl Scout.

What were your early career ambitions?
I do not remember having any particular career ambitions until I got to college and thought I would become a historian. I was academically oriented and I had a Fulbright scholarship to go to England after college. But then, in my senior year, I realized that I was not meant to be an academic and applied to law school.

Why did you change your mind?
I loved the intellectual part [of being a scholar], but I did not like the solitary part. It was a very good thing that, in my senior year in college, we had to write a very long thesis because it gave me a taste of what that life would be like. I found that spending all day with books and all night writing was not the life for me. In addition, I went to college from 1968 to 1972, which was a period of great tumult, unrest, and political activity in the country, and that made the prospect of living life in isolation seem less relevant to me. I wanted to be out there doing something.

Why did you decide to go to law school instead?
Like a lot of people, I thought law was a discipline that would be useful in many ways, and since my ambitions were quite unformed, it seemed like a good choice for me. I have an uncle who is a lawyer, but it wasn’t as if I had any real idea of what I would do in a legal career. I had been active during my high school years in the McCarthy campaign and then the Bobby Kennedy campaign, so I had had a little taste of politics and debate, which appealed to me. So while I did not know what I wanted to do specifically, I knew I wanted to do something in the larger community.

What was your time like at Harvard?
The undergraduate part of it was an intellectual feast. The other students were creative, thoughtful, and provocative. I thought that going to law school in the same place would simply be a continuation of that, which of course wasn’t true at all because the law school—as good a school as it was—was very much more a trade school, interested in teaching you the discipline of a profession. There were relatively few classes in which the predominant question was “why” and more classes where the question was “how” or “what.” I found that hard to adjust to.

How many women were in your class?
There were 75 women in a [law school] class of 550. When we divided up among the sections, there were somewhere between 15 and 18 women per section, which is not a lot. There were enough women that you had friends and colleagues, but there were few enough so you really felt bound by a common sense of struggle.

In a place as large as Harvard Law School, with as much competition and stress as it has, it was a gift to have a sense of unity and a sense of having something to prove to the world. My female classmates have stayed together all of these years. We have a listserv, people e-mail each other every day, and there are twice-yearly reunions. The fact that this group of women has stayed together as a mutual support group is telling. What a crucible the experience was! When I talk to young women coming up, I talk about this gift of a sense of struggle.

Did being a woman make you think you had more to prove?
I came to college thinking I had something to prove because I was the child of immigrants, the first in their families to go to college, and the first in their families to even approach being middle class. I had to prove that I could function, survive, and flourish in environments that were foreign or denied to my family. That has been a real motivation in my life, this sense of wanting to explore venues and environments that would otherwise be unknown to me. Being a woman just adds to that. Many places that would be foreign to me because of my background would be so because they were previously male bastions.

Did you know what type of law you wanted to go into while you were at school?
I spent a good deal of my time as a law student doing civil rights work. I ran the civil rights/civil liberties group, and I was active in the civil rights/civil liberties law review. The courses that interested me the most were the criminal law courses taught by Alan Dershowitz and Jim Vorenberg. Dershowitz’s class was the first one I had on the first day of my law school career, and it influenced me profoundly. I became his research assistant at the end of my first year and I worked on his cases. That was a great experience. He is a brilliant lawyer and professor and a provocative thinker who loved to take on hard cases. That stayed with me. The joy and the thrill of taking on a hard case and prevailing against all odds was just exhilarating to me. I could not remain engaged in corporate transactions or property disputes; they weren’t as compelling to me. I was drawn to criminal law and civil liberties work.

In my third year, I had the great luck to study with Nathan Lewin, who was a practitioner here in Washington at a small litigation boutique—Miller, Cassidy, Larroca & Lewin—that had been formed when Jack Miller left the Kennedy Justice Department where he had been the head of the Criminal Division. Nat came to Harvard Law through a special program that hired practitioners to join the faculty for a year. He taught white collar criminal defense, appellate advocacy, and First Amendment litigation, and I was able to take two of those three courses.

At the end of my third year, I was supposed to have a clerkship with Judge [William] Bryant here in the District Court, but one of the clerks who was supposed to leave for another job didn’t get the job, and so all of a sudden my clerkship disappeared. I went to talk to Lewin about it and he said, “Why don’t you come and talk to my firm?” and that is what I ended up doing.

What was it like starting your first legal job right out of college?
[Miller, Cassidy, Larroca & Lewin] was a little firm—seven partners and, at the time, two associates, including me. The first day, the managing partner sat me down and told me that he wanted me to feel comfortable at the firm, and that while I was the only woman there, he was sure that I would be able to handle it and that they were happy to have me there. Then he said, “I just want to tell you what the atmosphere is like here. The guys call each other by their first names and the gals, meaning the secretaries, call the guys by their first names unless there is a client around, in which case they call them by their last names.” As he talked about “the guys do this and the gals do that,” I asked him, What am I? He said, without skipping a beat, “Oh, you’re a guy.” This was my first introduction to how odd a duck I was in this water. I had to prove to my colleagues at the firm and in the white collar litigation bar that I was capable of being a litigator. The typical person who was in this type of practice was a man who had gone to work in the U.S. Attorney’s Office, had tried dozens of cases, and had gotten to know everybody else in the Office and in private practice. Everyone knew everybody and it felt like a closed set. I had to work really hard.

Were you intimidated at all by the challenges?
I am pretty fearless. But there were people who treated me in odd ways. There was a former judge who was a senior partner at a major New York law firm. He would address all his questions to Nat [Lewin], even though I was the one who had done all the factual development and spent all the time with the client. So Nat would be asked a question and he would ask me to respond. The other lawyer never once directly engaged me; it was beneath him. I do not know if that was because I was a woman or very junior at the firm, or both.

I had many experiences like this, but you have to have a sense of humor about it. And my colleagues at the firm were wonderful. They all wanted to work with people who were different than themselves. Jack Miller was a Minnesota Republican who worked in a Democratic administration and represented the Kennedys; John Cassidy was an Irish Catholic who worked for Jack at the Justice Department; Nat was an Orthodox Jew who came out of the Solicitor General’s Office and was born in Poland. All the younger partners and associates were similarly different. Also, you couldn’t be hierarchical in a firm of nine people.

How long were you the only female attorney at the firm?
I was the first woman at the firm and it was many years before they became convinced that another one was a right fit. I think that was in part because I had worked out. You could punch me in the arm and it wouldn’t seem inappropriate, whereas if you greeted most women that way they would say, “Why are you punching me in the arm?” I think once my colleagues recognized that they were not going to be able to hire any new women if they were simply looking for a clone of me, they took some more risks and those risks paid off very well.

How did you first get involved in government service?
During my third year as an associate, I was recruited by a woman who was then general counsel at the U.S. Department of Defense (DOD) to become vice chair of a commission at the Pentagon. I did that part-time while I worked at the firm. About a year and a half later, the commission came to an end at about the same time as the deputy secretary of defense was nominated to become secretary of energy. I joined his transition team and he asked me to stay. So I stayed on at the U.S. Department of Energy full-time for about six months.

What was this introduction to government like for you?
It was great. During my time at DOD I got a view of the entire department and saw the audit, inspection, and investigation components of the Army, Navy, and Air Force. At the Energy Department, I worked directly for the secretary and the deputy so I got a real bird’s eye view of how the government works. This was during the oil crisis, so there were shortages, there were lines at gas stations, and people did not have enough heating oil. There was a huge debate about oil prices and whether we should control them, and about the fate of synthetic fuels and coal and gas.

My learning curve was so high at that time. When I started, I did not know what the House did or what the Senate did, but I learned really fast. When I was in law school, I thought all law developed by cases presented to judges on the merits, but what I found out in government was that regulations were affected very much by politics, and that laws are not made on the merits alone. For somebody who was under 30 years old to return to the practice of law with that perspective was great.

During my time at the Energy Department, the country was brought to its knees by the [Organization of Petroleum Exporting Countries]. I saw a president struggling to deal with this. I saw the coal state senators coalescing to block anything that would tilt toward energy efficiency. I saw how policy was made in the executive branch and between the executive and legislative branches. I saw how fast decisions were made relative to the time it takes cases to develop in court, and what a broad swath these policy decisions would cut. It was stunning to me that a well-placed letter to a member of Congress could sometimes achieve more for a given project than [would] briefs in 10 appellate cases. Although that wasn’t always the case, it made me realize that if you want to help a client or a cause get from point A to point B, you have to understand how all three branches of the government work and have a coordinated approach to a problem.

After your time at the Energy Department, you stayed away from government for a while.
For a dozen years there was no Democratic administration in which to work. But it was a good time for practicing law and for me to work on becoming a partner, building my own practice, and thinking about what I wanted to do in life. I did pro bono work on women’s rights and joined the board of the National Women’s Law Center. I became very involved in the D.C. Bar, first with the Legal Ethics Committee, then on the Board of Governors, and then as Bar president. All of that was a great experience for me. It was fun and interesting and allowed me to get involved in the community. You have to run for office with a constituency of [then] 80,000 people. There were 33 different bar associations in the city. I learned about this town in a way I hadn’t before. I engaged with the city council on issues of access to justice. I learned how the nonprofit groups worked. I met people in large firms and in small firms. I came to see Washington as more of a village than an impenetrable city.

What do you think lawyers can gain from Bar service?
For one thing, you can learn a lot about the substance of whatever you are involved in. I became the ethics partner in my law firm because I was spending so much time on the ethics committee and became very comfortable with and knowledgeable about the ethical rules. For another, you get to learn about your fellow lawyers and feel comfortable in various venues. You learn who does what in the law firms. You get to see how justice is delivered at the street level. These are all important things if you want to be a good citizen of the District of Columbia.

What about your family life? Do you have children?
Yes, my husband and I have two children. They arrived rather late in life for us. They were young kids when I was at the Justice and Defense Departments. There were advantages to having kids when I was older; I had more autonomy and say in how I spent my time. The disadvantage was that I had non-delegable responsibilities.

What advice do you have for lawyers who are trying to balance their professional life with their family life?
My advice is two-fold. One is that the choices that you make are very individual and you need to understand your own tolerance for chaos and ambiguity. If you are someone who needs to have everything in its place and have every need met, then trying to take on more and sometimes conflicting obligations is not for you. The second bit of advice is that it is very difficult to do everything at once. If you can stage your career such that you spend more time as a parent at certain points and more time on your career at other points, you are probably going to be better off. If the institutions with which you are affiliated offer flexibility, that will help you, but it is not a panacea.

Some people think there is one model that they ought to live by, but it is quite unpredictable what each person will want. The most ambitious person might plan to leave work for just a month to give birth, but finds she cannot tear herself away from her child and is very unhappy at work. The person who is ambivalent about her career might find she likes work because it is a space that is her own and not bound up with her kids. And you have every reaction in between.

I have been involved in trying to help build work–life balance models at every institution I have been affiliated with. The reason is that those tools are necessary for each type of person. Again, they do not solve the problem, but they are there for you to use to make it easier. Another piece of advice is lower your standards. When I was at the Justice Department, our children were still quite young. My husband was the chief of medicine at Georgetown. After I had been deputy attorney general for three-plus years, our house was literally imploding. The plumbing, the electrical—everything was caving in.

Tell me about your second time at DOD.
That was a great experience. Going to work every day to work with people who have, at a very basic level, decided they are willing to give up their lives for their country, for their jobs, is an extraordinary thing. You are working with enormous dedication, energy, and commitment all around you. DOD is the biggest of everything—it has the biggest health care system, the biggest educational system—it has more of everything than nearly any institution on Earth, including more lawyers. The number of issues that come up on a given day is astounding, and the quality of the people around you trying to deal with those issues is really impressive. Ultimately, DOD, the military departments are the most operationally competent of any element of government or, indeed, industry. They can build whole cities in a week. I loved working there. It was one of the best jobs I have ever had, and that was also because I was working with Secretary Bill Perry and Deputy Secretary John Deutch, who were terrific leaders.

Can you tell me about some of the big issues you dealt with while at DOD?
We dealt with “Don’t Ask, Don’t Tell;” Improving the role of women in combat; and the deployment of our troops in U.S. peacekeeping missions, which was very complicated.

What are your views on “Don’t Ask, Don’t Tell?”
It wasn’t what President Clinton wanted and it wasn’t what his appointees at the Pentagon thought would happen when we got there, but there was tremendous resistance in Congress to changing the policy toward gays, and the way in which the president announced it, without letting it percolate at DOD, made it much more difficult.

I thought at the time, and General [Colin] Powell has said this since, that “Don’t Ask, Don’t Tell” was a way station. The senior military officers knew that they had gay service members around them, but the enlisted personnel and the mid-level personnel thought that there weren’t any gays in the military. That was because, of course, you were discharged if you revealed that you were gay. That made the views about gay people highly distorted. It seemed inevitable to me that society would become more welcoming to gays. That’s reflected interestingly in the report [concerning gays in the military] that Secretary [Robert] Gates released. Last year, I helped the Center for American Progress in its efforts to repeal “Don’t Ask, Don’t Tell.”

Tell me about your relationship with Janet Reno with whom you worked while at the Justice Department.
I had gotten to know her in a very artificial circumstance. When then President-elect Clinton picked Janet to become attorney general, she did not really know any of his people so they needed to put together a confirmation team for her. At the time, I was already going to be at the Defense Department, so there would not have been any issue for me in participating on her team—as there would have been if I had been in private practice—and so I was asked to take on that job. I got to know Janet by asking lots of personal questions in preparation for her hearing, and by preparing her for questions on issues that she hadn’t dealt with when she was a state’s attorney.

We spent a lot of time talking through issues, determining how she would answer questions, dealing with the many follow-up questions about her that the Senate had. I came to like her enormously, and we developed a good and close friendship. When she and her then deputy Phil Heymann decided to part ways, she called and asked if I would allow her to put my name into the White House to become her deputy. I told her I thought she was crazy because it was hard enough for the administration to have a female attorney general, but to have the top two people in the department be women was a bridge too far, even for a progressive Democratic president. So I was surprised by the decision to nominate me.

What did you learn about her and from her?
She had an enormous appetite and capacity for learning. She made decisions by really burrowing into issues. That meant that her decisions had great intellectual integrity because she really paid attention; she was her own quality control. The disadvantage in a job like attorney general is that there aren’t enough hours in the day to luxuriate in each of these issues, so what she and I agreed to was that I would try to get the issues presented to her in their essence so she wouldn’t have to spend the time boiling them down and instead could spend the time understanding the hard questions and reaching her own judgment. I think that helped her and it was also a very interesting job for me. What I learned from her is about leading with your values. She has very deeply held values that go to the importance of our system of justice in this country, our access to it, and the responsibilities of a prosecutor. She led, as attorney general, from this deep sense of right and wrong, which is very powerful.

I would imagine serving as deputy attorney general is a daunting role.
The Justice Department is a sprawling enterprise. I think I had 32 direct reports plus the 93 U.S. attorneys—with few intervening layers of management. That’s a stunning span of control. The issues were fabulous, but the most you ever got to spend on one of them was 15 minutes. When you are a lawyer, the trick is to know when you have studied a question enough, but it is usually in days and weeks, not in minutes.

How do you deal with that?
You hire alter egos, people such as Seth Waxman and Merrick Garland, who are your contemporaries and whose judgment you trust completely. You empower them. You have to really let them do their jobs.

How long were you at the Justice Department?
I was there three-plus years. It is a hard job to stay in for a long period of time because you have to lean forward all the time. You have to be in everybody’s business all the time, because otherwise you are just constantly surprised and, thus, reactive. You have to be able to “cycle short” to deal with whatever crisis or emergency is happening and “cycle long” to make sure you are following and pursuing the long-term objectives of the department. Those are really good management skills to build, but it is also very taxing, particularly if, as I did, you have a family. The job was like a sprint, but there’s just so long that you can sprint. If you stop sprinting and just start treating it as a normal job, you are dead.

Tell me about some of the issues you dealt with while you were at the Justice Department.
We had the Oklahoma City bombing and other domestic terrorism issues—church bombings, abortion clinic bombings. There was fear and concern among the very right wing that sometimes expressed itself in violence. We had a much more aggressive civil rights agenda, and making sure that the choices that we made were the right ones was very hard, both in deciding what was right and in getting alignment within the department. We had the Microsoft investigation and more aggressive antitrust enforcement. We ramped up white collar criminal enforcement. We had the issue of the [U.S.] border and complaints that it was out of control, which it had been for many years and is still. We had the beginnings of international terrorism. The FBI was concerned with Hamas and Hezbollah.

You have faced some strong criticisms during your career. How have you dealt with them?
You have to be able to put it behind you. Do you ever completely? No. Criticism bothers me like it bothers other people, but I do not let it become debilitating. I am sure that one reaction to criticism is to shrink from any job or environment where you could be criticized. I think it is really important for people to stay in the arena. If they can be driven from the arena by criticism, that is not good for society.

John Ashcroft’s criticisms of me, for example, were designed to deflect criticism from him and his management of counterterrorism at [the Justice Department]. It was a very cynical move. He knew, and was well-advised by his own people, that what he was going to do was not accurate and not fair—that his own deputy had reissued the very policy that he criticized me for—but he did it anyway to avoid being criticized for cutting the counterterrorism budget and not caring about counterterrorism at all.

I do believe that, in the end, the truth becomes understood. I don’t have it in me to shrink from saying what I want to say or from doing what I want to do because somebody might raise a question or say something nasty about me. It’s just not in me. But anybody who sticks his head above the foxhole today risks getting shot at. There’s a meanness to the public debate that is scaring people away. You just have to let it roll off of you because otherwise you are paralyzed.

How did you come to work at Fannie Mae?
One day Tom Donilon, who is now the national security advisor, called me to ask, on behalf of [then Fannie Mae Chief Executive Officer] Jim Johnson, if I would talk with him about becoming vice chair at Fannie Mae. By that time I had announced I was leaving [the Justice Department] and I had gotten a number of calls. After I left, I talked to law firms, a number of companies, and a couple of universities.

What attracted you to the Fannie Mae offer?
I had really liked the management challenge at the Justice Department and I thought it would be interesting to see if I could translate that into management in the private sector. I had practiced law for 18 years, so I was looking to see what other experiences were out there. And I liked the housing mission; I believe in the benefits of home ownership and of affordable rental housing.

Also, Fannie Mae was local, which many of the other jobs I had been offered were not. My husband was very firmly embedded at Georgetown, and my kids liked their school and had close friends. And, after years of trying to convince my parents to move from New York to Washington, they were finally about to move here.

How long were you at Fannie Mae and why did you decide to leave?
I arrived at Fannie Mae in mid-1997 and was named to the 9/11 Commission in December 2002. I joined WilmerHale in the spring 2003.

It was time for me to leave Fannie Mae. I enjoyed it while I was there, but I think that, long term, it wasn’t the place for me. There was no way I could be on the 9/11 Commission while at Fannie Mae. I accepted a half-time job here at WilmerHale, which is what I did until the commission’s work ended in 2005.

What was it like serving on the 9/11 Commission?
It was fascinating; it was the deepest, longest look ever at our government, and I don’t know if it will ever be replicated. We had a superb staff, which worked together very well, and the commission developed very strong bipartisanship in the course of dealing with some of the hardest issues you can imagine. If I never have another government job, I will be totally satisfied with the experiences I have had.

How has your time at WilmerHale been like?
All the different experiences that I have been blessed to have during my career have been put to good use here, principally in dealing with crises that affect companies and individuals and helping them navigate through them. WilmerHale has been the perfect firm for me. It understands the importance of public service in preparing lawyers to help clients—and it respects public service for its own sake. It is a firm with great values and superb lawyers.

What about your work on the BP case?
We are representing the company in relation to the many Washington-based inquiries. We have a virtual firm created among BP Legal, WilmerHale, Arnold & Porter, and Kirkland & Ellis handling the matter jointly. We have taken the lead on the Washington venues.

[The BP case] has engineering and technical issues that are fascinating. It has cultural issues—a British company in a U.S. environment. It has environmental issues, legislative issues, and regulatory issues. We have multiple simultaneous inquiries. In an incredibly compressed period of time, we have had to deal with multiple layers of inquiry, with an overlay of press and politics. Helping the company navigate through this has been fascinating.

You are really busy right now, but is there any interest in slowing down your professional life?
Well, I turned 60 last May and I have other things that I do in addition to practicing law. I am on the United Technologies board. I was on the Schlumberger board, but I resigned when I undertook the BP representation. I serve on the boards of the John D. and Catherine T. MacArthur Foundation, the Urban Institute, and the Washington Legal Clinic for the Homeless. I have always had a number of nonprofit involvements. There are many different things that interest me. I like being outdoors and being athletic. I love being with my family. I have many friends. I think that during the next five years, if I remain in as good health as I am today, I would like to have as diverse a professional life as I can and as diverse a life outside of work as I can.

How do you think the practice of law has changed since you first started your career? Is it more difficult to be a lawyer today?
Every generation faces different challenges. It is not nearly as challenging for a woman to find a job in the law as when I started; indeed, women are in the majority of incoming classes of lawyers. There were no part-time jobs or flexibility when I entered the practice of law, so in those respects it is easier. But there are other ways in which it is harder. The practice of law is, in many ways, more demanding, more of a business, than it used to be. But it is still an endlessly fascinating career that offers enormous opportunities. You can practice in dozens of different settings. You can move between jobs in a way that was unheard of when I first started practicing law, when the mode was that you signed up at a firm and stayed there for life. For the enterprising person willing to take some risks, there is much to do. It’s a feast. You just have to think deeply about what you might enjoy and take a risk every once in a while.

Reach D.C. Bar staff writer Kathryn Alfisi at kalfisi@dcbar.org.

Periodically Washington Lawyer features a conversation with a senior member of the District of Columbia Bar reflecting on his or her career as a lawyer. The “Legends in the Law” are selected by the District of Columbia Bar’s Publications Committee on the basis of their prominence in their profession and their individual impact on the law and the legal profession in the District of Columbia. For past interviews, visit www.dcbar.org/legends.