Justice White and Phil Weiser

What I Learned from Justice “Whizzer” White

Working at the Supreme Court was an incredible experience, allowing me to learn from two legends, Justices White and Ginsburg. In this article, I will share what I learned from working with Justice Byron White.

In the summer of 1994, I moved to Colorado after graduating law school to work for Judge David Ebel, who serves on the Tenth Circuit Court of Appeals. Just before I began my job as a law clerk to Judge Ebel, the Tenth Circuit moved into the Byron White Courthouse, where Justice Byron White kept his summer chambers. I met him shortly after I started working in the building that bears his name.

The following spring, Justice White hired me as his law clerk for the upcoming year’s term of the Supreme Court. At the time, Justice White was a retired Justice and joined a federal court of appeals for a single sitting—that is, hearing a week’s cases. As such, he only hired one clerk and lent that clerk out to an active judge. In my case, he agreed to share me with his successor, Justice Ruth Bader Ginsburg.

Justice Byron White was a true giant in the law and in politics—a Supreme Court Justice for over thirty years, Bobby Kennedy’s right-hand man (and Deputy Attorney General) at the Justice Department, and a leading figure in Colorado’s legal community. He graduated first in his class at Yale Law School while taking time out to play NFL football, where he led the league in rushing. Former Supreme Court Justice and Yale Law classmate Potter Stewart (famous for suggesting the “I know it when I see it” test for obscene materials) related that Justice White was both “Clark Kent and Superman.”

Justice White never forgot where he came from or let his success go to his head. Born in Wellington, Colorado, he grew up in a farming community where people were struggling. He said of his childhood, “The farmers weren’t making much money. There was very little money around Wellington, and I suppose you could say by the normal standards of today we were all quite poor, although we didn’t necessarily feel poor because everyone was more or less the same.” For Justice White, his humility came from his humble beginnings that he never forgot. And one important lesson that he demonstrated by example is that there is no excuse for arrogance, no matter how successful you are.

Justice White valued relationships, and he and his wife Marion welcomed his law clerks into their family. He was clear with me that when he hired law clerks, he was not solely focused on traditional academic credentials. He also cared about what kind of people his clerks were and how they related to others—what we might call “emotional intelligence,” or “EQ.” As such, he hired graduates from a range of law schools, enabling people like me to have an opportunity to work at the Supreme Court. Most Justices, by contrast, hired disproportionately (almost exclusively in some cases) from Harvard and Yale. The lesson in Justice White’s selection process is that pure IQ can be overrated, and EQ can be underrated.

Finally, I continue to carry with me Justice White’s professionalism and attention to detail. Judge David Ebel, who hired me to work with him on the Tenth Circuit and had clerked for Justice White years before, put this lesson succinctly, “I am not afraid of what I don’t know; I am afraid of what I think I know.” At an oral argument in one of the cases Justice White heard during my clerkship, the lawyer arguing the case (who clearly knew the issues very well) said to Justice White, “Excuse me, Justice, but this is my first case and I am nervous.” Justice White replied, “Stay nervous, counsel.” And I have carried that wise advice—and Justice White’s counsel to remain careful and be professional in whatever you do—with me throughout my career.

As I campaign across our great state to be Colorado’s next Attorney General, I know that Justice White would be proud of this career move. Justice White appreciated those willing to step into the arena and to serve the public, particularly by running for office. As I take on this new challenge, the lessons I learned from Justice White—about humility, about relationships, and about professionalism—guide me on this journey. They will also inspire me to be the best Attorney General I can be if elected to the position.

--Originally published in North Forty News.


Phil Weiser

The First 100 Days

Last Friday marked the 100th day of this campaign. While we have a long road ahead of us, I wanted to share some stats with you from these first 100 days (the graphic, and below, the stats are typed out).

100 Day Graphic
100 Day Graphic
  • Drove 5,748 miles
  • Held events in 31 counties
  • Drank 263 iced teas
  • Met with 2,245 Coloradans
  • Recruited 300+ volunteers
  • Won 1 bake-off with Bubby's rugelach recipe
  • Lost 1 suitcase

This adventure has broadened my perspective on our great state and the issues we are facing in the years ahead — and is a lot of fun. During the last 100 days, I have met so many great Coloradans as I have traveled all over our great state. And I’ve only lost 1 suitcase along the way (in Craig, Colorado and I have since retrieved it)!

Here’s to many more days of campaigning around our beautiful state and getting to know many truly special fellow Coloradans.


Democracy

Lessons from Charlottesville

In the wake of an act of terrorism and hate in Charleston, South Carolina several years ago, President Obama exemplified our nation’s moral compass, condemning the white supremacist who perpetrated the act, calling on all Americans to rise above our past, and famously singing “Amazing Grace” at the memorial service. This weekend, President Trump could not find the words to condemn an act of hate and terror by a white supremacist that injured dozens of people who were calling for tolerance and taking a stand against white supremacy. The Daily Stormer, a neo-Nazi publication, celebrated President Trump’s response to the tragedy, applauding that when he was asked to condemn the neo-Nazi marchers, President Trump walked out of the room.

President Trump’s instinct to blame “many sides” gave comfort to white supremacists who he had refused to call out for their un-American and hateful conduct and viewpoints. Virginia Attorney General Mark Herring, by contrast, emphasized that the “violence, chaos, and apparent loss of life in Charlottesville is not the fault of ‘many sides.’ It is [the fault of] racists and white supremacists.” Senator Orrin Hatch took a similar tone, stating that “We should call evil by its name. My brother didn’t give his life fighting Hitler for Nazi ideas to go unchallenged here at home.”

For me, like Senator Hatch, the battle against Nazi ideology is personal. My mother was born in a concentration camp, bringing light out of darkness. She was named, by my grandmother, “Estare,” meaning “star” of liberation. My grandparents, after surviving the Holocaust, came to our country because of its commitment to freedom and opportunity. They appreciated our country’s tradition of supporting immigrants and giving them a fair shot.

We in Colorado value the ethos of our nation’s motto:  E Pluribus Unum, out of many, one. In Colorado, we pull for one another to thrive and believe we all deserve a fair chance to succeed in life, regardless of our religion, race, or ethnicity. In one of our proudest moments, Governor Ralph Carr opposed Japanese internment camps during World War II. Today, we must all call out evil when it emerges, condemning white supremacy and hate before they have a chance to take root.  As our next Attorney General, I will do just that and continue our nation’s fight for equality, freedom, and opportunity for all.  


David Skaggs

Guest Commentary: David Skaggs - Phil Weiser Will Protect the Rights of Coloradans as Our Attorney General

In 1999, after I stepped down from Congress, I took my experience to the classroom. That fall, I taught a seminar on separation of powers at the University of Colorado Law School with a (then) young law professor, Phil Weiser. The course offered me a chance to get to know Phil and to reflect on the importance of separation of powers and checks and balances.

That topic is more important today than ever because Congress is not exerting its “check” and holding the executive branch accountable. State Attorneys General—and not Congress—are now acting as a crucial—and often the only—check against unlawful or unconstitutional action by the executive branch. That’s one reason I am so happy Phil Weiser is now running to be Colorado’s next Attorney General.

State AGs and the Separation of Powers

Colorado’s Attorney General represents all Coloradans: defending our civil rights, protecting our land, air, and water, and fighting for consumers, workers, and citizens to be treated fairly. A central role that should be played by the AG’s office is to protect Coloradans’ rights from infringement by the federal government. So if the federal government does something unconstitutional or illegal, our AG needs to be there to protect us. The ongoing litigation over the unconstitutional travel ban—brought by a number of brave AGs (not including Colorado’s)—is a case in point.

At this challenging time, the system of checks and balances that the Constitution’s Framers envisioned has special importance and relevance. But a key element of that system is being neglected: Congress is not providing the rigorous oversight of the executive branch; Congress is not doing its job.

Of course, separation of powers, and its corollary of checks and balances, pertains not just to the relationship between the three branches of the federal government, but also to the relationship between the federal government and the states.  This federal system affords another independent check on executive authority. When the executive branch does not follow the laws faithfully and Congress does nothing, the State AGs can act as the main check on this conduct.

A Case in Point

The case of civil forfeiture (taking private property even if only tangentially involved in criminal activity and without due process) demonstrates the importance of electing State AGs who can stand up to Washington and defend our rights. Under President Obama, the Justice Department cut back on this practice, concluding that it was wrong to seize property without any accompanying criminal investigation or warrant in place.

Just recently, Attorney General Jeff Sessions reinstituted the practice and rejected the concerns that it violates the “due process” rights of affected persons. As one conservative commentator put the issue, “By expanding government power to take property without appropriate due process, even when state laws don’t allow it, Sessions is signaling he answers to no one.” Here in Colorado, the legislature just passed protections on the use of this power, and we don’t want the federal government to override that policy. To protect Colorado’s sovereign authority, we need a State AG who will to stand up to Washington to protect our rights.

A Government of Laws, Not People

Our government is a government of laws, not of people who can simply do what they want. Former Deputy Attorney General Sally Yates has flagged the threat to our democracy and has explained that the fundamental independence of the Justice Department is now at issue. Similarly, the Washington Post has emphasized that “The United States has been a role model for the world, and a source of pride for Americans, because it has strived to implement the law fairly.” State AGs uphold that foundational principle of our constitutional system as well when they challenge illegal executive behavior.

We must work hard to continue this tradition. I know that Phil Weiser, as Colorado’s next Attorney General, will ensure that Colorado enforces the laws fairly and with equal justice for all.

In 1974, our nation faced a basic challenge to the rule of law: would the other branches of government stand up to an executive branch engaged in lawless conduct? After he was fired as special prosecutor, Archibald Cox stated that “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people” to decide.

In 1974, Congress, and then the American people, spoke loudly and clearly on the need to embrace our constitutional traditions and support the “rule of law.” The result, as my predecessor in Congress Tim Wirth noted in endorsing Phil Weiser to be our next AG, was a period of political reform and renewal.

In 2018, we will face a similar test and opportunity. By electing leaders like Phil Weiser, Colorado and the nation can continue to fulfill our constitutional traditions and ideals. I encourage you to join me in supporting him.


Phil, Daughter, RBG

The Important Role of Our AG in Fighting for Equal Rights for Women

Our nation’s vision of equal opportunities for all is a core part of my life’s work. To translate that vision into reality, our country needs dedicated leadership committed to equality for all Americans. For me, a role model for such leadership is Justice Ruth Bader Ginsburg, whose work as a lawyer and as a Supreme Court Justice make her a leader in the battle against discrimination and for equality. Working with her when she wrote the opinion requiring the Virginia Military Institute to admit women remains a highlight of my life.

As Colorado’s next Attorney General, I will prioritize the battle for women’s rights and equality for all through the following measures:

  • The Colorado Attorney General’s office will work hard to ensure that women are treated equally in the workplace,
  • The AG’s office will be a leader in supporting women in the workplace.
  • The AG’s office will work with the legal and business community to drive best practices around diversity and inclusion.

To work with me on this core goal, I will create a new executive leadership position on Community Engagement, Workplace Culture, and Diversity: the AG Office Leader on Culture. This position, which will report directly to me, will oversee efforts to ensure diversity and inclusiveness in the office and lead our community in driving behavior toward best practices by using the power of the AG’s office to convene leaders in our legal and business communities. In short, the Attorney General’s office will not only effectively enforce the laws protecting women in the workplace; it will also lead by example and through the use of its moral authority. While the measures discussed in this post focus on the imperative of protecting women in the workplace, many of them also will address diversity and inclusiveness concerns related to race and ethnicity as well. A subsequent post will focus more directly on these issues.

Fighting for Equal Treatment in the Workplace

Lilly Ledbetter, who was a manager at Goodyear Tire & Rubber Company, discovered years into her job that she was paid considerably less than men in the same position. She brought a lawsuit to challenge this discrimination. The Supreme Court ultimately ruled against her claim, saying that she failed to bring the action—which she had no way to know about—until after the 180-day filing requirement. In a passionate dissent, Justice Ginsburg sharply criticized the majority’s ruling and urged Congress to fix the problem.

The Lilly Ledbetter story underscores the continuing challenge of equality for women. When women enter a profession historically dominated by men, equal treatment doesn’t immediately follow. Here’s how Ginsburg later described Lilly Ledbetter’s situation: “It’s the story of almost every working woman of her generation, which is close to mine. She is in a job that has been done by men until she comes along. She gets the job, and she’s encountering all kinds of flak. But she doesn’t want to rock the boat.”

Although Lilly Ledbetter’s case didn’t end well for her, Justice Ginsburg’s dissent was heard by Congress and President Obama. The first law President Obama signed was the Lilly Ledbetter Fair Pay Act of 2009. Unfortunately, even the guarantee of equal pay for women cannot be realized unless—like in Ledbetter’s case—women have access to the necessary data regarding salaries in their workplaces.

Equal pay for equal work is still not yet the norm in our country. According to one recent study, for example, the median annual pay for women working full-time year-round is $40,742, compared to $51,212 for men working full-time year-round. As Justice Ginsburg explained in her dissent in the Ledbetter case, if women cannot learn that their male colleagues with similar experience are getting paid more for the same work, they cannot claim their right to equal pay. Fortunately, in 2008, Colorado became the fourth state in the country (it’s now one of 13 states) to enact a law protecting workers who share pay information from discrimination and retaliation. But many employers and employees still don’t know about these protections. As Attorney General, I will vigorously enforce this law and the rights of workers to learn about potential pay disparities.

Gender Equity and Inclusiveness in the Legal Profession

When I interviewed Justice Ginsburg at the University of Colorado Law School, I asked her about the number of women on the Supreme Court. In answering my question, she remarked that the right number of women on the Supreme Court is nine. For a long time, she explained, all nine seats were occupied by men, so why not have nine female Justices? Thanks to President Obama, there are now three women on the Supreme Court. But there still is a ways to go before we achieve RBG’s vision for the Court.

When I graduated law school in 1994, there were an equal number of women in my class as men. My assumption was that, with the benefit of equal numbers of men and women graduating law school, we would soon overcome the historically underrepresented role of women in leadership positions, including on the Supreme Court. Unfortunately, 23 years later, women are still significantly underrepresented in the leadership ranks of nearly every sector of the legal profession: law firm partnerships, general counsel, judgeships, law school deans, etc.

During my time at the University of Colorado Law School, I prioritized diversity and inclusion, working with leaders in our community on a number of initiatives. I partnered with, for example, the Colorado Women’s Bar Association on programs that supported women in the profession and my efforts to support and mentor our Latino students earned recognition from the Colorado Hispanic Bar Association. As Attorney General, I will follow in the tradition of past Democratic Attorneys General, JD MacFarlane and Ken Salazar, by making diversity and inclusion a hallmark of my tenure.

The Attorney General’s office should and can be a proactive leader in supporting women in the workplace. Moreover, our Attorney General should be a leader in our community, encouraging law firms, in-house law departments, and companies to drive toward best practices. My newly created executive-level appointee, the AG’s Office Leader on Culture, will work with me to serve as a leader on community engagement, workplace culture, and diversity.

The AG’s Office Leader on Culture

The AG’s Office Leader on Culture will spearhead a range of activities in the office and in the community to promote diversity and inclusion:

  • First, the AG’s Office Leader on Culture will conduct bias training, identify situations where individuals are not able to participate effectively, and host bias workshops to encourage equal and fair treatment. For any workplace and particularly the AG’s office, it is important to support everyone and enable them to contribute effectively and to advance without barriers (including implicit biases).
  • Second, we need to create flexible and alternative structures that allow individuals to work effectively while taking care of children or elderly parents. At the University of Colorado Law School, I allowed for flexibility in the workplace so that professionals could thrive at home and at work; I will do the same at the AG’s office, working with the AG’s Office Leader on Culture to ensure that we have appropriate policies for all professionals to perform their work effectively.
  • During my time as Dean, I appreciated the need to mentor all of our faculty, staff, and students because I recognized that many individuals do not get the coaching, mentorship, sponsorship, and access to information they need when they are not a part of traditional networks. To ensure that the Attorney General’s office evaluates and supports individuals based on talent, the AG’s Office Leader on Culture will create and implement coaching, mentorship, and leadership development programs and ensure that they are afforded to everyone in the office.
  • Finally, I will work with the AG’s Office Leader on Culture to make clear that sexual and gender harassment will not be tolerated. Whether the harassment is a “come on” or a “put down,” it is unacceptable. Such insults have the effect of undermining women. If allowed to fester, gender-based comments can lead to lower productivity, higher job stress, lower psychological well-being, and increased turnover. To eradicate sexual and gender harassment, we will regularly survey and interview individuals working at the Attorney General’s office to assess their experiences and root out mistreatment of women.

Fighting for Equality Is a Team Effort

As Colorado’s next Attorney General, I will work with our community to make Colorado a model of fighting for diversity and inclusion. This means that we must address pay inequities and work to provide women with equal opportunities to advance and succeed. For the Attorney General’s office, and the legal and business communities, a more respectful and inclusive work environment is long overdue and will lead to a more productive and effective workplace. But it will not happen without dedicated leadership and a vigilant focus on achieving this important goal.

Under my leadership and the AG’s Office Leader on Culture, the Attorney General’s Office will not only enforce the laws requiring equal treatment of women in the workplace, we will lead the community by example. Moreover, the Attorney General has tremendous power to convene and to lead through the moral authority of the office. This means that successful programs developed at the Attorney General’s office—or elsewhere in our State—need to be celebrated and disseminated to other workplaces. As our next Attorney General, I will engage with employers across our state to develop and spread best practices in the treatment of employees and I will champion diversity and inclusion efforts.