New Republic: Obama's Unfortunate Legal Strategy

Originally published on June 13, 2011 8:12 am

Justin Driver is a contributing editor for The New Republic.

On March 29, 1989, at a time when many of his fellow first-year law students were beginning to prepare for the spring semester's looming examinations, Barack Obama paid a visit to the office of eminent constitutional law professor Laurence Tribe. Obama had not dropped by to brush up for a test. In fact, he had yet even to enroll in an introductory constitutional law course, a gratification Harvard Law School denies its students until the second year of study. Obama's call was purely extracurricular: He wanted to discuss Tribe's academic writings. That a young man on the make would attempt to win a distinguished professor's favor is, of course, an utterly unremarkable event at Harvard. That institution is not principally known for attracting individuals lacking in either ambition or self-regard. Indeed, by the time Obama made his pilgrimage to Tribe's office, it is safe to say that he trod a well-worn path. But unlike many such efforts both before and after, Obama's gambit actually worked. As Tribe would recount many years later, so incisive was Obama's mind, so magnetic was his personality, so clear was his sense of purpose, that the visit moved the professor to scribble a brief note on his calendar marking the occasion: "Barack Obama, One L.!"

On the basis of that meeting, Tribe took Obama on as one of his research assistants. Tribe shielded his dazzling new hire from the mundane assignments that such positions typically require. "I didn't think of him as someone to send out on mechanical tasks of digging out all the cases," Tribe recalled. Instead, the two men would periodically get together, sometimes taking strolls along the Charles River, to exchange lofty ideas about the relationship between law and society. In the wake of Obama's rapid ascent in politics, Tribe allowed that he viewed "him much more as a colleague" than as a student and even went so far as to call Obama his "most amazing research assistant."

If Obama were selecting a mentor from the entire legal academy designed solely to infuriate the right, it would have been difficult to improve upon the selection of Tribe. In the late '80s, conservatives viewed Tribe as an unreconstructed and unprincipled lefty. Ronald Reagan's reelection in 1984 prompted Tribe to publish a book about the importance of judicial confirmations, God Save This Honorable Court, which many right-wingers thought served as the Democratic playbook for rejecting Robert Bork's Supreme Court bid in 1987. Following Bork's nomination, Tribe fomented opposition, making high-profile TV appearances to condemn the selection. He even assumed the role of Bork in the mock hearings held in the living room of Senate Judiciary Committee Chairman Joseph Biden. "Tribe," said the committee's chief counsel, "was a better Bork than Bork." During the actual hearings, moreover, Tribe offered nearly three hours of devastating testimony by portraying Bork's judicial views as intolerably extreme. Gary McDowell spoke for many conservatives when he referred to Tribe as "the writer and director, if not the producer, of Biden's passion play in the autumn of 1987."

Obama's relationship with Tribe must have tormented the conservative imagination as it contemplated the type of judges he would nominate once he became president. Edward Whelan, writing in The Weekly Standard in March 2008, sounded the alarm for what he feared was the coming judicial Armageddon. Whelan, who excelled in Tribe's constitutional law course at Harvard before going on to clerk for Justice Antonin Scalia, warned that Obama would aim to select judges bent on "the entrenchment of leftist policy preferences as constitutional rights."

Today, a little more than three years later, such statements sound histrionic. Anger about Obama's judicial appointments is now far more likely to come from the left than from the right. Many legal liberals have criticized Obama for squandering a golden opportunity to reshape the federal judiciary by failing to appoint judges who share their views. It is tempting to believe — as some observers have suggested — that Obama has thus far appointed overwhelmingly moderate judges simply because of Republicans' unparalleled obstructionism, or that blundering by Senate Democrats has prevented liberal nominees from getting confirmed, or that Obama has decided to spend his political capital on pushing important pieces of legislation rather than his preferred judges.

These explanations all doubtless carry some force. But well into Obama's presidency, it is necessary to entertain another, perhaps more compelling explanation: that, even in the absence of political constraints, Obama prefers to avoid placing liberal judges on the bench. To understand this possibility, it is necessary to understand that, contrary to popular perception, the Democratic Party is not united behind a single notion of the judicial role. Instead, Democrats are sharply divided by dueling conceptions of what courts can and should achieve in a democracy. Intriguingly, Obama has forged formative intellectual relationships with the two leading law professors who espouse these competing visions. Tribe may have been the first prominent legal scholar to inform Obama's view of courts — but he certainly was not the last.

Tribe began his career at Harvard in 1968, only months before Earl Warren would begin his final term as chief justice of the United States. Where an earlier generation of liberal legal thinkers had expressed deep skepticism about the legitimacy of reform that emanated from the judiciary rather than the executive or the legislature, Tribe evinced no such doubts about the Warren Court's achievements. As Earl Warren gave way to Warren Burger, the pivotal questions for Tribe involved, first, how to protect those achievements and, second, how to build upon them.

The preface to American Constitutional Law — the 1,200-page treatise that secured Tribe's high status among legal academics, which he published just ten years into his career — unabashedly announced that liberal hand-wringing about the niceties of judicial restraint must end. In an intellectual move that would become a staple, Tribe suggested that the term "judicial restraint" lacked conceptual coherence: "Judicial authority to determine when to defer to others in constitutional matters is a procedural form of substantive power; judicial restraint is but another form of judicial activism." The judicial duty, in Tribe's estimation, compelled courts to advance contemporary notions of justice. "I reject the assumptions characteristic of Justices like Felix Frankfurter and scholars like Alexander Bickel," Tribe wrote. "[T]he highest mission of the Supreme Court, in my view, is not to conserve judicial credibility, but in the Constitution's own phrase, 'to form a more perfect Union,' between right and rights within that charter's necessarily evolutionary design."

Although Tribe's preface made clear that he understood courts were not all-powerful institutions, he nevertheless insisted that judicial actors were uniquely positioned to "raise distinctive voices of principle." Tribe revisited this thread in God Save This Honorable Court, arguing that the federal judiciary plays an irreplaceable role in countering majoritarian political preferences. "Even when the Congress and the President can be counted upon to defend most of us from the infringement of fundamental liberties, because the political majorities to which those departments of government answer demand such protection, the Supreme Court often stands alone as the guardian of minority groups," Tribe contended. "The democratic political process, by its very nature, leaves political minorities vulnerable to the will of the majority."

These same central themes continued to animate Tribe's scholarship when Obama worked with him. Obama assisted Tribe on a 1989 article in the Harvard Law Review that advanced a sharp critique of judicial restraint. He also assisted the professor on a 1990 book called Abortion: The Clash of Absolutes. In the book, Tribe attempted to locate what he portrayed as previously overlooked common ground regarding one of society's most divisive issues. But he dropped all pretense of searching for commonality when it came to delineating the judiciary's proper role. "The whole point of an independent judiciary is to be 'antidemocratic,'" Tribe wrote, "to preserve from transient majorities those human rights and other principles to which our legal and political system is committed."

Obama's legal education did not end with his three years in Cambridge. Following Harvard, he took a post at the University of Chicago Law School. From that perch, Obama wrote the book that would become Dreams from My Father, taught constitutional law courses, and launched his political career. Obama spent twelve years in all at Chicago, eventually attaining the rank of senior lecturer.

The dominant view of Obama's time at Chicago holds that he passed through its halls without leaving much of a mark on the institution — and with the institution, in turn, leaving even less of an impression on him. "I don't think anything that went on in these chambers affected him," Richard Epstein, a libertarian colleague of Obama's at Chicago, told The New York Times in July 2008. "He was a successful teacher and an absentee tenant on the other issues." Admittedly, Obama eschewed the faculty's renowned roundtable discussions and appears generally to have avoided sustained intellectual engagement with the school's numerous libertarians and conservatives. But that does not mean Obama's time in Hyde Park did not influence his legal views in significant ways. Indeed, assessing how Obama approaches the law as president requires comprehending the legal views of his close friend from the University of Chicago: Cass Sunstein.

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