After serving as dean of two law schools, president of a university and special master in a U.S. Supreme Court case, Paul Verkuil was handed a more daunting task in 2010: reviving a federal agency that had been zero-funded for 15 years.
“Standing up an agency is quite a challenge. I had to buy furniture. And there was no office space. I did it in six months,” said Verkuil, former dean of Tulane University Law School and the Benjamin N. Cardozo School of Law, and former president of the College of William and Mary. He served as special master for the high court from 1994 to 1997 in the dispute between New York and New Jersey over Ellis Island.
The agency that Verkuil brought back to life—and is now leaving—is the Administrative Conference of the United States, first launched in 1964 as a nonpartisan government and legal think tank of sorts, aimed at making the administrative state function better. It soon became a prized haven for administrative law experts, a bookish group that included Antonin Scalia—he was chairman of the conference from 1972 to 1974—and Stephen Breyer, who was a liaison from the judicial branch.
Five years after the relaunch, Verkuil is wrapping up his tenure, but not leaving until his replacement is in place. “This is like my family,” Verkuil told The National Law Journal. “I hired everybody. I believe in it, and I want to make sure it’s in good hands before I leave.”
‘Fell Between the Cracks’
The conference was a casualty of the budget-cutting of the mid-1990s. “It just fell between the cracks, and people weren’t watching out for it,” Verkuil said. “Almost immediately after it happened, everyone said, ‘Oh, my God. Why? Why?’”
Its fans kept after Congress to reauthorize it, and the conference was finally revived during the George W. Bush administration. It was not fully functioning until Barack Obama became president. He appointed Verkuil to a five-year term and named other officials of the organization, calling the conference “a public-private partnership designed to make government work better.”
With a $3.2 million budget, Verkuil reassembled the organization, which now has 17 employees, along with a 10-member council that is part of a 101-member assembly with representatives from all three branches of government and the private sector.
Former staffers who had kept conference files in their basements awaiting a revival brought in their boxes. Breyer and Scalia returned as senior fellows, joined by a newcomer who is also an administrative law aficionado: Justice Elena Kagan.
The conference has made more than 30 recommendations to agencies since 2010, which Georgetown University Law Center professor David Vladeck called “an astonishing pace.”
The conference has explored new areas such as the use of social media in rulemaking proceedings, and in June recommended that federal agencies adopt a “uniform agenda” system that would increase transparency by informing the public of upcoming rules.
Probably the conference’s biggest reform recommendation was adopted by the Social Security Administration in March. It seeks to reduce inconsistent decision-making by overwhelmed administrative law judges in Social Security disability appeals, and deals with issues of evidence and attorney-client privilege among others. In a floor speech last year praising the Administrative Conference on its 50th anniversary, Rep. John Conyers, D-Michigan, said the Social Security recommendations would save $85 million.
‘Here to Stay’
Verkuil is confident that the conference will not be zeroed out again. “We’re here to stay,” he said in a valedictory address to the conference in June.
Former federal circuit court judge Patricia Wald, who served on the conference council from 2010 to 2012, said Verkuil succeeded in winning “strong support on both sides of the aisle” for keeping the conference going. He is “the conciliator supreme,” Wald said in a videotaped tribute to Verkuil.
And Verkuil is not fazed by the libertarian and deregulatory mood, found in parts of Capitol Hill, that sees the so-called “administrative state” as something to be dismantled, not improved.
“We’re trying to make things work. We believe in the proposition that government can work,” Verkuil said in the NLJ interview. “We don’t subscribe to the notion that no government is better.”
By its nature, the conference can get deep in the weeds of federal regulation, where a misplaced semicolon can cost millions or bog down the bureaucracy.
“We take a statute and then try to implement it in an effective way,” he said, adding that he dislikes the “think tank” label sometimes used to describe the conference. “I’d like to say that we think, but we also act, so that we don’t get thought of as a bunch of pointy-headed academics sitting around here.”
Verkuil was no stranger to administrative law. He had been a consultant to the conference in its earlier incarnation and became known as a leading expert in the field long before he became chairman.
“Not everyone has the same passion about administrative law, and in fact if you say that phrase to a lot of people, their eyes will glaze over,” said former solicitor general Theodore Olson. “Paul has a passion for it. He was the perfect person to bring this agency back to life.” Obama named Olson, now partner at Gibson, Dunn & Crutcher, to the conference’s council.
What is next for the 75-year-old Verkuil? “I’m not doing anything right away,” he said. “I’m going to try and spend some time just thinking about what I learned, and maybe writing it up.”