Fainting Praise

Harvard Law marvels at the prospect of an Obama presidency

By Matthew P. Cavedon

As if shutting down Massachusetts Avenue and demanding the right to skip finals to pay homage to the new king of the world wasn’t enough, President-Elect Barack Obama’s supporters have co-opted the pages of the Harvard Law Bulletin. In a recent article entitled, “A Commander in Chief,” Seth Stern HLS ’01 prepares a litany of praise for the president-elect, culled from testimonials by Obama’s former classmates and potential Supreme Court appointees at HLS. Accolades and recollections range from the personal to the political to the downright excessive.

Consider this line: “‘Barack’s identity, his sense of self, was so settled,’ recalled Cassandra Butts ’91, who met him in line at the financial aid office, in an interview with PBS’s ‘Frontline.’ ‘He didn’t strike us in law school as someone who was searching for himself.’” 

Unfortunately for America, Barack’s identity was solidified as an unabashed judicial liberal. Obama was enrolled at a law school that produced such conservative luminaries as Chief Justice John Roberts and a robust Federalist Society devoted to educating law students about just how unequivocally clear the Founding Fathers were in establishing the judiciary as a body limited to interpreting the law.

Federalist Number 83 wrote to a concerned American public, “The judicial authority of the federal judicatures, is declared by the constitution to comprehend certain cases particularly specified. . . the specification would be nugatory if it did not exclude all ideas of more extensive authority.” Surely Obama encountered information about the constitutional role of the courts during his time here at Harvard. Obama, though, was evidently “settled” in his belief that empathy trumps restraint as a criterion for good judges.

Discarding constitutionalism in favor of populism on the campaign trail, he said: “We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old—and that’s the criterion by which I’ll be selecting my judges.”

Later in the Stern’s piece, there’s this gem: “Obama helped research a complicated article [HLS Professor Lawrence] Tribe wrote making connections between physics and constitutional law, as well as a book about abortion.”

Obama may be an expert in the relationship between quantum mechanics and the equal protection clause, but he does not see any problem with the Supreme Court forcing forty-five states to adopt laws permitting the killing of unborn children. Perhaps Tribe could have spent that time showing Obama that the Constitution does not authorize the courts to create broad-reaching “rights” that trample on both the legislative process and the natural right to life instead of dallying in the absurdly abstract.

Also in the article, Professor Martha Minow recalls: “He had a kind of eloquence and respect from his peers that was really quite remarkable.” When he spoke in her class on law and society, “Everyone became very attentive and very quiet.”

Half of that is certainly still true. People do get quite quiet when Obama opens his mouth. Sadly, no one seems very attentive beyond the incessant cries for change. While McCain was roasted in the presidential debate for refusing to pencil a meeting with the Spanish prime minister into his schedule four months into the future, Obama got away with suggesting that the Warren Court, which ended public racial segregation, guaranteed the First Amendment freedoms of students, guaranteed the right to public counsel for poor defendants in the courtroom, and required police officers to inform suspects of their right to remain silent, “wasn’t that radical” because it did not challenge the assumption that the Constitution “doesn’t say what the federal government or the state government must do on your behalf, and that hasn’t shifted.”

Given Obama’s talk of “spreading the wealth around” and finding judges with “the heart… to understand what it’s like to be poor,” would it have been unreasonable to expect some HLS scholars to kindly point out the actual duties of the courts? Or were those scholars simply not being as attentive as Professor Minow seems to remember?

But the eulogies continue: “He tended not to enter these debates and disputes but rather bring people together and forge compromises,” says Bradford Berenson ’91, who was among the relatively small number of conservatives on the Law Review staff.

“Change” certainly has come to Obama’s attitudes on political compromise and internal dialogue. Although presumably Samantha Power and the woman she described as a “monster,” future Secretary of State Hillary Clinton, may squabble over their differences, there are no constitutionalist counterbalances to the lefty advisers who will inform Obama’s legal policies. Berenson may have kind words for his former colleague, but he and other conservatives cannot reasonably expect a seat at the table in the new administration.

Finally, we have the finale: “It was I,” (HLS Professor Lawrence) Tribe wrote in a column for Forbes.com, “who owed thanks to them [the Obamas], thanks for the journey on which they had embarked to reclaim America for all who dare to hope.”

Now, almost two decades after their aforementioned work on the relationship between physics and constitutional law, Tribe and Obama could celebrate another major victory for legalistic irrationality together. With the rise of judicial liberalism to the White House, we can all dare to hope for an America in which the unique combination of empathy for every minority imaginable and the unswayable forces of the physical universe unite to guide our courts.

Call me nuts, but I’ll dare to hope for the day when our law schools actually teach law based on tradition and nature, rather than on the whims of the heart and the theories of the bookworms. Until that day, may we hope that the actual words in the Constitution take an Obama-appointed judge by surprise every now and then and keep the ambitions of liberal, activist courts in check. Otherwise, those pesky checks and balances in that un-radical constitution may not be “empathetic” enough for America’s new judiciary.