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