April 11, 2010

Obama's Supreme Court choice

It's natural to assume that Barack Obama, former president of the Harvard Law Review and lecturer at the U. of Chicago Law School, must be obsessing over his opportunity to make another Supreme Court nomination.

Yet, he’s not really as interested in the courts as everybody expects him to be. According to David Remnick’s new biography of him, The Bridge, when he was president of the Harvard Law Review, he considered the Law Review, not unreasonably, kind of a joke -- why are students editing professors? And, he never published a law article in all the years he was employed by the U. of Chicago Law School.

To Obama, the judicial branch lacks the capabilities to administer the kind of things he wants done, so he doesn’t invest much political capital there.

As Obama explained in a radio talk in 2001, the judicial branch isn’t well organized to oversee wealth redistribution. To accomplish that requires executive and legislative power.

From Obama's 2001 radio transcript:
But the supreme court never ventured into the issues of redistribution of wealth and sort of basic issues of political and economic justice in this society and to that extent as radical as people try to characterize the warren court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the founding fathers in the constitution, at least as it has been interpreted and the warren court interpreted it generally in the same way that the constitution is a document of negative liberties-- says what the states can’t do to you, says what the federal gov’t can’t do to you but it doesn’t say what the federal government or state government must do on your behalf, and that hasn’t shifted; and I think one of the tragedies of the civil rights movement was that the civil rights movement became so court-focused, I think there was a tendency to lose track of the political and organizing activities on the ground that are able to bring about the coalitions of power through which you bring about redistributive change and in some ways we still suffer from that.” …

This interview shows Obama the law professor and politician saying that to bring redistribution of wealth, it’s less effective to be, say, Chief Justice of the Supreme Court than it is to be, say, President of the United States.

Obama’s statement seems perfectly plausible: he’s spent years studying and teaching Constitutional law, but he, personally, decided that his ambitions required elective rather than judicial power.

"You know, maybe I am showing my bias here as a legislator as well as a law professor, but you know I am not optimistic about bringing about major redistributive change through the courts. You know, the institution just isn't structured that way. Just look at very rare examples where during the desegregation era the court was willing to, for example, order, you know, changes that cost money to local school district and the court was very uncomfortable with it."

This is presumably a reference to Kansas City, where a judge ordered a billion dollars extra spending on heavily black schools. Not surprisingly, it didn’t do much for test scores.

"It was hard to manage. It was hard to figure out. You start getting into all sorts of separation of powers issues. You know, in terms of the court monitoring or engaging in a process that is essentially is administrative and take a lot of time, the court is not very good at it and politically it is hard to legitimize opinions from the court in that regard. So I think that -- although you can craft theoretical justifications for it legally, you know I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts -- I think that as a practical matter that our institutions are just poorly equipped to do it. …"

So, Obama is saying that he is for “bringing about economic change through the courts” in theory, in practice the courts don’t have the administrative staff and power to do it. Instead, Obama’s goal of “redistribution of wealth” should be achieved through the legislative and executive branches.
"Typically, the court can be more or less generous in interpreting actions and initiatives taken, but in terms of funding of abortions and Medicare and Medicaid, the court it not initiating those funding streams. Essentially, what the court is saying is at some point this is a legitimate prohibition or this is not, and I think those are very important battles that need to be fought and I think they have a redistributive aspect to them."

My published articles are archived at iSteve.com -- Steve Sailer

24 comments:

Anonymous said...

"Yet, her failures in her abortive law career, such as not passing the bar exam at her first chance after graduating from mighty Harvard Law School, are a classic example of the failures of affirmative action in general."

A lot of people don't pass the bar on their first try. For example, Hilary Clinton.

Anonymous said...

Sorry Steve, wrong thread. Feel free to delete both the first comment and this one.

Vernunft said...

Yeah, even the liberals in the judiciary are more concerned with process and complicated legal issues than policy. Obama's a man of action; endlessly splitting constitutional hairs isn't his thing.

Thrasymachus said...

Getting a judge confirmed is a legislative matter, which he does not have the skill for, even if he was interested. The judiciary provides the justification for what liberals do, but they don't fundamentally need it; most of the New Deal was done without the courts liking it, and even if some parts were overruled the thing stood as a whole. And, if liberals don't like some law or ruling, they simply ignore it. We may have passed the era in which the courts are important for asserting the left's agenda; the 50's through the 70's were the golden age of this but by the end of this time they had almost everything they wanted. The Bakke decision may have been the last significant court action; it limited but did not overrule affirmative action.

If Steve is right Obama will let the judiciary committee come up with someone they think they can get through, but I can't believe he won't provide some important guidance. Another black? Another Latino? An Asian? A homosexual?

Svigor said...

"Negative rights." Uhm, not. The Constitution grants a few powers, then reserves everything else to the States. Pretty explicitly a small circle of positive rights of government. The BoR is just something they tacked on because some of the Founders saw people like Obama coming.

Captain Jack Aubrey said...

It's a scandal all the things we didn't know about Obama before electing him - all of the things we might have known, but which the media didn't bother to report.

I think his quote about the Kansas City case points to the particularities of his obsession with redistribution: it's not just about redistribution, per se, but about redistribution to blacks and to leftist causes.

Michael T. Golden said...

"To Obama, the judicial branch lacks the capabilities to administer the kind of things he wants done, so he doesn’t invest much political capital there."

Not that Obama won't appoint a liberal Justice who will at every opportunity vote to enact his liberal ideology into law, regardless of what the Constitution says.

He will, but he'll save political capital by doing so stealthily, appointing a true believer without too much of a liberal paper trail. Due to his many personal contacts in academia and the judiciary, Obama must know many potential nominees who fit that bill.

Chris said...

He referred to himself as a professor? Wasn't he a part-time, non-tenure-track lecturer?

robert61 said...

Ta-ta, dear, just hopping off to the warren court!

Anonymous said...

"He referred to himself as a professor? Wasn't he a part-time, non-tenure-track lecturer?"

At U of C he had the same job title as Richard Posner, the most cited legal scholar of all time. Posner could be called professor, but he has a better title. Obama has one-upped him there, though.

Barry was not "tenure track" by choice. It's not like he was some adjunct scrapping for a middle tier job in academia. He was a senior lecturer at Chicago in his spare time. Not bad.

Captain Jack Aubrey said...

Ta-ta, dear, just hopping off to the warren court!

Obama isn't so much moving the Court to the left as he is extending the lifespan of the Court's left for another 20-40 years. Souter and Stevens were two of the Court's most liberal members.

Should any other members decide to retire on Obama's watch - Ginsburg is 77, Breyer is 71 - they will almost certainly be facing a far more conservative senate, perhaps one even under GOP control. Of course some of those senators are far too collegial to be much use stopping a leftist jurist.

Anyone who thinks the situation would've been better under a McCain presidency needs to remember that a) McCain isn't really a conservative, and sure as hell wouldn't nominate one; b) the GOP would not pick up seats in a McCain mid-term election, but instead would be facing a 2011 senate with 63+ Democrats, the strongest majority in decades.

Sydney Lawyer said...

I think one thing is certain, if Obama is appointing the candidate, they will be a liberal. It is also true that the Bar Exam has a very high initial failure rate. But I think that the bench could benefit from some more liberal thinkers. It has been stacked with conservatives during the Bush period and now it is time to restore the balance.

Henry Canaday said...

Isn’t it reassuring that lawyers can “craft theoretical justifications” to prompt court reallocation of income, but this approach has proven “unworkable?” Actually courts did a fair amount of income reallocation in their salad days of the late 1960s and 1970s, and still do some today. The courts can set redistributive conditions for the spending of public money that must be met if public programs are not to be ended. For example, the courts forbid distinctions in welfare payments based on years of residency or the legitimacy of children that expanded welfare rolls. The courts have set conditions for prison, requiring higher spending on prisons and prison employees, if prison populations are to be maintained. The courts have set required conditions for education, forcing higher expenditures on educational bureaucracies, that must be met if pubic schools are to remain open. So in general, the courts have forced reallocation of income toward both welfare and public employee populations.

But Obama was born too late to get in on the heady expansion of these uses of court power to redistribute income. By the time he came along, the game had largely played out, not least because these programs were either not producing expected results or were creating catastrophes too obvious for people to ignore.

Chris said...

At U of C he had the same job title as Richard Posner, the most cited legal scholar of all time.

By contrast, Obama doesn't even have one publication that somemone might cite, besides his autobiographies. Nor was he what he said he was, a professor.

Anonymous said...

Will he go out of his way to appoint a Protestant? Stevens was the last one. All the rest are Catholics and Jews.

Harry Baldwin said...

Thrasymachus said...Another black? Another Latino? An Asian? A homosexual?

Shouldn't that be "Another homosexual?"

silly girl said...

The real power of the judiciary to execute Obama's ideals is their power to deny justice to those wronged by the legislation he champions.

Anonymous said...

"He will, but he'll save political capital by doing so stealthily, appointing a true believer without too much of a liberal paper trail."


The paper trail doesn't matter because it will not be reported. It will be ignored.

Captain Jack Aubrey said...

Abigail Thersntrom asks the question that none of the other mainstream blogs has seriously asked.

Orin Kerr did not.

On the other hand, Eugene Volokh reminds us that disparate treatement only matters with regards to a group's proportion of the qualified pool of applicants. Isn't the typical leftie argument, though, that the pool is contaminated because society is biased against certain groups?

On the Volokh link, see the great comment by Stephen Lathrop on 4/9 at 4:50pm

Mr Apostrophe said...

It just proves how stupid Barry is that he would discount the power of the Supreme Court, which body will probably find Barrycare unconstitutional

Michael T. Golden said...

Captain Jack Aubrey said...
Obama isn't so much moving the Court to the left as he is extending the lifespan of the Court's left for another 20-40 years. Souter and Stevens were two of the Court's most liberal members.


That's true, Captain, but I'm afraid you and Steve (and 2001-era Obama) are greatly understating the significance of the coming changes on the Court. By replacing Stevens, Obama preserves the 4-member liberal minority on the Court, and keeps it one heartbeat away from a majority. Scalia and Kennedy are both 70 years old. If Obama is able to replace one of them with a liberal, the Court will have its first solid liberal majority since 1969.

5 liberal Justices is all it takes for liberal ideology to be enacted into law. The last time we had a solid liberal majority, in the 60's, we got (along with a few good results, to be sure) a blizzard of liberal jurisprudence the effects of which we still powerfully feel, and suffer from, to this day. (I will provide examples if anyone doubts this.) The liberal Justices have certainly achieved victories even in recent decades, but to do so they had to convince at least one moderate or center-right Justice -- like Kennedy, O'Connor, Powell, or Stewart -- to join with them. If Obama gets to appoint the 5th liberal, the liberal arguments don't even need to be remotely credible-sounding before they can be enacted into law.

Maybe, (and it is a maybe, I'm afraid), the liberals will defer to public opinion and refrain from large-scale wealth distribution. Even so, on innumerable issues less visible to the public, they will declare Obama policies the law long after he has left office. I can only begin to imagine what exactly that will consist of, but certainly one effect will be that disparate impact suits will thrive from sea to shining sea. True liberal power on the Supreme Court is a beast that has slept for 40 years, and there is no telling how much more powerful it will be when it wakes up again.

If I'm being a little over-dramatic here then I'm sure other commenters will correct me, but my fear is that I'm not.

Jim O said...

"Will he go out of his way to appoint a Protestant? "

Good point. Anybody out there old enough to remember the "Jewish seat" on the court? Cardozo to Frankfurter to Goldberg to Fortas. Now, we may not have a "Protestant seat" anymore.

Captain Jack Aubrey said...

If I'm being a little over-dramatic here then I'm sure other commenters will correct me, but my fear is that I'm not. - Michael T Golden

No, you're right, and I considered that. But what are the odds that he'll be able to replace a conservative and a liberal member, such as Scalia AND Ginsburg?

Pretty low, I'd think, and he'd have to do both to guarantee a liberal majority, because the growing possibility is that he will either be a single term president or a two-termer with a Republican senate. Even if he winds up getting to replace a conservative, his successor will almost certainly get to replace Ginsburg, who'll probably the next justice to retire.

B Lode said...

Will he go out of his way to appoint a Protestant?

"Good point. Anybody out there old enough to remember the "Jewish seat" on the court?"

I wonder if the Reformational churches can collectively be described as a "propositional religion", i.e., that they don't have any fixed members, just people who feel Reformational that day. Just because you're "Once saved always saved" doesn't mean you necessarily feel any obligation to stick up for your coreligionists. This may be part of why the Reformationals have surrendered so much - their liberal members are hardly Christian any more and their conservative members are hardly political, except to fight abortion.