July 07, 2005
The Person Who Graduated #2
Posted by Gordon Smith

It is well known that William Rehnquist graduated #1 and Sandra Day O'Connor graduated #3 in the Stanford Law School class of 1952. Have you ever wondered who graduated #2?

Here he is: David Salisbury, a business lawyer from Salt Lake City. He never had the fame obtained by his classmates, but he did pretty well for himself.

UPDATE: Well, this post has gotten more attention than I anticipated. People are wondering how I know this. Actually, I don't remember who told me this, but I have "known" it for long time. Salisbury is a neighbor to my wife's family in Salt Lake City, and I have met him, but I know that he didn't tell me. The tipper was probably someone with his firm, where I interviewed during my first year of school. But this email gives me pause about my sources:

I'd always heard that it was Thomas Elke, someone I've never met but who was a founding partner of Elke Farella & Braun in San Francisco (which became Farella Braun + Martel after Elke left the firm to go to seminary). I was an associate at FB&M after law school.... "Rehnquist#1, O'Connor#3, and Elke#2" was definitely part of the Elke legend at the firm.

I notice that Farella graduated from Stanford in 1954, and Braun graduated from Stanford in 1952 ... the same class as Rehnquist and O'Connor. Also, Martindale Hubbell shows Elke having graduated from Stanford Law School and being admitted to the California bar in 1952. So this story has a superficial plausibility, too.

I have emailed Salisbury, Farella, and Braun, and I will provide any updates that come my way.

UPDATE #2: Frank Farella just responded to my email and wrote that stories of Elke's placement as #2 are "folkloric." Further, Will Baude sent me this link to The New Republic, which debunks the Elke story:

I heard a bunch of names floating around, but most of the rumors pointed toward Thomas Elke, who was known by his classmates both for being brilliant and for getting kicked out of law school for streaking naked from the dorms to the post office. ("I went in and told [the dean] it was me, and he said, 'I don't care that much about streaking but you're making us look like damn fools.'" The dean made him leave school but let him back in a year later.) Elke's law-firm partner, Jerome Braun, who was a year behind him at law school, has been promoting Elke as Number Two for years. But Elke claims it's not him. "I'm not Number Two," he said. "A lot of kind of dorky guys lay claim to Number Two, but there are no records." (emphasis added)

Hmm. So if there are no records about who is #2, are we sure that Rehnquist was #1 and O'Connor was #3? According to the TNR article:

In all likelihood, the only people with the knowledge and incentive to keep track of the rankings were the future justices themselves. If we know that Rehnquist was Number One and O'Connor was Number Three, then it is probably because they have spread the word.

But on this point, see Orin Kerr. What a mess!

UPDATE #3: A Conglomerate reader emailed this, which made me laugh out loud: "You should delete your Stanford #2 post from your blog for it may destroy one of the biggest legends among students at Wisconsin Law (where I spent my 1L year)… that Stewart Macaulay was #2." It made me laugh because Stewart graduated in 1954 from Stanford Law School. Wrong class.

UPDATE #4: I just heard from David Salisbury, who wrote:

To my knowledge Stanford never published class standings and there developed a great deal of speculation as to who was No. 2 after it was revealed who the No.1 and 3 were.  I am not even sure who was No. 3.  In any event a number of people who thought they knew have told me that I fit into that spot but I have never personally claimed that position myself nor given a lot of thought to it.

Very classy, but it does leave this whole question a mystery.


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