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Obama the Lawyer PresidentHow would he choose judges?

By Emily Bazelon
Posted Thursday, Feb. 7, 2008, at 6:12 PM ET

(Continued from page 1)

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?

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Emily Bazelon is a Slate senior editor.
Photograph of Barack Obama by Sean Gardner/Getty Images.
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