In Memoriam: Bernard "Bernie" Nussbaum (1937-2022)
The longtime Wachtell Lipton partner and former White House Counsel had an amazing career, but his greatest legacy lies in the lives he touched.
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Bernard W. Nussbaum, a longtime partner at Wachtell Lipton and former White House Counsel, passed away on March 13, at the age of 84. The cause was heart disease, according to his son Frank Nussbaum. Obituaries for Bernard Nussbaum appeared in the New York Times, the Washington Post, Law.com, and Law360.
I was a bit disappointed in how heavily the Times and Post focused on Nussbaum’s relatively brief service as President Bill Clinton’s first White House Counsel, from January 1993 to March 1994—fourteen months out of a distinguished legal career that spanned more than six decades. So I’d like to take the opportunity to memorialize Nussbaum—or “Bernie,” as everyone knew him—in these pages.
Although I worked in the litigation department at Wachtell Lipton, I was not lucky enough to work closely with Bernie. I worked on two cases that were major matters (and big victories) for him—IBP v. Tyson, in which he successfully represented IBP in its effort to get Tyson Foods to proceed with their merger, and the World Trade Center insurance litigation, in which Bernie won a $2.2 billion jury verdict for WTC developer Larry Silverstein—but both teams were large, and I didn’t work on Bernie’s parts of the case.
Fortunately, I got to know Bernie years later in my work as a journalist, when I would periodically reach out to him as a source. For example, in 2008 I wrote a piece for the New York Observer called “Lat’s Field Guide to N.Y. vs. D.C. Lawyers.” As someone who spent time at the top of both the New York and Washington legal worlds, Bernie was an obvious source. Here’s what he told me:
“Washington is a company town, a little place, a little village, with one major industry: the United States government,” said Bernard Nussbaum, a longtime partner at Wachtell, Lipton, Rosen & Katz in New York, who served as White House counsel in the Clinton administration. “New York is a multifaceted community, with overlapping circles of finance, law, business, the arts, fashion—a much broader world.”
“Even though New York has this reputation for being hard-nosed and competitive, you want to live to fight another day,” said Mr. Nussbaum. “You win this case, they win that case; you win this deal point, they win that deal point. You don’t want to destroy the other party.”
D.C. is different. “When they go after you, they want to kill you,” said Mr. Nussbaum. “They want to drain your blood. They want a special prosecutor appointed; they want to send you to jail. I warned [President Clinton] not to appoint a special prosecutor [to deal with Whitewater]. Unfortunately, he didn’t listen—and he regrets it.”
Vintage Bernie: insightful, funny, candid, and in these respects, a true New Yorker. Although he spent three years in Cambridge at Harvard Law School, traveled to more than 30 countries after law school on a fellowship, and did two tours of duty in D.C., Bernie always stayed true to his New York roots, as the child of Polish-born Jewish immigrants who grew up on the Lower East Side.
Although Bernie had a remarkable legal career—Harvard Law, assistant U.S. attorney in the Southern District of New York, lawyer on the House Judiciary Committee investigating Watergate, White House Counsel, longtime Wachtell Lipton partner—he’ll be remembered most for his relationships with family, friends, and colleagues. He was married for 42 years to his first wife, the former Toby Sheinfeld, until she passed away in 2006. In 2008, Bernie married Nancy Kuhn, and they were married for 13 years until she passed away last year. Bernie is survived by his three children from his first marriage, Emily, Peter, and Frank; a stepson, Bill Kuhn; and a brother, Martin. On Twitter, his daughter Emily Nussbaum, the Pulitzer Prize-winning television critic of the New Yorker, remembered him as “a rare combination of a total mensch and a legal powerhouse,” with “a sharp mind, a deep soul, a loving heart.”
Bernie’s other “family” consisted of the many colleagues he worked with at Wachtell Lipton over the years. Theodore Mirvis, a leading litigator in his own right, spoke on the firm’s behalf at Bernie’s funeral. Ted Mirvis described three sides to Bernie. There was the “outside” Bernie, a renowned litigator of high-stakes cases; the “public service” Bernie, the former AUSA, Watergate lawyer, and White House Counsel; and the “inside” Bernie:
The greatest Bernie, the most impactful Bernie, the most beloved Bernie, was the “inside Bernie”—the Bernie inside our firm. Bernie cared for the people around him—lawyers, staff, everyone—and they cared back. Bernie taught us all so much—not just legal skills, but how to treat each other and how to treat our adversaries, and how to act even when the pressure of the case or the takeover or the government prosecution was at its peak.
Bernie never lost it. He never panicked. He exuded and inspired confidence. He had the special talent to cause others, whether they were clients, counsel, judges, to trust what he said. Bernie’s sense of humor and his sense of self enabled him to put everyone at ease. Bernie was the mentor of all mentors. We came out of law school knowing how to read cases; Bernie taught us to read people. He was a natural—how to care for people, how to touch peoples’ lives. He was a mensch par excellence.
Mensch indeed. As noted in his Wachtell Lipton obituary, Bernie served others not just through his work in government, but in myriad other ways. He sat on several philanthropic boards, including those of Mount Sinai Hospital, Brandeis University, and the Jewish Theological Seminary; he taught law, as a lecturer at Columbia; and he served as president of the Federal Bar Council (which will honor him at an April 6 event featuring Jonathan Moses, current president of the FBC and co-chair of Wachtell’s litigation practice).
As I mentioned, I did not have the good fortune of working closely with Bernie as a lawyer, but I know from my time at Wachtell Lipton that he was deeply loved and respected by partners, associates, and staff. May his memory be a blessing.
(I have pasted below remembrances of Bernie from other former colleagues.)
George T. Conway III, former Wachtell Lipton partner, on Twitter:
Elaine P. Golin, current Wachtell Lipton partner, on Facebook:
I just learned that a very dear mentor of mine, Bernie Nussbaum, passed away today. Unlike some of the senior lawyers I knew, Bernie was always incredibly kind and genuinely fun to work with. I learned so much from him about counseling clients and picking your best arguments. And, 25 years ago, when I was very junior and usually the only woman in the room, he made sure that my voice was heard and he would give full credit to my opinions and analysis, in front of rooms full of more senior male lawyers, which made all the difference back then.
Like my grandmother, he worried a little too much about my personal life, fretting about my not having children in that old Brooklyn Jewish way, but in an era when few acknowledged there was such a thing as a personal life, that too was endearing. And that accent always felt like home. Plus the stories he would tell—between Watergate and the Clinton White House, he had some good ones, and the punchline always left you giggling! It was a privilege to work for and with Bernie.
My heart goes out to his children and grandchildren. His memory will certainly be a blessing.
Scott Black, chief legal officer and chief compliance officer at Hudson Bay Capital Management LP, by email:
It was 1997, and I was a second-year associate at Wachtell Lipton Rosen & Katz, where I had just been staffed on a dream case: Wachtell was representing Hilton Hotels in its tender offer for ITT. Back in those days, Wachtell was notoriously leanly staffed—its partner to associate ratio was virtually 1:1, meaning junior attorneys worked side by side with partners and were in the midst of all the action. In fact, I was the lone associate on the case. And given its magnitude, several of the firm’s greatest litigation partners were on it as well, led by senior partner, Bernard (known to all of us as “Bernie”) Nussbaum.
Bernie was already a legend, having reached the pinnacles of success in both New York and Washington, repeatedly flipping back and forth between the public and private sectors. Having begun his career as an assistant United States attorney in the Southern District of New York, he joined Wachtell shortly after its inception and proceeded to take leaves of absence to pursue such public service endeavors as running for a seat in the New York State Assembly, to serving as senior counsel on the House Judiciary Committee investigating the Watergate scandal. In 1997, Bernie had recently returned to the firm after serving as President Clinton’s first White House Counsel, and he was a titan in the corporate litigation bar.
The Hilton case moved at a breathtaking pace. Faced with an upcoming annual meeting at which the ITT board risked losing the Hilton proxy fight, ITT had sought to implement a recapitalization that would have blocked its shareholders from voting on Hilton’s proposal. Wachtell had filed a motion for emergency relief in Nevada, where ITT was incorporated, asking the court to block the recapitalization and allow the matter to proceed to a shareholder vote. A hearing was set for the end of September, just weeks before ITT’s annual shareholder meeting was to take place.
The litigation team flew out to Las Vegas the day before the hearing. Although the Wachtell lawyers were among the greatest in their field, this area of the country was far from their home turf—the Chancery Court of Delaware, where most corporate battles take place. In fact, in the course of briefing the argument, we came to learn that there was only one real case of any precedential value governing the Nevada court, and the federal judge trying the matter had little experience handling matters of this nature or magnitude. Bernie was tasked with presenting the argument. How would this East Coast lawyer, the child of Polish immigrants, who oozed New York Lower East Side from his every pore, fare in the wild west?
As I settled into my courtroom seat, marveling at all the press and spectators packed behind me, I caught the glance of another one of partners who looked at me as if to say, “Watch, young man, and see how this is done.”
The courtroom fell silent as Bernie rose and in his unassuming manner, approached the pulpit and in his thick New York accent began:
“Your Honor, I have always wanted to star in a Vegas show, and I would like to start by singing a song.”
After a few quips back and forth with the judge, in a nod to IT’s months of corporate maneuvering and the upcoming vote, he proceeding to break into a recitation of the Kurt Weill standard, “September Song”:
“It’s a long, long time, from May to December, but the days grow short when you reach September…”
What followed was a towering elocution of the shareholder right to vote, so inspiring that it made me want to spring from my seat in celebration of being an American. Completely overlooked was the great irony of it all: Wachtell had made its name largely through its creation of the “poison pill” and its defense of corporate boards against shareholders seeking to implement corporate change, the very change Bernie was now arguing to be a fundamental shareholder right. But none of that mattered now because in this case Hilton was on the side of the shareholders and Hilton had hired Bernard Nussbaum to fight its fight.
The case was essentially over the moment Bernie sat down. ITT’s counsel, Cravath, had sent one of their senior partners to plead its cause, but he had little chance. The judge issued a bench ruling, blocking the ITT breakup and declaring the Hilton shareholders’ right to vote on the company’s future.
While that trip remains one of the highlights of my legal career, what is even more memorable was the tremendous respect with which Bernie treated others. Despite his lofty accomplishments, he carried himself with great humility and always expressed a great interest in those around him. Despite my greenness at the time, at no point did Bernie make me feel like I was any less important than any other member of the team. To the contrary, much to my amazement, on several occasions he sought my input and treated all of us as essential components of a unified front.
My experiences with Bernie were limited (I left Wachtell in 2002), and there are undoubtedly countless others who have equally memorable stories to share. It is hard to do justice to a man who was one of a kind, but I hope this recounting sheds just a bit of light on a wonderful human being who elevated the art of advocacy to that of a song.
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Absolutely LOVED reading this. How much I regret not knowing this masterpiece of humanity. Thankyou for writing about him.
Scott Black's piece of this made me tear up this morning. Oh, to be a person who touched lives like Bernie did.