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.
In the end, both Obama and Clinton voted against the Military Commissions Act. And that's a good example of why it's hard to say whether and how Obama's and Clinton's different styles would translate into different legal policies. You can get to the same answer from the top down or from the bottom up.
It's also hard to say whether Clinton and Obama would choose judges who would see cases differently on the bench. Wisely, neither campaign is tossing around names for a hypothetical Supreme Court appointment—even though that is what legal observers most want to know. And both would inevitably reject the idea of a litmus test, while at the same time assuming that they won't pick a justice who will become the fifth vote for kicking over Roe v. Wade.
One of Obama's close advisers on legal matters, Cass Sunstein, is a proponent of judicial minimalism—the theory that judges should hew closely to the facts in the cases before them rather than issuing forth with bold and sweeping opinions. So I wondered if Obama might favor moderate judges over strongly liberal ones—a translation to the bench of his calls for unity and bipartisanship, in other words. But Minow and Tribe rejected that. And Sunstein himself has written that given the roaring conservative voices currently on the court and its shift to the right, minimalism isn't necessarily the best posture for the next justice. "I clerked for Justice Marshall, and while I don't agree with him on everything by any means, there is an argument that the court would benefit from someone with a vision of equality and liberty," Sunstein said. "That is clearly absent."
On Obama's staff, that absence is also keenly felt. How to fix that? "We'd want a nominee who would do what John Roberts did," one staff member said. "You go through the process and say 'Hey, I'll look at each case as it comes.' You have a moderate temperament. You're affable and everybody likes you. And then you get up there, and after a year and a half, you vote on the opposite side from John Roberts in every single case where that's warranted and it matters."
The judicial version of Barack Obama, perhaps?