Law School Professors Rest After Election Fury

"Good Morning America" didn't seem to understand why Harvard Law School (HLS) assistant professor Heather K. Gerken, who had established herself as an expert on the Presidential election controversy, refused to appear on their show last December.

They offered her a car and promised to get her to her civil procedure class only five or ten minutes late.

But Gerken refused.

"I had promised [my students] donuts that morning," Gerken says.

While "Good Morning America" was surprised by Gerken's refusal, the 31 year old rising star in the legal field says the decision not to appear on one of the nation's most watched television programs was not a difficult one.

It was a decision she had to face often during the month-long Florida election controversy when Gerken, an election law specialist, became one of the most sought after political commentators in the country.

Gerken says she was determined not to let media demands pull her away from teaching.

"My primary job here is to teach and write--that's why they hired me, and that's what I enjoy," she says. "I never missed a class, and I was never unprepared or late."

And though Gerken's time has been in increasing demand, she has remained loyal to her students.

The list of her media appearances following the presidential election covers two typed pages and includes NBC News, CNN News, The Charlie Rose Show, Lehrer Newshour, Hardball with Chris Matthews and almost every prominent newspaper in the country.

"It was the busiest month of my life," Gerken says. "[The calls from the media] just feed on themselves. Once you get a couple of calls, they just come in exponentially."

While professors from the Law School served on the front lines of both the Republican and Democratic camps, Gerken says she tried to be a neutral and objective commentator.

"It was great to have Heather Gerken who could speak objectively. A lot of media want that," says HLS communications director Michael A. Armini.

"Whenever I went on a show, I told them I wouldn't represent the Republicans or the Democrats," Gerken says. "I didn't want to be spinning for either side."

In her television appearances and newspaper quotations, Gerken defended the constitutional system and the integrity of the U.S. and Florida Supreme Court justices.

In a November 20 CNN.com online chat, she reassured the audience of the soundness of the judicial system.

"The real constitutional lesson is that we have a very stable democracy," she says. "Although it's frustrating, things are working the way they are supposed to in a constitutional system. In many other countries, tanks would be rolling down the streets at this point,"

Gerken was asked in the same CNN.com online chat what lessons could be learned from the election debacle.

"The lesson is that we need to have a better system for running our elections. We need consistent ballots and better machines. And we need clear statutory rules on how controversies like this one should be resolved."

Gerken's extensive commentating on the election gave her a first-hand look at the vast media operation surrounding the election controversy.

"The media played a very bad role in this election," she says. "The coverage was superficial. They played right into the hands of spinners too eager to turn this into a big political game."

Gerken says she was frustrated with the media's lack of respect for the judicial process. Once, she says she was asked whether cameras should be allowed in the Supreme Court.

Gerken said no.

"They couldn't cover it with the dignity they should," she says.

Rise to Fame

Gerken earned stellar academic credentials, graduating summa cum laude both from Princeton in 1991 and from Michigan Law School in 1994. She went on to private practice after serving as a clerk for Supreme Court justice David H. Souter '61.

She never thought that she would become a professor, but HLS's offer proved irresistible and she joined the faculty as an assistant professor last fall.

"This is probably the greatest job on earth," she says. "I keep waiting for someone to come in and tell me they will no longer pay me to do it."

Gerken says she never thought election law would become the center of a firestorm of media attention.

"Election law is sort of a small specialty," she says. "It has only recently been recognized as a serious academic field."

"She didn't think election law would be a hot topic," Armini says. "She just got thrust into the spotlight."

And according to her HLS colleagues, she has handled the spotlight well.

"[Gerken] was extremely intelligent and measured," says HLS Professor Einer R. Elhauge '83, who represented the Florida State Legislature in the election controversy.

"She is so articulate and intelligent and I think she just blew the national media away," Armini says.

Gerken's bout with fame did not come without a few strange occurrences. She says she got e-mails from television viewers commenting on her haircut or her make-up.

"It made me realize that in the long term the spotlight is not where I want to be," she says. "I have this New England sense of privacy."

In the Spotlight

Though Gerken kept her distance from the political polarization of the election controversy, her fellow HLS professors were quickly snapped up by both sides.

Professors Lawrence H. Tribe '62 and Alan M. Dershowitz figured prominently in the Democratic camp and Professors Elhauge and Charles A. Fried argued on the Republican side.

"Harvard did itself proud during the period," Gerken says. "They basically produced extraordinarily powerful briefs under a very limited time period."

Tribe was the most visible HLS professor in the controversy. As lead counsel, Tribe argued Al Gore '69's case in front of the Supreme Court. Tribe says he is also planning to write two books on the election.

"We will not stop discussing and analyzing this anytime soon," he says.

Elhauge, who says he pulled his first all-nighter since college during the period, called the legal battles "extremely exciting" and "terrific fun."

"It was an epic historical issue and the short time frame made it even more interesting," he says. "In some cases we had to produce briefs in 24 hours."

Elhauge and Tribe downplay their own role and the role of HLS in the election.

"I don't think I affected the outcome in any significant way at all," Tribe says. "Harvard had its share of oars in the water," he says. "But I don't think we changed the direction of the boat."

But he says he was not surprised by the presence of HLS in the election battle.

"It is not unusual in an election this litigation oriented that [HLS] would have such a role," Tribe says.

According to Gerken, Elhauge and Fried's brief helped set the course of the debate.

"The Supreme Court opinion was largely modeled on the brief that [Fried and Elhauge] wrote," Gerken says.

As for Gerken, she says she is not upset that the whirlwind of media attention is over, and is looking forward to returning to the academic lifestyle.

"After a month I was ready to retire to a quiet life where I can write what I want and I don't have to say everything in a soundbite."

--Staff writer William M. Rasmussen can be reached at wrasmuss@fas.harvard.edu