Extreme partisanship seems to come in waves—the current one all but crushing compromise in the nation’s capitol. While political rancor may be hitting new heights, amplified by the advent of partisan talk shows, it has been building, according to former U.S. Senator Russell D. Feingold, a lecturer at Stanford Law School this year.
“I feel the quality of debate in the Senate has declined substantially during the last 20 years,” says Feingold, who represented the state of Wisconsin during the government shutdowns of 1995 and 1996 and President Clinton’s impeachment trial in 1998. “I saw a change in the matters that were debated. And today there seems to be even more partisanship, more filibusters.”
Since leaving the Senate in 2011, Feingold has had time to reflect on his 18 years working at the heart of national politics. And he is eager to share his experience with the next generation of our nation’s lawyers, so he designed a course to do just that. Offered in the winter quarter, The United States Senate as a Legal Institution introduces students to major and emerging legal and constitutional issues related to the U.S. Senate, with an examination of both the Senate’s nature as a complex legal institution as well as the Senate’s legitimacy in the context of the current—and largely unprecedented—criticism of it from across the political spectrum.
“We’re very focused on the judiciary in legal studies,” says Maggie Brennan, JD ’13. “But many students will go into politics and policy, so examining the Senate is not only interesting but very useful.”
Feingold can’t be sure of the exact number of students attending his class each week. While there are 41 students officially enrolled in the course, the class meets in one of the larger lecture halls to accommodate some 15 or 20 non-matriculated students who show up to listen or join in on the discussion, which is usually lively.
At the start of the course, Feingold gets the conversation going by asking students about their perceptions of the upper chamber: What do they think it was intended to be? He explains that by starting there, students can appreciate the changes. “We seem to have forgotten that there are three branches of government, and each branch has an obligation to uphold the U.S. Constitution,” he says.
Feingold, who recently wrote The New York Times best seller While America Sleeps: A Wake-up Call for the Post-9/11 Era, places special emphasis in the course on issues that have become prominent since that terrorist attack, including the relationship between legislation and the presidential assertion of Article II powers, as well as the Senate’s use (or non-use) of its Article I power to declare war. Also taking center stage is the U.S. Constitution itself and, specifically, the responsibility of senators to uphold it. How does the Constitution constrain the Senate and how does the Senate interact with the Supreme Court? How should senators regard the constitutionality of a bill when they vote on it and how should they approach proposed constitutional amendments?
“The constitutional questions are particularly interesting. I’ve taken Con Law, but these are new issues, looked at from the perspective of the Senate,” says Brennan, who plans to join a litigation practice after graduation.
For James Aiken Klonoski, JD ’13, a self-described political junkie, signing up for the class was a no brainer.
“The first draw is the man himself; he’s one of the greats,” says Klonoski, a co-founder of Stanford Law Veterans Organization and a co-president of the campus chapter of the American Constitution Society. He also finds the focus on the constitutional responsibility of senators particularly interesting.
“Turns out politics has a lot to do with the law,” says Klonoski, who plans to clerk for Judge Harry Pregerson of the Ninth Circuit Court of Appeals after graduation—though first he will complete one last tour of duty in Afghanistan.
Klonoski sees parallels with the military and the law, a view that has crystallized during his legal studies. For him and the eight other veterans in Feingold’s course, this is serious stuff, quite literally questions of life and death, of country and honor. “We place trust in lawyers and in our politicians, just as we do in our servicemen and servicewomen,” says Klonoski. “And the oath I took when I signed up for the Navy is the same one that senators take when they join the Senate, including the words to defend the Constitution of the United States against all enemies, foreign and domestic.”
Klonoski recalls a class when Feingold described the vote he is perhaps best known for—his lone nay against the USA PATRIOT Act in 2001, which gave federal authorities new sweeping powers following 9/11.
“He told the story about being the only senator opposing the act. What do you do when all of your colleagues are voting for something, in a time of national security, and you know it’s wrong? How do you stand by your convictions? It was such an emotional time, so charged after 9/11. But he stood his ground,” says Klonoski. “He told us about giving a press conference in Wisconsin soon after the vote. A reporter told him he was incredibly brave but then thanked God there weren’t 51 other senators like him.”
It’s said that Senator John McCain jokes that people in Wisconsin think that Feingold’s first name is McCain. It’s a reference to the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold bill, an effort that took the two senators some eight years to achieve. It’s also tribute to a Senate seemingly of bygone days when members like Feingold worked hard to find compromise. “I was involved in many bipartisan efforts in the Senate,” he says. “And I attribute that to my upbringing in Wisconsin.”
Feingold grew up in a small Wisconsin town, where his father was a general practice lawyer and very active in the local Democratic Party. While the Feingold family’s politics may have put them in the minority in the rural town, it didn’t dampen spirits. “My dad just loved politics—loved talking to people about issues, finding agreement, getting along whether they agreed or not,” he says.
Feingold credits his family’s strong religious grounding and dedication to service for his own very clear sense of identity, something he has had from an early age. “I imagine that when I was born my dad held me up and said, ‘You’re a Jew, you’re a Democrat, and you’re a White Sox fan.’ ” The image he evokes brings a broad smile to his face, the affection for his father clear. “There are a lot of lawyers in my family, and I wanted to be a lawyer and to make a difference in this world for as far back as I can remember,” he says.
That early ambition intensified when Feingold went off to university in the early 1970s in the heat of anti-Vietnam War protests. “I knew I’d go into politics, but certainly the activism of the time influenced me too.” He graduated from the University of Wisconsin-Madison in 1975, received a degree from the University of Oxford as a Rhodes Scholar in 1977, and then went on to Harvard Law School. And within five years of earning a JD, he was representing the people of Wisconsin, having won a seat in the Wisconsin State Senate, where he served from 1983 to 1993.
Feingold entered national politics in 1993, when he won the first of three terms as the U.S. senator from Wisconsin. But he was not a quiet, toe-the-line sort of guy. He served on the judiciary, foreign relations, budget, and intelligence committees, and he made a name for himself as someone who actively reached across the aisle to find compromise, to best serve the people he represented. But his legacy goes beyond that. Feingold’s deep commitment to upholding the U.S. Constitution put him at odds with his own party at times and occasionally even with the entire Congress. He was the only Democratic senator to vote against a motion to dismiss the 1998–1999 congressional impeachment case of President Bill Clinton, saying that House prosecutors should have time to pursue the case (though he ultimately voted against conviction on all charges). He was the only senator to vote against the Patriot Act. He was one of 23 U.S. senators to vote against H.J. Resolution 114, which authorized President George W. Bush to use force against Iraq in 2002. And in 2005, he was the first senator to call for the withdrawal of troops from Iraq.
At a recent class, students debated the merits of the filibuster, something Feingold knows a lot about.
In December 2005, when the Patriot Act was up for renewal, Feingold led both a bipartisan coalition of senators to remove some of the act’s more controversial provisions and a filibuster against renewal of the act itself. (While this ultimately resulted in a compromise on some of the bill’s provisions, and the compromise bill did pass, Feingold was among the 10 senators who voted against it anyway—because the bill still lacked key protections for some civil liberties.)
Brennan describes the moot court that students staged, in which the filibuster was put on trial. “I was one of the judges,” she says. “We determined that because the Senate has the option to change rules with a simple majority on the first day of a new session, it also has the power to change the filibuster rules. That the Senate chooses not to, while it can, is the real issue. So we didn’t reach the question of constitutionality.”
Sometimes a teacher can bring lessons to life—but it helps to have someone who has actually lived through much of the syllabus.
“This really was an incredible opportunity—to listen to his stories, to hear what really happened from someone who was there,” says Brennan. “It was pretty entertaining too.” SL