From private legal practice to the U.S. Department of Justice to his current role as executive vice president for government affairs and general counsel of PepsiCo Inc., the force driving Tony West has been a desire to serve the public good.
It is a force with roots deep in the church, since West comes from a long line of Baptist and Methodist ministers, including in the South. His parents left Alabama for California to seek greater opportunities for themselves and their children.
The National Law Journal recently talked with West about his varied roles in law, including assistant U.S. attorney general for the Civil Division and associate U.S. attorney general, the No. 3 official at DOJ. This interview has been edited for clarity and length.
The National Law Journal: Why did you decide to become a lawyer?
Tony West: I wanted to pursue a career in public service and politics, but I also was not completely naïve. I knew that just because one wants to pursue a career in elected office doesn’t mean one will get elected. I needed to come up with a skill that would allow me to make a living.
Law school was really sort of my fallback plan. What I discovered in my first jobs in law is that I could marry my love of public service with a successful legal career. Those two were complementary, and the legal core could actually help me become a more effective public servant.
NLJ: What was your first job?
West: I spent a short period of time in a law firm right after law school, then I went into the [President Bill] Clinton administration and [late Attorney General] Janet Reno’s Justice Department. Then I came back home to California to be an assistant U.S. attorney. For five years I prosecuted all sorts of crimes. I had a number of jury trials. I loved that job, and just loved public service. I can honestly say I have never felt more proud or more humble than to stand up in a courtroom and to say my name on behalf of the United States.
After that, for two years I worked for the state attorney general’s office in California [as special assistant attorney general]. And from there I went to Morrison & Foerster as a litigation partner for eight years.
NLJ: Did you like civil litigation? And how did it serve you in your career?
West: I like civil litigation. But I missed the trial work. For someone who likes to be a trial lawyer, there is nothing more exhilarating than standing in front of a jury. There were a number of hearings and motions that were argued, and a lot of high-profile cases, but I remember only one trial. The reality is in civil litigation 98 percent of those cases end up in negotiated settlement.
More importantly, I learned the technical aspects of civil litigation, which is different than criminal trial work. I went from there to become head of essentially the largest civil litigation firm in the world — DOJ’s Civil Division. I don’t think I could have been as successful at that job had I not had the experience at Morrison & Foerster.
NLJ: What were your best and worst memories from your work at DOJ?
West: One of my best memories was the process we engaged in to recommend to the attorney general and the president that the Department of Justice should cease defending the Defense of Marriage Act [which allowed states and the federal government to refuse to recognize same-sex marriages]. Early in my second year heading the Civil Division, a case was filed in the Second Circuit where there was no binding precedent on the constitutionality of DOMA. And I used that as an opportunity to say to my team of career attorneys as well as to the attorney general, “This is a law which for a variety of reasons we think has constitutional problems.”
So if you are in a circuit where this is a question of first impression, the Civil Division and the Justice Department can actually do the analysis as to whether or not we think DOMA still is constitutional.
We engaged in the process, and, you know, it was a very contentious process. I won’t sugarcoat that. But as the main division charged with defending the statute, we ultimately came out recommending very strongly that DOMA was not constitutional and we should not argue in its defense in the Second Circuit case. [The U.S. Supreme Court struck down the law in 2013.]
NLJ: And one of the worst?
West: One of my worst memories was the morning I learned about Newtown [the December 2012 shooting at Sandy Hook Elementary School in Newtown, Connecticut]. I was the acting associate attorney general at the time. I distinctly remember the television being on in my office watching with my staff, and the FBI and Justice Department were on the ground and reporting back. The whole thing was horrific.
It was so sad in that moment, as tragic and arresting as it was, that we were unable to [make it] a moment of transformation for this country, when it comes to just commonsense gun legislation. I’m talking about things that a vast majority of gun owners favor, such as background checks to see if [gun buyers] are mentally sound.
NLJ: You have a longtime interest in politics and worked in several campaigns, including for Michael Dukakis, Bill Clinton and Barack Obama. Do you have any interest in running for political office yourself?
West: At a very young age, I would read something like the Declaration of Independence and think that it was speaking to me and speaking to my aspirations of what this country held for me. I wanted to be part of the story of helping the country to become more perfect. And I thought running for elected office would be the way to do that. I did try twice and failed. But what I discovered, particularly through my service in the Obama administration, is that whether you are elected or not, public service is the thing that’s driving you most.
I actually believe I got more accomplished and was able to be part of helping the country to be more perfect, in that [public service] regard than I ever could have as an elected official. I don’t think I could have done DOMA as an elected official. I don’t think I would have had the opportunity to deal with states like Arizona and Georgia and South Carolina over their immigration laws as I was able to do at the Justice Department.
I don’t think I would have been able to do the big financial settlements that helped keep hundreds of thousands of Americans in their homes after the financial crisis. So I’m not really looking to run for office again.
NLJ: We’ve heard about your diversity efforts at PepsiCo. What have you accomplished and how did you do it
West: This is one area where I think we can make a big difference from a business standpoint — diversifying the legal profession. And as a general counsel I actually can have an impact on that. We’ve actually lifted up diversity as one of the criteria we use when we select outside counsel. And we have established an outside counsel diversity policy available on our website. My predecessor, Larry Thompson, who had been deputy attorney general under George W. Bush, started recognizing the top eight or nine firms [that had the best diversity metrics] every year with a lunch. We took that model and added some more tools. We rank and score firms and come up with a median score. Firms that score above that median are invited to lunch each year and to share best practices about what’s working to help improve diversity. The commitment I make is that I will spend the lion’s share of our legal spend with those firms. We put our money where our mouth is.