He’s been a “Billion-dollar Lawyer” for more than three decades, spent time as a clerk to Judge Charles Clark and Judge Thurgood Marshall on the 2nd U.S. Circuit Court of Appeals. He made a massive impact on antitrust, energy and commercial law in Texas and throughout the U.S.
But what Harry Reasoner would rather discuss as he nears his 60th year of practice are his pro bono matters – from individual child custody cases, to winning the right for prisoners to write confidentially to their lawyers and get books and magazines, to the right of the University of Texas Law School to use race as a factor in admission.
He’s passionate about his work in Guajardo v. Estelle, which resulted in a settlement overseen by the U.S. District Court in Houston that survived for roughly 30 years, granting Texas prison inmates the right to obtain books and magazines and correspond confidentially with their attorneys as well as news reporters.
“One area of our society that could greatly stand improvement is our prisons,” says Reasoner. “We don’t do enough to rehabilitate. You ought to make it so that kids who get there come out with high school degrees.”
Reasoner made partner six years after joining Vinson & Elkins' Houston office. He won a verdict of $1B in 1989 in an antitrust battle over a proposed coal-slurry pipeline and would go on to serve as managing partner for 10 years, 1992 through 2001.
While in that role, he agreed to represent the University of Texas School of Law, where he had earned his juris doctorate decades before, in a lawsuit by Cheryl Hopwood and other white applicants claiming that the institution discriminated against them in favor of Black and Latino candidates.
Reasoner’s client prevailed, at least in the early stages of Hopwood v. Texas. In 1994, U.S. District Judge Sam Sparks ruled in the school’s favor, determining that under Bakke v. Regents of University of California, the school could consider race either to keep a diverse student body or to remedy past discrimination.
“We had a great trial judge,” Reasoner recalls. “He gave both sides a full and fair hearing.”
Two years later, however, the 5th U.S. Circuit Court of Appeals in New Orleans reversed, declaring that using race as a factor in admissions was unconstitutional.
In the aftermath, Texas responded with the passage of House Bill 588, a law signed by then-Gov. George W. Bush that promised a spot in state-funded universities to Texas high school students in the top 10 percent of their classes.
“The political theory was, ‘Well, they would at least get some minorities that way,’ which they did,” Reasoner says, “but it was an awkward approach.”
Just seven years later, in a 5-4 decision authored by then-Justice Sandra Day O’Connor, the Supreme Court overturned Hopwood in a decision on a Michigan case that found the constitution’s Equal Protection Clause didn’t prohibit considering race in college admissions.
Even before that outcome, though, Reasoner was happy that Vinson & Elkins had joined the fight on behalf of his alma mater.
“I thought it was important to the faculty of the law school and the university that a major business law firm like Vinson & Elkins recognized that they were doing the right thing, and it was good for our society,” he says.
Lawdragon: It’s obvious that concern about social good has been a driver in your career. Take me back if you would, to where you grew up and how you decided to be a lawyer.
Harry Reasoner: I grew up on a farm about five miles outside of San Marcos, a small town in central Texas of about 5,000 people. Today, San Marcos is on the Austin-to-San Antonio corridor and it has a college with a population over 40,000. But happily, when I grew up living on the farm, it was before television. My mother was a schoolteacher, and she taught me to read before I started school. And not having television to distract me, I learned to read a lot. That really affected my learning and attitude toward life.
LD: Where did you get the idea that you wanted to become a lawyer? Did you know any?
HR: I’m the first lawyer in our family as far as I know. I was lucky. I was a beneficiary of sexism because with the college there, I had a lot of women teachers who were superb teachers: Women didn’t have all of the opportunities they should have, so a lot of them taught school. I really feel like I had an unusually good education for a small town, including in math and science. The year I graduated was the first year they had National Merit Scholarships, and I won a National Merit Scholarship that year.
Partially because of having skipped a grade, I was too small to do any good at football. So I took up debate and was lucky enough have a great debate coach. We won the state championship. I had considered majoring in physics, but instead, I went to Rice University because it didn’t charge tuition, which made it the cheapest place I could go, and majored in philosophy. Although nobody told me so at the time, it turned out to be a very good background for law school since the law involves a lot of philosophical questions.
Then I went to the University of Texas to law school – again because it was the cheapest place I could go – since it was just a few miles from San Marcos. I was lucky that I had some great professors and Charles Alan Wright, who was the leading federal authority on rules, had clerked for Judge Charles Clark who had been dean at Yale Law. And so he recommended me to Judge Clark. I was his only non-Yale clerk, I think. That was a wonderful experience. Back then, circuit appeals court judges just had one law clerk. Now they have several. It was really an inspiring experience to be on the 2nd Circuit and I had so many great judges with Clark and Henry Friendly and Thurgood Marshall. Judge Clark passed away after I’d been there a few months, and I worked some then for Justice Marshall.
LD: Do you have any particular memories of working with Justice Marshall?
HR: Yes, he was a very warm and charming man. I did first drafts of a few opinions for him, though I only worked for him for two months. But he had a great talent of getting you to write what you thought and discussing it with you. And if he had questions or disagreed with you, he was very clear about it. He made the decisions, of course, and shaped the final opinion. But he had the great talent, like Judge Clark, of making you feel like you ought to say what you thought was right. Neither he nor Justice Clark wanted you to try to figure out what they wanted to hear.
LD: That was such a great way for you to get your bearings as you headed into private law practice. You must have been so inspired.
HR: I feel very lucky to have known both of them and I have admired them all my life. You don’t meet many people of that quality in life.
LD: So after that, when you were moving back to Texas, were you already familiar with Vinson & Elkins? How did it come to be your home?
HR: After law school, before I was a law clerk, I spent a year at the London School of Economics on a Rotary Foundation fellowship. And many of my close friends at law school, really the majority of the top members at the top of the class, went with Vinson & Elkins. So they immediately started lobbying me to join them, even while I was clerking for Judge Clark. It was Vinson, Elkins, Weems & Searls at the time, and David Searls was one of the country’s great trial lawyers.
I liked tax very much and antitrust, and I was going to spend six months doing tax and six months doing litigation and Mr. Searls called me and said, "I’m getting ready to go to trial. Why don’t you go to trial with me?" Which was an incredibly wonderful break for me. So for the first four years I was there, we went to trial in major antitrust cases every year. Many people spend their career in antitrust without ever get really getting to try cases.
LD: What was that first case that he brought you in on?
HR: It was set in Santa Fe, New Mexico. Conoco had acquired a small refinery in New Mexico and the federal government sued, claiming it was a concentration of market power. I started in 1964, and in that era, there was very intense prosecution in antitrust matters. Cases were filed that would never be filed today. We tried one in Washington, D.C., over the merger of insurance companies and one in New York over the Atlantic Richfield Co. deal with Sinclair Oil Corp. It was an incredibly lucky experience for me to get to be involved in all those trials. It’s better to be lucky than good.
LD: Obviously, you were very happy as a trial lawyer and enjoying the heyday of antitrust litigation.
HR: I really was. As I say, I think the pendulum swung too far. It’s impossible to separate antitrust from politics. The pendulum swings back and forth, and I think it went too far in the prosecutorial area then, though some argued it hadn’t gone far enough. And there are times when we haven’t prosecuted enough antitrust cases: The concentration that has occurred in areas like the digital world has been very great and whether all those acquisitions the large companies made should have been permitted is a good question.
LD: Well, it’s certainly fascinating from your perspective of having seen so much antitrust activity in an earlier era to witness the power that giants like Facebook and Google have now.
HR: You’re right. There has been increasing awareness and some alarm over the degree of concentration, though whether there will be a serious effort to address that is a good question.
LD: As the years went by and you branched out into other types of cases, were there others that were noteworthy to you?
HR: One of the great things about Vinson & Elkins was that they encouraged me to do pro bono cases and I tried a number of them where it was just me, from criminal cases to marital disputes. The cases that were most emotionally trying were child custody cases. But it was a great experience. Learning to be at ease and how to conduct yourself in a courtroom is such an integral part of being a trial lawyer. You have to get enough experience to get comfortable in a courtroom because if you’re trying cases in front of juries – or even in front of judges – if they see you uptight or nervous or being rigid or not communicating, it hurts.
LD: Tell me how you became involved in the Guajardo case.
HR: I had taken some federal cases and it was known and the chief judge of the Southern District of Texas, who had the Guajardo case, assigned it to me. I had some very good young lawyers working with me and I thought that the state and the prison system were very hardheaded about reading correspondence with lawyers and keeping prisoners from writing to the media. It was completely ridiculous. And they did things like not letting them get books, you know? You can imagine what a blessing books would be if you had to sit around in a cell.
So we tried it, and it went to the 5th U.S. Circuit Court of Appeals three times and we finally prevailed on every count. When they finally wanted to settle and we settled, we had a provision for us to be ombudsman, which I think was a very salutary thing because prisoners could write to us and get us to represent them to enforce the provisions of the settlement. We’d always have a small group of about three young lawyers who participated in answering that. It was a great experience with them going to court over it. But Congress unhappily passed a statute circumscribing the power of the federal courts to oversee prisons in that fashion. Whether that was a legitimate statute or not, I don’t know. So that ended our approximately 30 years of involvement.
LD: And what about Hopwood?
HR: As for Hopwood, the Mark Yudof Dean of the University of Texas School of Law was a close friend of mine. He called me for advice when the school was sued over its affirmative action policy. He said, “Who would you recommend?” I said, “Well, what about me?” So we tried that case, and the Attorney General’s Office just really left it to us. But unfortunately, when we got to the 5th Circuit, the three-judge panel held against us two to one. And the judge who wrote it said he knew that when it came before the U.S. Supreme Court again, Sandra Day O’Connor would not be in favor of affirmative action.
LD: With everything that you’ve seen in the law, do you love it as much as when you started? And has it gained an importance in terms of the role that it plays in this country?
HR: Having a judicial system where most of our judges have the attitude of trying to honor the law by doing the right thing – though you and I may disagree with them about what that is – is one of the strongest aspects of our democracy. My impression is that in many countries, nobody expects the court to cross the government, and that’s fatal. You can’t have a democracy where you don’t have honest and responsible courts.
In trying cases, I’ve been lucky in the number of cases I’ve tried for people doing the kind of large practice that I do. But I love the game. I’ve been lucky in that I’ve won almost all the cases I tried, although as a friend of mine told me, “Hell, if you don’t lose cases, it just means you settle too easily.”
LD: I know you’ve also served on the Texas Access to Justice Commission. Tell me about that please.
HR: I’ve spent 15 years on the commission, serving as chair for 12, and it has been very rewarding. Although I’d always done pro bono, I was shocked when I started discovering how truly difficult getting access to justice is for a high percentage of our population. In a high percentage of divorces, they either don’t have lawyers at all, or don’t have lawyers on both sides. And then when you get into child custody, it’s one of the most important things courts can do. A lot of people can’t afford court costs and it was keeping them out of court. Nathan Hecht, the Chief Justice of the Texas Supreme Court, is really one of the leaders in the country in fighting for access to justice, and the Texas Supreme Court has been extremely helpful in developing rules and practice. If you can’t pay the fees now, the Texas courts nevertheless have to permit you to proceed.
LD: That’s part of why I was so interested in the early part of your career. As a big firm lawyer to be aware that the courts are not easy for a lot of people and that they need help shows how you’ve come full circle, bringing the understanding you acquired as a farm kid.
HR: That’s absolutely right. I don’t know whether you’ve ever observed people go to court without a lawyer, trying to represent themselves pro se, but God, it’s hell. I remember the first time I went to court as a young lawyer by myself, instead of giving an exhibit to the right clerk, I was giving it to the court and I thought, “Oh, hell, this is terrible. I’ve lost this.”
I’ve always been proud of how much Vinson & Elkins supports pro bono. We work hard at it. Then I’ve always believed as a citizen that lawyers ought to have a professional obligation to give back to society. We need to give back if there is to be “justice for all,” as our Pledge of Allegiance promises. I almost feel sorry for people who don’t care or don’t feel the need to help humanity: It seems to me it’d be a much shallower or less rewarding life.