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Obama Takes His Own Law ExamsHow did he do?

By Emily BazelonPosted Wednesday, July 30, 2008, at 7:02 PM ET

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Emily Bazelon predicted how Obama would choose judges given his legal background and tried to find out his LSAT score. Doug Kendall and Dahlia Lithwick considered Obama's views on the Constitution. Jack Shafer argued that the press doesn't faze Obama.

More revealing, however, are passages in Obama's 1996 discussion about whether a lesbian couple could successfully challenge the constitutionality of his made-up "Preservation of Family Values Act," which would block the women from conceiving via in vitro fertilization. Obama writes of a "troubling" issue: "the Court's tendency, in cases since Roe, to embrace notions of 'tradition' as a means of curtailing the potential expansiveness of rights recognized under the Due Process Clause." Then he starts duking it out with Justice Antonin Scalia. As Chapman University law professor John Eastman points out in the NYT discussion, Obama calls Scalia's approach to defining the scope of substantive due process rights "cramped." And then he parries. Scalia would argue, he thinks, that the right to procreate applies only in the context of a "monogamous, heterosexual marriage." But how do you square that with the court's abortion jurisprudence and with Eiesenstadt v. Baird, the 1972 case that gave unmarried couples the right to have contraception? Scalia isn't just cramped; when Obama reads the justice against his colleagues, he also finds him to be wrong.

This mano a mano repeats in Obama's answer to a 1997 exam question about whether a state ban on cloning violates the constitutional rights of parents who want to clone their daughter, who is in a vegetative state, after turning off her life support. Obama channels Scalia here by pointing out that the justice might argue that cloning isn't even "procreation," according to the dictionary definition of that term. He goes on, "In the absence of any deeply rooted tradition, Scalia would argue," the Supreme Court should mind its own business and let the state ban stand. But whether a majority of the court would "embrace such a cramped reading"—that word of distaste again—Obama says, "is not entirely clear." In some ways, the argument for upholding the cloning law is stronger than the one for upholding the fertility-treatment ban in the earlier exam, because the science behind cloning is so much less certain than for in vitro and because there's no anti-gay impulse at issue. But Obama doesn't give Scalia an inch. The justice gets his due, and then he gets stuffed into the box for judges who talk loudly but don't carry a majority.

And then there's this flourish in Obama's model answer to his 1996 question: He picks up on a suggestion from some of his students "that courts do not use the tools of Equal Protection or substantive Due Process doctrine … to guide their analysis, but rather, use these labels to justify, after the fact, what are inescapably decisions based on policy calculation, ethical and political considerations, and the idiosyncratic values of particular justices." Here's another similar sentiment, "What is safe to say is that the views of particular justices on the desirability of rearing in [sic] children in homosexual households would play a big part in the decision."

Whoa. So here are the roots of Obama's statements that he will pick judges who have "heart" and "empathy" because he thinks that in a small but key set of cases, a judge must fall back on "his or her own perspectives, his ethics, his or her moral bearings." Obama is not a man, or a lawyer, who believes that at least in these hellishly difficult matters of constitutional interpretation, judges are truly guided by legal precedent, or abstract reasoning, or anything other than their gut and the outcome they prefer. This is not the way most politicians talk about the court. Certainly not John McCain. And it's not clear that Obama's candor about the role of the judicial gut is a political winner. "These are tricky questions," Obama confides to his law students at another point in his exam answers. No kidding.