Barack Obama: The Present Is Prologue

[question everything]

OCTOBER 7, 2008

Barack Obama: The Present Is Prologue
By JESS BRAVIN
The Wall St. Journal


Soon after launching his presidential campaign, Sen. Barack Obama gave a half dozen top legal thinkers a homework assignment: Write a speech outlining how his administration would balance liberty and security. He didn't need the help. The lawyers and scholars spent weeks on a draft. Sen. Obama joined them for a May 2007 meeting, apologized for not studying their draft -- and launched his own discourse on constitutional history, from the Alien and Sedition Acts of 1798 to post-9/11 policy.

On legal matters, including Supreme Court appointments, an Obama administration would likely be shaped by its leader's strong convictions on constitutional law. As in other areas, Sen. Obama's jurisprudence points to a change from the "strict constructionist" philosophy advocated by Republican presidential contenders from Richard Nixon to John McCain. Precedents, text and other legal tools can provide a just outcome in "95% of the cases," Sen. Obama said before voting against confirming chief-justice nominee John Roberts. But for the "truly difficult" cases that remain, the "last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

(snip)

"I appreciate the temptation on the part of Justice Scalia...to assume" that if the 18th century text is followed "without question or deviation...all good will flow," Sen. Obama writes in his book, "The Audacity of Hope." "Ultimately, though, I have to side with Justice Breyer's view of the Constitution -- that it is not a static but rather a living document." As a result, Sen. Obama's advisers say, he may look beyond the courts for candidates to lawyers with practical, political or scholarly experience. Names mentioned in Democratic circles include federal appeals judges Merrick Garland and Kim Wardlaw, Gov. Deval Patrick of Massachusetts, and Profs. Cass Sunstein of Harvard, Kathleen Sullivan of Stanford and Harold Hongju Koh, dean of Yale Law School... Former Bush Solicitor General Theodore Olson, an adviser to Sen. McCain, says the Democrat "is looking for someone who would make judicial decisions based upon emotions and sympathy and picking the underdog, rather than applying the law."

Sen. Obama "has noted that only one of the justices who sat on Brown v. Board of Education had judicial experience before getting to the court," says one of Sen. Obama's Harvard professors, Laurence Tribe, describing the unanimous 1954 decision that ruled segregation in public schools unconstitutional, despite the fact that the Framers practiced racial discrimination themselves. The Democratic nominee has cited the author of the Brown opinion -- the late Chief Justice Earl Warren -- for bringing broad experience to the high court without ever having been a judge. Mr. Warren had been a prosecutor and governor before becoming chief justice. Sen. Obama wants judges who won't "think, in 1954, of 'separate but equal' in a very formalistic way," but rather recognize that in practice segregation is "inherently unequal," as Chief Justice Warren wrote, says Danielle Gray, an Obama campaign aide and former Breyer law clerk.

(snip)

Ms. Gray, who attended the May 2007 meeting, says a case handed down days later, Ledbetter v. Goodyear, exemplified Sen. Obama's concerns. Justice Samuel Alito's majority opinion threw out a female employee's claim that she was paid less than men performing the same job because she hadn't complained within the law's 180-day time limit which the majority said should run from her first unfair paycheck. She discovered the disparity years later. Sen. Obama agreed with Justice Ruth Bader Ginsburg, who, writing for the four liberal dissenters, argued that Justice Alito ignored "the realities of the workplace," and that the clock should run from the last unfair paycheck.

(snip)

http://online.wsj.com/article/SB122333844642409819.html?mod=todays_us_page_one (subscription)