How would Obama choose judges?

The law, lawyers, and the court.
Feb. 7 2008 6:12 PM

Obama the Lawyer President

How would he choose judges?

Barack Obama. Click image to expand.
Barack Obama

If Barack Obama gets to be president, he's not going to outsource the law. As a former constitutional law professor, he hasn't got it in him to wave off this aspect of his potential administration. Obama knows too much for that. And he would care too much about striking the balance he wants on liberty and security, continuing to straighten out the Justice Department, and nominating his idea of good judges to delegate these activities and check back in only to give his blessing.

The yawning gulf here is between Obama and President Bush, who has clearly relied on Dick Cheney and others to shape his administration's approach to law and the judiciary (with far happier results, from his point of view, than Bush's big moment of intercession, when he chose Harriet Miers for the Supreme Court himself). But Obama's approach to legal policy and the DoJ and judges also may distinguish him from John McCain, who is not a lawyer—and from Hillary Clinton, though for different reasons.


Obama's immersion makes the law professors in his inner circle giddy. In addition to the sweet relief of a candidate who has promised not to keep marching to the drummer of executive power, and who wants to protect rather than diminish the right to privacy, the Obama lawyer team loves their man because he goes toe to toe with them. As Harvard law professor Martha Minow puts it, "He has at his fingertips the whole historical context of the moments in which our Constitution has been stretched, or has been in jeopardy, and when presidents have tried to bring it back. This isn't an afterthought for him: 'Oh, I'll go consult my lawyers.' "

For Minow, this was driven home by an exercise in speechwriting. She and fellow Harvard law professor Laurence Tribe, Georgetown law professor Neal Katyal, and University of Chicago law professor Cass Sunstein were supposed to work up a draft of a big speech for Obama about law and democracy. The four of them—titans, all—labored over multiple drafts, which they sent back and forth among themselves. Then they and other law professors arrived at Obama's office. After apologizing because he hadn't reviewed their version, he reeled off four points he thought the speech should make. And Minow says they were better than what her quartet had come up with—not just more politically resonant but better conceived. Obama still hasn't given a big democracy and law speech, but he has made his points—about opposing rendition of detainees to other countries, for example—in a variety of settings.

Hillary Clinton, too, is an accomplished lawyer with precise and honed views of the Constitution. It's hard to imagine she wouldn't be in the thick of the big and medium-sized decisions, either. But she's not been as forthcoming about this aspect of her plans for governing. Clinton's campaign didn't return my repeated phone calls and e-mails, either this week or the last time I wrote on the topic. In a published Q & A with the Boston Globe's Charlie Savage, both Clinton and Obama did offer plenty of specifics—about how the Bush administration has overreached on executive power, among other things. But only Obama named the legal thinkers he's consulting.

Katyal, who has been called in by both senators, described what sounded like a typical establishment vs. insurgency split between the two. Clinton "comes at it a bit more from a top-down perspective," he said, "as in, 'elites are likely to know what the right answer is.' She'll likely talk to the Nobel Prize winner, but maybe not be as likely to talk to the people on the ground affected by the policies." Obama, on the other hand, talked to Katyal for two hours when the Military Commissions Act, which sought to limit the Guantanamo detainees' right to bring appeals in federal court, was being debated in the Senate. He wanted to know how the proposed law would play out directly for the detainees, and Katyal was representing Salim Ahmed Hamdan before the Supreme Court.



Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.