Common Ground (2 page)

S
unlight struck the gnarled limbs outside his window, casting a thicket of light and shadow on the white clapboards. From his desk high under the eaves, Colin Diver could watch students strolling the paths of Cambridge Common or playing softball on the neatly trimmed diamond. It was one of those brisk afternoons in early spring, the kind of day which in years past had lured him into the dappled light, rejoicing in his good fortune. But here he lurked in his study, walled in by books, overcome by doubt.

People kept telling him this should be the best time of his life, the moment he’d been slogging toward these past three years. He was about to graduate near the top of his class; he’d won a highly prized position on the
Harvard Law Review
, and even before graduation had a place reserved for him at a distinguished Washington law firm. Altogether his prospects were splendid. But he’d been in the doldrums all that late winter and early spring of 1968.

It wasn’t the prospect of leaving Cambridge. He was as susceptible as anyone to the springtime charms of this place: the white steeple of Memorial Church breaking clean above the elms; the band, splendid in their crimson blazers, crashing through “Ten Thousand Men of Harvard” on the steps of Widener Library; the eight-man crews at dusk dipping their oars in the Charles. But such pleasures were largely reserved for undergraduates; most law students were simply too busy. Harried from Tax to Trusts, from Equity to Evidence, they drudged their way through a different Cambridge. Many might have agreed with Oliver Wendell Holmes, Jr., who entered the Law School in 1864 and recalled later: “One found oneself plunged in a thick fog of details—in a black and frozen night, in which were no flowers, no spring, no easy joys.”

Colin had no aversion to legal labors, no trouble heeding his professors’ admonitions to “think like a lawyer,” for he had learned the law at his mother’s knee. Ethleen Diver was among the first women to practice law in a major
Boston firm, though the stately old house of Choate, Hall & Stewart had made her wait for that privilege. She’d begun there as a legal secretary in 1926, but even after she took her law degree and passed the bar, her employers had kept her passing the Hukwa tea and S.S. Pierce biscuits for a quarter century. Only in 1951, when she threatened to quit, had they reluctantly permitted her to take on cases of her own. Even then she got only the legal scut work—probate, real estate, income taxes—all the stuff nobody else wanted. But Ethleen didn’t mind. She was like a spurned lover who, deep into middle age, had been accepted by the object of her affection. It was all she’d ever wanted.

When Colin was young, his mother took him along to county courthouses, where he sat in the dim old courtrooms mesmerized by adoption or divorce proceedings. When he was a little older, she put him to work copying ancient deeds from dusty volumes. Now and again she took him to the firm’s State Street offices, where he watched the solemn partners in conference. Colin didn’t like the way they’d treated his mother; he resented it more than she did. But somehow, by the time he was a senior at Amherst, he had inherited his mother’s passion for the law.

He was very good at it. His first year at Harvard he’d ranked sixth in a class of 550, thereby earning election to the
Law Review
. Later he became Supreme Court Note Editor, the second-ranking position in the journal’s hierarchy. Colin spent forty hours a week at the
Review
. His office there was crammed with copies of
U.S. Law Week;
manuscripts; green, pink, and blue galleys; lawbooks; sandwich wrappings, coffee cups, and aspirin. One day his wife, Joan, asked with a wry grin whether he wanted his breakfast served there too.

But such labors were well worth it. For the
Law Review
unrolled a crimson carpet through a lawyer’s life—bringing with it prime clerkships, offers from prestigious law firms, and ultimately partnerships worth six figures a year, professorships at the best law schools, judgeships right up to the Supreme Court, The
Review
boasted such alumni as Felix Frankfurter, Dean Acheson, Elliot Richardson, Joseph Califano, and Archibald MacLeish. It was a ticket of admission to the American establishment.

The trouble was, Colin didn’t know whether he wanted to join such an establishment, one which had drawn the country into a terrible war, stirring dissent across the land that spring.

He was no radical. Having grown to political consciousness in the Massachusetts of John Fitzgerald Kennedy, he had modeled himself on that young paragon: idealistic and energetic, but cool and ironic. In October 1963, during Colin’s junior year at Amherst, Kennedy had come to dedicate the college’s new Robert Frost Library, receive an honorary degree, and deliver one of his most stirring addresses: “What good is a great private college unless it serves a great national purpose?” he had asked. “The problems we face are staggering both at home and abroad. We need the services of every educated man and woman.”

The President’s visit was marred by what for those days was a most unusual
incident. Sixty students and junior faculty stood through the speech with placards calling for a “Civil Rights Law in ’63.” Dressed neatly in ties and jackets, they uttered not a word during the proceedings. But even this most discreet of demonstrations had been widely denounced as “ridiculous” and “unbecoming the dignity of Amherst.” Colin Diver shared that view: he couldn’t imagine why anyone would want to embarrass America’s bold new leader.

A month later, Kennedy was dead in Dallas. Amherst’s president, Calvin Plimpton, told reporters, “Four weeks ago he was here. We saw him; we heard him; and we knew him. He was one of us, for he was our most recent alumnus.” Colin shared that sense of personal loss, Kennedy had been the bright star at the center of his political universe. For years he would try to navigate by its recollected light.

But by the time he reached Cambridge, student life had changed beyond recognition. Harvard undergraduates in the mid-sixties were no longer drawn to Kennedy’s detached and prudent style; they sought authenticity, commitment, and confrontation. Even the younger law students coming on behind Colin reflected this shifting mood. In October 1967, fifty law students from Cambridge had joined the March on the Pentagon, parading behind a large crimson banner emblazoned “Harvard Law.”

Colin was sympathetic to the war protesters, if only because of his precarious draft status. For years he’d stayed a step ahead of the mounting monthly calls, relying first on his college ranking and then—as deferments tightened—on marriage, law school, his first child. But he wasn’t sure how long he could remain exempt. As the war news nagged at him, he had edged cautiously into Cambridge’s anti-war movement.

On November 9, he had been among four hundred students and faculty who filled Langdell Hall for the law school’s first Vietnam “teach-in.” Professor Paul Bator set the tone for the evening when he warned, “We cannot let the lawyer’s cult of effectiveness reduce us to immobility. Martin Luther King’s bus boycotters in Montgomery didn’t go through a lawyerlike screening process and yet they started a revolution. We have to be a little bold. We have to make waves.”

With words like those in their ears, members of the Law School class of 1968 began to make their career decisions. A few years before, choice was scarcely necessary; through the fifties and early sixties, the overwhelming majority of graduates entered private practice, generally with large corporate firms. But the new social activism had rendered such conventional careers less automatic. By 1967, the percentage entering private practice—as opposed to clerkships, research, teaching, legal services, or government—fell below 50 percent for the first time.

Confronted with this new skepticism about establishment careers, the major law firms tried to sweeten the pot. In February 1968, the premium New York firm of Cravath, Swaine & Moore stunned the legal world by raising its starting salary to $15,000. Others quickly followed. But cash alone had little
allure for the class of 1968. According to a poll that spring, a majority of Harvard’s third-year law students were more attracted by ample opportunities for
pro bono
activities on behalf of worthy causes. That majority rose to 75 percent among Colin’s classmates at the
Law Review
, who were polled during a special meeting at the magazine’s offices. Only four of the twenty-four editors said they would be greatly influenced by an offer of $15,000. Some said they would flatly refuse to work for most big firms, who “always seem to be representing the giant corporations against the little guy.” One of the activists admonished his more traditional colleagues, “Your natural and understandable ambition for illustrious careers seems to be clouding your vision about what is right in this country and what is simply wrong.”

Such was the dilemma which had bedeviled Colin all that winter. Ranking near the top of his class, he had many options, but each had its drawbacks. Clerking for some eminent judge meant more legal research, just what he’d been doing for years on the
Review
. Government was more appealing, but none of the low-level jobs for which he qualified captured his imagination. His best route to a responsible government position would be through a private firm specializing in administrative law. But most such firms were heavily involved in lobbying for industry, an activity which Colin didn’t find palatable.

For months that winter, he’d agonized over his decision. He’d discussed it for hours with Joan, mulling over the alternatives, weighing one against another. He had similar sessions with his best friend and
Law Review
colleague, David Mann, arguing about “the nature of the law.” Harvard seemed to regard the law as a set of scales designed to keep society in eternal equilibrium. Colin and David could no longer accept that traditional notion, but neither could they endorse the radicals’ concept of the law as a hammer to smash the barricades of vested interest. Slowly, they came to view it as a lever with which to pry up the mossy rocks of privilege, bringing air and light to the teeming precincts beneath.

Or to use another metaphor of which they were fond, most private law practice was “greasing the wheels of capitalism.” Neither David nor Colin wanted to be a wheel greaser. “Somebody’s got to do it,” David would say. “Perhaps,” Colin replied, “but why does it have to be me?”

In the end neither of them found a practical alternative to private practice. In mid-February, David signed on with Dinsmore, Shohl, Coates & Deupree, a corporate firm in his hometown of Cincinnati. A few weeks later, Colin accepted an offer from Wilmer, Cutler & Pickering, a prominent administrative law firm with spacious offices three blocks from the White House. His friends congratulated him, for although it was barely six years old, W, C & P already ranked as one of Washington’s most prestigious firms.

Its prominence derived largely from its most active partner, Lloyd Cutler, who was rapidly emerging as the capital’s principal power broker. More than any other Washington lawyer, he had learned to straddle the public and private interest. A former New Deal official, Cutler was a 1930s liberal who called himself “a believer in social change.” His firm did prodigious
pro bono
work,
from fighting a New Orleans expressway to representing black clients in Baltimore. He was the first secretary to the Lawyers’ Committee for Civil Rights, later general counsel to President Johnson’s Committee on Urban Housing.

But Cutler also specialized in representing industrial giants in their jousts with government. His firm spoke for J. P. Morgan & Co. against banking reform; for J. C. Penney on consumer legislation; for American Airlines and IBM on tax matters. He personally represented the American Automobile Manufacturers’ Association in its bitter struggles with Ralph Nader over automobile safety, and the Pharmaceutical Manufacturers’ Association in legislative sparring over drug pricing.

Cutler acknowledged no contradiction between his two roles, firmly believing that differences between big business and big government were reconcilable because they were rooted in honest misunderstandings, not malice or greed. His critics were less charitable. Michael Pertschuk, general counsel to the Senate Commerce Committee, called Cutler “a genius, but an evil genius.”

Colin’s decision to work for W, C & P had been an uneasy compromise at best. The $14,000 salary was handsome, but to him relatively unimportant; the promise of
pro bono
work was appealing, but most attractive of all was the prospect of getting his feet wet in administrative law and, ultimately, in the world of public affairs. Yet his decision continued to disturb him. He felt increasingly uneasy about going to work for a man who had defended some of the seamier aspects of American business.

As the winter wore on, Colin grew more and more depressed. Somehow the future had lost its lure. At the dinner table, he would lapse into prolonged silences, then mope around the apartment all evening. Joan tried occupational therapy. She bought the makings of a rya rug and for hours that March she and Colin would sit silently on the couch, hooking thirteen shades of yarn. Other nights, after working late at the
Law Review
, he would find himself staring moodily over a cup of muddy coffee at the huge Miró mural which dominated the north wall of the Harkness cafeteria and which somehow echoed his mood. Swimming in a bilious green sea were huge, menacing creatures—an octopus, its tentacles extended, and a sea scorpion, searching for prey. Suspended among the monsters was a humanoid face, staring out through expressionless eyes, one orange, the other green.