Breaking NewsLaw.com and associated brands will be offline for scheduled maintenance Friday Feb. 26 9 PM US EST to Saturday Feb. 27 6 AM EST. We apologize for the inconvenience.

 
X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
In the spring of 1987, President Ronald Reagan was facing a storm of criticism for his belated response to the AIDS epidemic. In response, the White House had decided to form a presidential commission on AIDS, and a draft of an executive order establishing the group was circulating among the president’s staff. Peter Keisler, then a 26-year-old lawyer in the White House, took issue with one particular part of the draft calling for members of the AIDS commission to be “distinguished individuals who have extensive experience in the fields of medicine, epidemiology, virology, law and medicine, public health, and related disciplines.” “Membership on the Commission is likely to be a hot political issue,” Keisler wrote to his boss, White House counsel Arthur Culvahouse Jr. “The Administration may wish to allow itself maximum flexibility in the selection of the members.” A change in the executive order was made. And when the membership in Reagan’s 12-member commission was announced, its ranks included not only physicians and academics but also Cardinal John O’Connor, head of the Roman Catholic archdiocese of New York and an outspoken opponent both of anti-discrimination laws designed to protect gays and of the use of condoms. It also included a sex therapist who said she believed AIDS could be transmitted via toilet seats and mosquitoes, as well as Richard DeVos — founder of Amway Corp. As a nominee for a seat on the U.S. Court of Appeals for the D.C. Circuit, Keisler is under scrutiny for his history in the Reagan White House — as well as his tenure in his current position as head of the Justice Department’s Civil Division. Democrats on the Senate Judiciary Committee have voiced opposition to the haste with which Keisler’s nomination was brought to a hearing. Nominated on June 29, Keisler received a hearing in just 32 days. “It appears we are trying to break the land-speed record for confirming a nominee to the second-highest court in the land,” said Sen. Charles Schumer (D-N.Y.) at Keisler’s confirmation hearing earlier this month. One issue Democrats have raised is access to Keisler’s files from the Reagan White House, held at the Ronald Reagan Presidential Library in California. Hundreds of Keisler’s documents, including the memo on the AIDS commission, have been released by the library through the Freedom of Information Act. But an additional 40 linear feet of boxes of documents, including Keisler’s files on controversial issues such as the Iran-Contra investigation and affirmative action, remain sealed. “Our position is, the records that would cast light on his views have not been made publicly available,” says Judith Schaeffer, the deputy legal director of liberal interest group People for the American Way. With or without the documents, Keisler’s qualifications and legal record may not prove the determining factor in his confirmation process. That’s because Keisler’s nomination could be blocked by Senate Democrats in a long-running partisan dispute over whether an 11th judge on the court is even necessary. During the Clinton administration, Senate Republicans were outspoken in their opposition to Democratic attempts to add an 11th judge to the D.C. Circuit, a court seen as a stepping stone to the Supreme Court. Today it is Democrats who question whether the court’s docket, which has shrunk since the late 1990s, merits the appointment of an additional judge. Keisler will have to hope he can avoid the fate of Elena Kagan, now dean of Harvard Law School, who was nominated to the 11th seat on the D.C. Circuit by President Bill Clinton in June 1999. Kagan never received a confirmation hearing. Evidence from public documents, as well as his colleagues and courtroom adversaries, suggest that Keisler, 45, was a well-connected Republican foot soldier during the 1980s and an acolyte of ultraconservative ex-D.C. Circuit Judge Robert Bork. But Keisler’s partisan edges appear to have softened during his highly successful tenure in private practice from 1989 to 2002. Since then, Keisler has served as a senior official in the Justice Department, first as a deputy to then-Associate Attorney General Jay Stephens, and later as head of the department’s civil litigation division. At the Civil Division, Keisler has robustly defended the Bush administration’s controversial surveillance and detention policies. His division has filed suit to stop state governments from probing the National Security Agency’s surveillance program, and Keisler personally argued the landmark detainee case of Hamdan v. Rumsfeld before the D.C. Circuit. But although Keisler has defended those policies in court, to date there is no evidence that he played a policy role in developing the initiatives. “Peter is not in the mold of the quote-unquote political nominee,” says Bradford Berenson, a former Bush White House lawyer who is now a partner at Sidley Austin. “He’s a quintessential qualifications nominee.” A FEDERALIST FOUNDER But during the early part of his career, Keisler was anything but apolitical. A native of Long Island, N.Y., Keisler went to Yale in 1977 and became active in its political union. “Peter started out on the more liberal side of the spectrum and drifted right,” says Akil Amar, a Yale law professor who is friends with Keisler from their undergraduate days. Keisler declined to comment for this article. By 1982, Keisler had moved on to Yale Law School, had joined the Committee for Responsible Youth Politics, and was working as an editor at the university’s conservative student paper The Yale Free Press, under its publisher Charles Bork — the son of Judge Bork. While in law school, Keisler roomed with Steven Calabresi, who, along with Keisler and a group of other conservative law students, founded the Federalist Society — a conservative legal group that has grown into a national force in Republican legal circles. During that time, Keisler also began penning essays for the conservative journal Human Events, including an article critical of late Yale President A. Bartlett Giamatti, who had warned Yale students that the Moral Majority was doing “spiritual violence” to American politics. Keisler’s activities drew the attention of national Republicans, and in late 1984, the White House granted Keisler, then still a law student, a recess appointment to the National Advisory Council on Women’s Educational Programs. His stint there was short-lived. By mid-1985 he had resigned from the council to accept a clerkship with Bork, then considered perhaps the country’s most brilliant conservative jurist. Bork, Keisler told the Judiciary Committee at his confirmation hearing on Aug. 1, taught him to “keep an open mind throughout the [legal] process.” “He’s one of my favorites,” Bork says of Keisler. “He tried to be faithful to the words and meaning of the Constitution. I don’t think he’s given to social engineering.” The clerkship with Bork ended in 1986, and Keisler moved on to work in the Reagan White House Counsel’s Office. But his association with the judge didn’t end. Soon enough, Keisler would be working closely with Bork on his nomination to the Supreme Court, defending him against hostile Senate Democrats. Among Bork’s most ardent foes were Sens. Joseph Biden (Del.), Edward Kennedy (Mass.), and Patrick Leahy (Vt.) — all of whom still sit on the Judiciary Committee now considering Keisler’s own nomination. A REAGAN REPUBLICAN The White House was a heady place for a 26-year-old law school grad. Documents reviewed at the Reagan Library by Legal Times show that although some of Keisler’s responsibilities were mundane ones, such as lawyering the transfer of 10 acres of property from the state of Iowa for a National Guard armory, others were of greater import. After Soviet leader Mikhail Gorbachev asked Reagan at Reykjavik in 1986 if the Soviets could obtain a U.S. broadcasting license, Keisler was tasked with providing a legal opinion on the request (Keisler’s recommendation: no). Keisler also served as a White House liaison with the office of independent counsel Jim McKay, who was then probing a government-contracting scandal that would tarnish the reputation of then-Attorney General Edwin Meese III. But Bork’s nomination to the Supreme Court in the summer of 1987 gave Keisler one of his most public tasks in the White House Counsel’s Office. As a former clerk, he often appeared by Bork’s side and, according to Ethan Bronner‘s Battle for Justice, he attempted to soften Bork’s image by rewriting his opening statement (Bork rejected the rewrite). He also served as a media surrogate. After a study by Columbia University found Bork to be among the most conservative judges in America, Keisler told National Journal the report was “a bunch of hot air. . . . I think Bork is in the mainstream. He’s been in the majority in 94 percent of the cases he’s heard.” At his own hearing earlier this month, Keisler was asked by Kennedy if he still considered Bork’s views to be mainstream. “I do, Senator,” Keisler replied, though he pointed out that he and Bork don’t agree on every issue. Under questioning from Democrats, Keisler, unlike Bork, acknowledged that the Constitution offered a right to privacy, a crucial underpinning of Roe v. Wade. Keisler’s work also included legal work for the White House in the Iran-Contra scandal. The titles of his still-sealed White House files indicate he was part of a team of lawyers that gathered legal analysis regarding the sale of arms to Iran and the use of the proceeds to fund right-wing Nicaraguan guerrillas. When asked about his knowledge of the scandal, Keisler told the Judiciary Committee he only became aware of the secret arms deals after they were publicly disclosed in the fall of 1986. After that, he said, his role was limited to that of a lawyer representing his client. A PRAGMATIC PARTNER Keisler would later help shepherd the Supreme Court nominations of Douglas Ginsburg (which was withdrawn) and then Anthony Kennedy. Keisler left the White House soon after Kennedy was confirmed, and along with Gibson, Dunn & Crutcher partner Miguel Estrada, he became one of Kennedy’s first clerks. But less than a year later, in 1989, Keisler moved to private practice, joining the D.C. office of Sidley Austin. After working for the president and shaping Supreme Court decisions, Keisler’s early years at Sidley were a reduction in stature. Like many associates at large law firms, Keisler didn’t appear in court a single time in his first three years. But he became a partner in 1993 and quickly advanced at the firm. Keisler’s legal talents soon made him one of the lead partners representing AT&T, one of the firm’s marquee clients. In 2002 he won a major victory for the cable-television industry before the Supreme Court, when the Court decided the federal government could regulate the fees local phone companies charge cable providers for using utility poles. Keisler found more than just corporate legal work in private practice. He also found Susan Gomory, a former associate at the firm who would become his wife (the couple has three children). Their budding romance was shielded from many at Sidley at first, but became public during one of Sidley’s semiannual partner meetings at which associates’ performance is discussed. “The first inkling I had was when we got to [Susan's] name,” says George Jones, a partner at the firm. “He very quietly got up and left the room.” During his time in private practice, Keisler also served as hiring partner in the firm’s D.C. office, where he was credited with bringing more diversity to the firm and pushing for benefits for gay and lesbian employees. “I think being in private practice for as long as Peter was makes you less ideological and more pragmatic,” says Carter Phillips, who manages Sidley’s Washington office. “There’s a maturing that comes with it.” Private practice also brought a hefty salary. In a recent financial-disclosure statement, Keisler listed assets of more than $3.5 million. His judicial questionnaire also lists his pro bono activities while at Sidley, which include just 320 hours of work in 13 years. A DOJ spokeswoman says that Keisler made himself available to other Sidley lawyers on pro bono matters not listed on his questionnaire, and that he contributed $2,000 to legal aid groups in the past five and a half years. TERROR AND TOBACCO In 2002, Keisler left Sidley to become the chief deputy to Associate Attorney General Jay Stephens. A year later he moved over to head the Civil Division and was soon involved in some of the government’s most controversial legal matters. In 2005, Keisler signed off on the Justice Department’s decision to reduce from $130 billion to $10 billion the amount it sought to collect from tobacco companies in its civil racketeering case against the industry. The move drew criticism from the career government attorneys handling the case. One of them, Sharon Eubanks, would later resign from the Justice Department, and she specifically criticized Keisler and two other political appointees when she left. An internal investigation by the Justice Department’s Office of Professional Responsibility later found no improper political influence in the decision. Last week, U.S. District Judge Gladys Kessler issued a ruling that severely limited how tobacco companies could market cigarettes, but she said that a higher court restricted her from imposing billions of dollars in penalties. Keisler has also won plaudits from an unlikely source: Neal Katyal, the lawyer for Salim Hamdan, whose landmark Supreme Court victory overthrew the Bush administration’s system of trying detainees at Guant�namo Bay, Cuba. Keisler had argued the Hamdan case against Katyal before the D.C. Circuit in the spring of 2005 (the court unanimously sided with the government). Just five days before oral arguments in the case, Katyal received word that his father was diagnosed with brain cancer. Despondent, he phoned the Justice Department in hopes it would agree to a delay. “Within a minute I got a call from Peter saying he would do whatever he could,” Katyal says. “And he got that extension. I was a nobody, and he didn’t have to do that.” In 2004, Keisler personally argued an appeal of an unusual case that allied the Bush administration with abortion-rights supporters against Frank Bird Jr., who had been indicted under the Freedom of Access to Clinic Entrances Act for driving a van into the door of a Houston Planned Parenthood clinic. The district court had dismissed the indictment on the grounds that the clinic-protection law was unconstitutional. Keisler appealed the case to the 5th Circuit — and prevailed. “He had a way of undermining every good argument I had,” says Brent Newton, an assistant federal public defender who represented the defendant. “If one picks judges based on ideology, which obviously both parties do, [then] pick a smart one, and he’s obviously a very smart one.”
Jason McLure can be contacted at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.