Friday, September 30, 2005

Apology to Obama

Yesterday I wrote out of bitter disappointment that Illinois Senator Barack Obama, one of the politicians I have most admired (Lindsey Graham being the other), had voted against John Roberts' confirmation as Chief Justice of the Supreme Court. I thought that Senator Obama, who had shown himself to be temperate but never mushy, capable of force and clarity while honoring complexity, had stooped to "playing to the base" and voting based on career calculation as a Democrat.

I was way wrong.

I was unaware that Senator Obama had already published a statement, one week before the full Senate confirmation vote, detailing his struggle to decide how to vote and his ultimate decision to vote No despite being "sorely tempted" in the other direction. (Props to Meg at CelebrateVida for clueing me in.) The statement is vintage Obama. It is direct, intelligent, honorable, and transparent, and it does not set off my spin detector. I now respect his decision and regret that I so mischaracterized it. To the extent that there is a Democratic "pack," he's not running with it. He's the cat who walks by himself. To set the record straight, I'm just going to quote a whole lot of his statement. But read the whole thing.

I have not only argued cases before appellate courts but for 10 years was a member of the University of Chicago Law School faculty and taught courses in constitutional law. Part of the culture of the University of Chicago Law School faculty is to maintain a sense of collegiality between those people who hold different views. What engenders respect is not the particular outcome that a legal scholar arrives at but, rather, the intellectual rigor and honesty with which he or she arrives at a decision.

Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his resume, his conduct during the hearings, and a conversation I had with him yesterday afternoon.

There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.

I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak.

I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.

I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting.

The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and that Judge Roberts will show himself to not only be an outstanding legal thinker but also someone who upholds the Court's historic role as a check on the majoritarian impulses of the executive branch and the legislative branch. I hope that he will recognize who the weak are and who the strong are in our society. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes. . . . [Emphases added]

Senator Obama then goes on to talk about partisan rancor, ideological dumbing-down, and its toxic effect on the confirmation process:

I was deeply disturbed by some statements that were made by largely Democratic advocacy groups when ranking member Senator Leahy announced that he would support Judge Roberts. Although the scales have tipped in a different direction for me, I am deeply admiring of the work and the thought that Senator Leahy has put into making his decision. The knee-jerk unbending and what I consider to be unfair attacks on Senator Leahy's motives were unjustified. Unfortunately, both parties have fallen victim to this kind of pressure. . . .

The issues facing the Court are rarely black and white, and all advocacy groups who have a legitimate and profound interest in the decisions that are made by the Court should try to make certain that their advocacy reflects that complexity. These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every Senator in this Chamber from making sure that they are voting on the basis of their conscience.

Read it all here.

Shit. Now I'm back to worrying that he's going to get assassinated.


At 3:03 AM, Blogger Sean said...

wow, you are so consistent. LOL.
give me a break. what did you expect? a press release saying Roberts is evil.
please. he says roberts has the experience, temperment and intelligence to sit on the highest court. Hello!
that is it, thats all that is needed. The senate confirms.
of course, this is a poltical decision for Obama. you people need to stop the mythologizing of Obama.(every impules he has is liberal, not moderate. he is smart enough to hide it behind nice words)
even his comments about 95% of cases that justices would agree on- is blatantly false! In other words, it was a written snow job. a well written, and has a nice tone (unlike others) but still tha same partisan stuff.

At 7:02 AM, Blogger Peter said...

This comment has been removed by the author.

At 7:38 AM, Blogger boz said...

If you liked that, you'll love the message to the Daily Kos crowd that Obama put on his blog yesterday.

At 12:52 PM, Blogger Tom Strong said...

Boz --

Nice link. (And nice blog, by the way).

It's interesting how Obama's rhetoric is being decried as empty by his detractors. Perhaps it is - I certainly can't read deeply enough to know what his ultimate motivations are. But I also don't believe that rhetoric can be truly empty most of the time.

This is not to suggest that people can't say one thing and do another - of course they can, and to do so is usually deeply immoral. But rhetoric is itself a tool that has certain effects, regardless of the other actions a politician might take.

With Obama, it's clear that his mastery of rhetoric is a contribution to moderate politics in and of itself. He has worked out a new manner of speaking and writing that is at once extremely flexible, yet speaks to people's clearest moral impulses at the same time. Even if he turns out to be a total zero politically, a flimsy flip-flopper who stands for nothing, the rhetorical approach
he has created has the potential to dramatically change our political system.

At 1:39 PM, Blogger boz said...

I'll agree that his rhetoric is a contribution to moderate politics. What Obama brings to the table is the willingness to accept many of his opponents' arguments as part of legitimate debate rather than demonizing them as "wrong".

In terms of his votes, Obama will end up being fairly liberal. But in some ways I'm hoping he will be the first of several politicians to transcend the "left-center-right" spectrum that too many politicians and pundits seem stuck in.

At 7:11 PM, Blogger amba said...

Repeating what I said someplace else, it's the nature of intense partisanship that we will say people with the "wrong" views must necessarily have the "wrong" motives -- it's got to be power, money, oil, fame -- while people on "our side" are at once deeply principled and thrillingly pragmatic. I'm really sick to death of that. I don't think Bush invaded Iraq for oil only, and I don't think Obama wrote that only out of cloaked liberal ambition.

At 9:40 AM, Blogger Jerry said...

Tom said, the rhetorical approach
he has created has the potential to dramatically change our political system.

I couldn't agree more. I've been meaning to contribute something to the long post from about two weeks ago, concerning what centrism is, but I'll probably never get around to it.

But I think the vast part of it is the willingess to say, "My opponent is right on a, b, and c, and I respect that. But I have significant disagreements with him on x, y, and z, and here is why. More importantly, here is how I think we can find compromise or common ground."

The usual formulation is, "Real Americans believe the same things I believe, and my opponent is evil, evil, pure evil."

IMHO, it is not a middle-of-the-road political view that is the key element of centrism. Rather, it is a willingness to work with the people you disagree with to produce an outcome acceptable to everyone. I think Obama and McCain, even with their partisan views on many issues, are models of centrism.

At 2:11 PM, Blogger Paramendra Bhagat said...

Obama Votes Nay


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