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Omaha Magazine

Constitutional Law Professor G. Michael Fenner

Jul 14, 2016 03:28PM ● By Carol Crissey Nigrelli

Among the diplomas, plaques, commendations, papers, family portraits, artifacts from a life well-traveled, and tons of books that decorate G. Michael Fenner’s office at Creighton University School of Law, one photo in particular triggers a double take. Inscribed “To my dear friend Mike, I simply love spending time with you,” the photo is signed “Clarence.”

The friendship between the law professor and Associate Justice of the U.S. Supreme Court Clarence Thomas goes back many years. “His wife (Virginia Lamp of Omaha) was one of my law students and we met him when he was just Clarence Thomas,” Fenner explains. “Every other year here in Omaha I co-teach a seminar on the Supreme Court with Justice Thomas.”

Fenner has focused his professional life on our fundamental freedoms. Along the way he has gained a national reputation as a constitutional scholar—a reputation that has allowed him to get to know jurists such as Thomas as people, allowed him to understand their points of view, and respect their decisions, whether he agrees with them or not.

“My wife, Anne, and I spend about a week with him when he and Virginia return to Nebraska,” Fenner says. “He’s really a very likable guy.”

Teaching the supreme law of the land, which Fenner has done for 44 years at Creighton, can be fraught with pitfalls because even the Constitution inspires division. Should interpretation be guided by what our Founding Fathers meant, or should it be seen as a living document, changing with the spirit of the times? How does Fenner balance the two?

“I teach the cases without teaching a particular preference or point of view,” says Fenner, a past president of the Nebraska State Bar Association. “I occasionally have the students argue a case we’re reading, so they understand both sides.”

Then, in his quiet, thoughtful way, Fenner continues, “Personally, it seems to me the Founding Fathers were smart enough to know that they weren’t smart enough to know everything…they were writing rules that would need interpretation in the future.”

Fenner’s even-handed approach to the most divisive issues facing our judicial system not only wins the respect of colleagues, his students revere him as well.

“The Supreme Court isn’t easy to understand, but he’s able to break it down so you do understand it,” says Tyler Seals, a second-year law student. “He’s objective. He explains what the high court says, not his ideological beliefs.”

A belief in basic human dignity took root early in the professor’s childhood. The eldest of three sons born to a dairyman and his wife, Fenner grew up in St. Joseph, Missouri. His father, George, after whom Fenner is named, had a business membership to the local country club. Whenever the family went to the club for dinner, “My father would walk into the kitchen and talk to the wait staff and cooks. They were the only African Americans there.”

Fenner’s father still looms large, years after his death from Parkinson’s disease. “He was honest and quiet, a lot like those western stars from my childhood.”

It wasn’t Marshall Matt Dillon who inspired Fenner to go into law; it was Gregory Peck. To Kill A Mockingbird had a profound affect on him. After graduating from the University of Kansas in 1966, Fenner obtained his law degree from the University of Missouri-Kansas City. In fact, the Fenner boys hit the legal trifecta. His brother, U.S. District Court Judge Gary Fenner, presides in Kansas City, while the youngest sibling, Robert, recently retired as chief counsel for a federal agency in Washington, D.C.

Professor Fenner also worked in D.C. as a trial lawyer for the Justice Department, taking the job right after he and Anne married. Following the birth of their daughter, Hilary, now the general counsel for Patagonia outdoor clothing and equipment, the couple decided to move back to the Midwest, where “I’d be able to see my baby instead of commuting,” he says. His son, Ben, was born following the move to Omaha. Ben now works for a law firm in D.C. that represents Native Americans. 

The current vacancy on the Supreme Court following the death of Justice Antonin Scalia poses a real challenge, both politically and judicially, Fenner believes. With big cases looming that deal with abortion, freedom of speech, and affirmative action, the possibility of a “no decision” ruling could very well occur with the court split 4-4. “There’s a reason for nine justices,” Fenner says. “There can be no ties.”

The political vitriol regarding any nomination to succeed Justice Scalia dismays Fenner, but he also sees the unfolding confrontation as an inevitable part of history. “There will not be an Obama nominee who gets confirmed, who gets a hearing, or who even gets a handshake,” Fenner intones. “I don’t know who he could put forward to change that.”

But what fodder for discussion in a constitutional law class…