COVER STORY
Neal’s Law
What makes Neal Katyal a formidable lawyer in the country?

Sunil Adam meets with Georgetown University law professor Neal Katyal, one the leading attorneys in the country associated with some of the most important cases that will determine America’s constitutional and judicial course of the future.

Washington, D.C. is not the place to be in early September. With temperatures in the relentless 90s and humidity at homicidal highs, one would rather be in Crawford, Texas, than in the nation’s capital. Not so for Neal Kumar Katyal, the 34-year-old John Carroll Professor of Law at Georgetown University. He needed to be close to the center of action, a few blocks away on Capitol Hill where the Senate Judiciary Committee was grilling Judge John Roberts, the nominee for chief justice of the United States Supreme Court, and someone who could be considered Katyal’s nemesis.

But Katyal himself wouldn’t characterize him in those terms. Sure, on July 15, as one of the three justices of the District of Columbia Circuit Court of Appeals, Roberts ruled against Katyal’s client, Salim Ahmed Hamdan, a Yemeni national who was captured during the fighting in Afghanistan and is being detained at Guantanamo Bay, Cuba. Hamdan, who has been in solitary confinement for over a year, was the driver for Osama bin Laden during 1996-2001. The court unanimously upheld the Bush Administration’s plan to convene military commissions to conduct trials of Al-Qaeda leaders accused of war crimes.

No wonder Katyal, named one of the top 40 lawyers under 40 by the National Law Journal, was a much sought after legal expert in Washington to dissect any chinks in Roberts’ armor. A number of influential Congressmen picked his brains in their preparation for the Senate confirmation hearings. The solicitations were bipartisan. Katyal briefed, among others, Republican Senator and Chairman of the Senate Judicial Committee Arlene Specter as well as Democratic Senator John F. Kerry.

Katyal is not perturbed that Roberts is headed for the Supreme Court where he has filed an appeal against the circuit court’s decision. That’s not merely because Roberts has indicated that, if confirmed, he would recuse himself from cases he was involved in in the circuit court, but because he has implicit faith in the judge’s professional and intellectual integrity. Katyal should know. He worked for Roberts as a summer associate after he graduated from Yale Law School.

Katyal, who is also a visiting professor at Harvard and Yale law schools, recalls with unreserved respect how he came to work for the conservative advocate. Before accepting employment with his law firm, Hogan & Hartson, Katyal says he asked Roberts whether or not he would be comfortable with someone who wears his liberal values on his sleeve. Roberts apparently said that he would not only be comfortable with it, but wanted Katyal there because he wanted to learn how others see the world differently from him

“He’s the smartest, the most decent lawyer I know,” Katyal says about the man who is set to become the youngest chief justice of the United States. Despite their ideological differences, Katyal admires Roberts so much that in 2002 he wrote to then-Judiciary Committee chairman Senator Patrick Leahy, urging the committee to confirm Roberts as a judge to the D.C. court of appeals. “I believe that John Roberts has the integrity, temperament and brilliance to be one of the finest judges to have ever served on the United States Court of Appeals for the District of Columbia,” he wrote.

A seemingly ringing endorsement, which also finds resonance in Katyal’s opposition to a charge of conflict of interest against Roberts. A number of legal experts have criticized the judge for not recusing himself from the Hamdan case – a case in which President George W. Bush is an interested party – even though he was already tipped by the White House about his candidacy for the Supreme Court vacancy caused by Justice Sandra Day O’Connor’s retirement. Katyal says Roberts is “perfectly capable of assessing the ethical issues on his own.”

Does this mean Katyal supports his candidacy? While he declines to answer any question relating to Roberts as a nominee for the Supreme Court, or his likely relationship with the cases that are pending, Katyal nevertheless comments indirectly. Katyal, who clerked for Supreme Court Justice Stephen Breyer, says he had no hesitation in supporting Roberts for the lower court, but it is much more complicated with regard to the Supreme Court given the current matrix on the bench – it is already loaded with activist judges who are determined to undermine the other branches of government, he says.

He backs his apprehensions by citing the fact that in the first 200 years of its existence, the high court struck down 128 laws, whereas in its first five years, Chief Justice William Rehnquist’s court struck down 21 laws. That is why Katyal says he’s disappointed with Roberts’ confirmation hearings – he would have preferred if the Senate committee focused on the direction of the Supreme Court rather than on the candidate, considering his confirmation is virtually assured thanks to the Republican majority in the Senate.

Belying his over-six-foot frame, muscular build and an authoritative Greco-Roman nose, Katyal speaks surprisingly softly even on issues he feels passionately about. Particularly since 9/11, he has been concerned about the executive branch’s usurpation of extra-constitutional powers. In testimony before the Senate Judiciary Committee in November 2003, Katyal argued for the need to preserve individual freedoms while defending against terrorism. He questioned President Bush’s executive orders authorizing military tribunals and then-Attorney General John Ashcroft’s decision to monitor attorney-client communications. His argument: “The president hasn’t made the case either to the American people or to Congress for why these drastic actions are necessary.”

Katyal’s critique carries weight not only because he’s a constitutional expert, but also because he has a practical perspective. Having been the national security advisor to the deputy attorney general in the Clinton Administration from 1998-99, Katyal has been on the “other side” and understands the operational imperatives of counterterrorism. All he says is, in order to maintain the constitutionality, any special powers that the government needs should be legislated. In other words, “it should be through an act of Congress, not the action of one man,” argues Katyal, whose academic specializations include presidential power, slavery, affirmative action and national security law.

Does he come across as too liberal? “I’m less liberal than I was when I was a student,” says Katyal, even as the great African American abolitionist and advisor to President Lincoln, Frederick Douglas, gazed down from the massive poster in his office. But he does have his pet issues, like affirmative action. Katyal successfully represented the Michigan University case at the Supreme Court which issued the landmark, albeit qualified, judgment that race can be a factor for universities shaping their admissions programs, and that a broad social value may be gained from diversity in the classroom.

Ironically, Katyal’s support for affirmative action in educational settings, and his insouciance, if not opposition, in the employment sector, could be interpreted to be somewhat self-serving. After all, the workplace also could gain “broad social value” through affirmative action. He’s not unlike many Indian Americans who prefer concessions in getting college admissions, but are quite happy to compete in the job market knowing they are less likely to be discriminated against than other minorities, particularly African Americans, who bear the brunt of racism in the country.

But in his assessment, his less liberalness is related to crime and law enforcement. He favors prospicient ideas to preventing crime rather than antediluvian legal solutions. “Some of my work, inspired by my dad, involves using architecture and city planning to prevent crime. Good lighting can do a lot more to prevent crime than a bunch of laws that are never enforced. Designing housing projects in certain ways can do the same thing,” he says.

Clearly, his ideology flows from his heart, not through any political dogma. Born in Chicago to immigrant parents from Punjab – his mother is a doctor and his recently deceased father was an engineer – Katyal has had an apolitical upbringing. But only when his father lost his job in very unfair circumstances, did he begin to look beyond the Reaganesque circles he belonged to in his early youth.

He feels today the dice are loaded against the poor under President Bush’s tax policies. He cites the fact that he and his doctor wife, Joanna Rosen, who already have substantial income because of their avocations, made more than their combined yearly worth when they recently sold their house for untaxed profit. That is unfair for the 37 million Americans who are poor, he feels.

It’s possibly his belief in the notion that government and the State have a responsibility for the underprivileged that draws him closer to the Democratic Party, even if he’s not a registered member. Katyal not only worked in the campaigns for several Democratic candidates, but also was co-counsel for Vice President Al Gore in the Supreme Court election case, Bush v. Palm Beach Canvassing Board, which challenged the Florida voting system. Did he think malversation in Tallahassee cost Gore the presidency? Did the Republicans steal the 2000 election? He smiles and declines to answer. All he didn’t do was wink.

But most of all, Katyal is driven, ideologically, politically and, one might add, professionally, by his sense of patriotism. He is driven by passion to give back to a society and country that has given him so much. That explains his more-than-expected involvement in pro bono cases, including the Hamdan case. In fact, in 1999, he was commissioned by the Clinton Administration to co-author a report on the ways to enhance pro bono activities and diversify the bar. Clearly, the country and the constitution come first. That’s Neal’s law.

So, what does it all add up to? Where is he heading? Katyal is too busy to contemplate. Particularly these days. Trips to Guantanamo Bay, writing petitions, filing appeals, writing for and speaking to the national media, briefing Congressmen, lecturing at seminars, participating in symposiums, a weekend visit to his in-laws in Woodstock, New York, a quick trip to India… he barely has enough time to cuddle up with his three boys or enjoy his impressive selection of wines to contemplate the future. Will he run for public office? Katyal looks almost taken aback by the query. “No,” he protests spontaneously, and quickly continues, “Didn’t think of it. Maybe. Who knows?”

His peers in Washington seem to have a better idea on that count. At a panel discussion at the Brookings Institution on the Senate hearings on Judge Roberts, moderator Stuart Taylor, a columnist for the National Journal, pointedly asked panelist Katyal if a future Democratic president nominated him to the Supreme Court, which could well be, would he also be as evasive as Roberts was at the hearings? Katyal, rather sheepishly, protested it wouldn’t happen.

The professor protests too much.