High attendance reflects high drama of "Shakespeare and the Law" debate

Issue July/August 2006 By Bill Archambeault

More than 300 people attended the "Shakespeare and the Law" staged reading of "Julius Caesar" and a spirited political discussion on the current debate over executive power on May 31.

"Caesar, Bush and the Limits of Executive Power," the sixth in the "Shakespeare and the Law" series, began with a staged reading of excerpts of "Julius Caesar."

The cast, which included prominent members of the legal community, featured Wayne A. Budd, senior counsel with Goodwin Procter LLP, as Caesar, U.S. District Judge Rya W. Zobel as Marc Antony, U.S. District Judge Douglas P. Woodlock as Brutus and Daniel J. Kelly, chairman of the Federalist Society's Boston Lawyers Chapter, as Cassius. Kelly, a partner at McCarter & English LLP in Boston, also produces the "Shakespeare and the Law" series.

The program, which enjoyed its highest attendance since it began in 2001, was sponsored by the Federalist Society's Boston Lawyers Chapter and the Wang Center for the Performing Arts and co-sponsored by the Massachusetts Bar Association.

"To equate 'Julius Caesar' with today's events is entirely appropriate," said former U.S. Attorney General Dick Thornburgh, the evening's host, in his welcoming remarks.

After the performance, which featured Budd's booming voice in the lead role, moderator and Fox News Channel correspondent Megyn Kendall opened the discussion.

"We've got enough legal brainpower in here to solve most of the world's problems, so let's start with executive power," she said.

The debate that followed, however, quickly developed into more of a political argument than a legal one.

Discussion leader Harvey C. Mansfield, a Harvard University professor of government and the author of the recently published, "Manliness," said of the play, "It is called a tragedy, but what is the tragedy? It is a story of regime change."

Mansfield went on to say that the great tragedy was that full use was not made of Caesar's greatness. "It's a play about greatness and how greatness could not succeed," he said before turning to modern times. "We need a president who can do anything in an emergency, but who can also be held accountable."

Fellow discussion leader Juliette Kayyem, a lecturer in public policy at Harvard's John F. Kennedy School of Government, said there were a number of similarities between Bush and Caesar. In reference to events of the last year or so, including Hurricane Katrina, Kayyem said that "Bush has gone from being the commander in chief, much like Caesar, in the last year or so, to looking like Nero."

One man in the audience muttered a complaint about liberals blaming Bush for Katrina, and throughout the evening, the audience reacted strongly to statements for and against Bush.

Jennifer C. Braceras, who sits on the U.S. Commission on Civil Rights and teaches at Suffolk University Law School, said that because Bush had briefed certain members of Congress about the secret wiretapping program, their criticism of Bush after the program was publicly revealed was motivated by personal gain, and was equivalent to the chorus in "Caesar."

But noted civil liberties attorney Harvey Silverglate, who played "Cinna" and is of counsel to Good & Cormier, said he was surprised at Congress' delayed and muted reaction to Bush's aggressive use of executive power.

"I have 40 years of Boston Phoenix columns to prove that I have distrusted every president," he said, but noting that he was surprised by Congress' refusal to scrutinize Bush over the issue. "It is quite remarkable that we have had to wait this long for this Congress to stir."

Thornburgh responded: "Let me say a word in defense of ambition. If I have to go to a heart specialist, I want them to be ambitious. There's nothing wrong with ambition. And it's because of our system (of checks and balances) that ambition never goes unchallenged."

The discussion turned to whether Bush would be criticized as harshly if programs like the wiretapping had been revealed closer to Sept. 11, 2001. Kelly said there is public support for the process the Bush Administration is using in its War on Terror.

"No one aside from Harvey and his colleagues are offended by the warrantless wiretapping," said Kelly, whose response was met with a booming "No" of disagreement from the audience. Kelly retorted, "Are you all from Harvey's firm?"

Silverglate attributed the falloff in support for Bush to the public disclosure of what Bush has been doing secretly. "All of a sudden, the veil has been pulled away and now there's a crisis in confidence."

Kelly responded, "Oh, Harvey, that's nonsense."

Silverglate disagreed with Budd's statement that generally, the American public favors strong executive powers when the nation is at risk and is only growing skeptical of Bush's expansion of those powers because the nation is growing "war weary."

"I don't think the problem is that we're war weary," Silverglate said. "We've slogged through 50 years of war because our system of checks and balances worked. The reason we have institutional checks and balances is because it's assumed that a president is going to be ambitious. But the system has to work."

One audience member, referring to the revelation of Bush's unprecedented use of signing statements to ignore parts of laws that he doesn't agree with, said, "The fact that we have had over 750 signing statements is very troubling."

But Kelly said it was not an extensive number of signing statements, and that Bush was entitled to use them if he felt that parts of a new law were unconstitutional rather than vetoing the entire bill.

The evening ended with a statement from former U.S. Sen. Slade Gorton, who served on the government's 9-11 Commission, about the public's comfort level with increasing executive power during times of crisis.

"I believe the use of those powers has led to the frustration of potential terrorist attacks," he said. "If there's another attack tomorrow, we'll be demanding that the president do more, not less."