Professor of Practice and Distinguished Scholar in Residence Bob Bauer, a former White House counsel, played a pivotal role in the Biden campaign’s legal operation. He spoke to NYU Law Magazine about the 2020 campaign, potential Supreme Court reforms, and his experience of teaching.
You were co-head of the Biden campaign’s legal arm. Which of the many challenges that the Biden team faced occupied most of your time?
At the very beginning, after it became clear that the pandemic would put exceptional stresses on the electoral infrastructure, we invested a huge amount of effort in assisting election administration jurisdictions to simply meet the moment. Later on, we spent significant time planning for all sorts of other contingencies, despite knowing that many of them would likely not materialize.
One of our primary purposes was to address the risks to a fair and free election that came from President Trump and his wing of the Republican Party. This involved not just the election but also its aftermath, which included the former president’s refusal to concede and the various actions the Trump administration took to obstruct the peaceful transfer of power.
Of all the possibilities that we’d anticipated, we didn’t imagine that the president would be involved in inciting an attack on the Capitol. I certainly did not believe at the time that it was going to change the outcome of the election, but I think we have seen since January 6 that we have a crisis on our hands. A large portion of the Republican Party has responded to Trump’s insistence that the election was stolen from him, and to his demand for various Republican-controlled state legislatures to erect new obstacles to voting and to conduct partisan audits meant to cast baseless doubt on the 2020 election results. I am more concerned today about the direction that all of this is headed than I was ever in doubt about the outcome of the election.
You co-chair the Presidential Commission on the Supreme Court of the United States, created by executive order to analyze arguments for and against US Supreme Court reform. What do you hope will emerge from the commission’s work?
The commission is holding six public meetings and will produce a final report over the course of six months. We are seeking oral and written testimony about the prominent proposals in this space that are informed by diverse perspectives, in addition to doing our own review of the legal and political science literature, and other sources.
These proposals include court expansion, sometimes called court packing, as well as term limits, increased transparency, a binding code of ethics for the justices, and greater scrutiny of the so-called shadow docket—the issuance of emergency orders and summary decisions without full briefing and argument. Some people have imagined we’re going to be focused simply on court packing, but it’s actually very wide-ranging.
The report is meant to inform the president’s and the public’s consideration of these issues. We will not offer consensus recommendations, but rather identify clearly how this debate arose, what’s at stake, and how to evaluate the arguments for and against different proposals.
You joined the NYU Law faculty in 2011 and have co-taught the Legislative and Regulatory Process Clinic in Washington, DC, with Professor Sally Katzen, since 2013. What has stood out to you about the students in the clinic and the experience of teaching the clinic?
We really enjoy teaching the clinic. The experience students gain from working five days a week in a federal agency, congressional office, or nongovernmental organization, coupled with learning in the seminar component of the clinic how to think broadly about issues of government lawyering, is extremely valuable for them. The students have made a mark for NYU Law in Washington, DC, and when they perform well, then there’s an appetite for the next round of students. We see them as ambassadors for the school. Students often come to the Law School because of its public interest emphasis, and they’re enthusiastic about becoming involved in public affairs. We’re looking for students who will make the most of the experience; NYU Law has an abundance of such students. Atticus Gannaway
This interview has been condensed and edited.
Posted September 9, 2021.