Barack Obama: Supreme Court Justice?
Washington Post 2-19-10These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.
Jeffrey Rosen, Law Professor, in an OpEd piece forThe Washington Post has raised an interesting question: Will Barack Obama become one of the US Supreme Court Justices?
Are the qualities for which he was heavily criticized by Sarah Palin - his detachment, his cerebrality, his deference to Congress, his "law professor" persona - those which would stand him in good stead in this role?
Is he not, Rosen asks, thereby ideally suited to lead the liberal wing of the court? Is his clumsiness in the Oval Office part and parcel of his brilliance and that which would be perfect for countering the conservative challenges to progressivism - some of the most extreme since the New Deal era?
Says Rosen: Temperament, sensibility, education, and life experience fuse within Obama and make him ideally positioned to be unconstrained by separation of powers.
It would be unusual, but not difficult, continues Rosen, for Obama to get himself on the Supreme Court. " He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won't run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy."
The greatest liberal justice of the 20th century - Brandeis - seems to call to Obama to take on his mantle. Obama in the court might transcend the Obama of the presidency. His credentials for the position are perfect: Moreover, his judicious aloofness was born for such a position. Philosophical jurisprudence and liberal ideology have been stamped within his being.
He was steeped in the philosophy also of Reinhold Niebuhr: This ideology would give a sort of steely, sharp edged vision from the Supreme Court bench.
In terms of judicial philosophy, too, Obama is well suited to take on the pro-corporate activism of the conservative justices -- on display in the recent Citizens United v. Federal Election Commission decision, which gutted campaign finance laws and which, according to recent polls, strong national majorities oppose.
In his 2006 book, "The Audacity of Hope," Obama wrote that throughout American history, constitutional values have generally been defined by ground-up political activism rather than imposed from above by judges. From the late 19th century to the mid-20th century, it was liberals in the political arena, not conservatives, who defended judicial restraint in the face of activist conservative justices who tried to strike down progressive regulations, from the income tax to the minimum wage. But Obama questioned whether, more recently, liberals had become too ready to let courts fight their battles for them. "I wondered," he wrote, "if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy."
Obama's commitment to judicial restraint is at odds with the activism displayed by the Supreme Court in its Citizens United decision, which called into question not only the McCain-Feingold campaign finance act but also decades of other federal laws and Supreme Court precedents restricting the free speech of corporations. In defending the ruling, Chief Justice Roberts said: "We cannot embrace a narrow ground of decision simply because it is narrow; it must also be right." This overconfidence in knowledge of the right answer is something Obama didn't display while teaching in Chicago. His students have attested to his mastery in neutrally presenting opposing points of view without revealing his own.