Randy Barnett • April 5, 2012 12:46 am
As a result of the President’s statements on judicial review on Monday and Tuesday, some have wondered how sophisticated a law professor he was. With this in mind, I thought I would repost a comment I contributed to the New York Times blog, The Caucus, which solicited my and other law professors’ reactions to copies it had obtained of then-candidate Obama’s exams, model exam answers, and seminar assignments. My assessment of these materials concurred with David’s post below. Here is what I wrote then:
While the course materials themselves do not tell us very much about Senator Obama, the candidate, what they do tell us about Obama, the teacher, is generally favorable. I was particularly intrigued by his 1994 syllabus on “Racism and the Law.” The materials assigned were balanced, including several readings by Frederick Douglass, who many modern race theorists have come to disparage as insufficiently radical (as Obama would know), along with an exchange between Harvard law professor Randall Kennedy on the one hand and Charles Cooper (who is now on Senator McCain’s advisory committee) and Texas law professor Lino Graglia on the other. All three essays appeared in the conservative/libertarian Harvard Journal of Law and Public Policy as part of a 1991 symposium on “The Future of Civil Rights Law” and were initially presented at the Federalist Society’s 1990 National Student Symposium held at Stanford. The articles were published during Obama’s third year as a law student so it is not surprising that he would be aware of them. And they would have been fresh at the time they were assigned.
I was struck by Obama’s list of possible discussion topics for his seminar. They comprehensively and concisely identified most of the issues of “race and the law” that were then being widely discussed. What particularly impressed me was how even handed were his presentations of the competing sides the students might take. These summaries were remarkably free of the sort of cant and polemics that all too often afflicts academic discussions of race. Were this not a seminar on “racism and the law” I doubt one could tell which side of each issue the teacher was on. And indeed, even knowing it was written by Senator Obama, one cannot be sure which side of each issue he really took. Whatever position he held, however, Obama could clearly see and dispassionately articulate the other side.
The exam question and answer keys manifest a keen comprehension of then-prevailing Supreme Court Due Process and Equal Protection Clause doctrine. There is no doubt that his students were taught “the law” (such as it was), not merely the teacher’s viewpoints. His exam questions were nicely designed to ferret out the student’s understanding, but also the cracks and fissures in the Supreme Court’s current approach to the Constitution. What they did not show, however, were any insights on how he thought Supreme Court doctrine could be improved.
Indeed, if one is looking to these material to learn more about Senator Obama’s own views of either “racism and the law” or the Due Process and Equal Protection Clauses, one will be disappointed. He either was skillful at concealing his own take on these issues both in these materials and in the classroom (as reported by his former students) or he held no deep commitments on what one would think were matters of central concern to him. While this latter possibility would make him a flexible politician, it is bound to disappoint his most vehement supporters and detractors alike. In the end, while they confirm that the former president of the Harvard Law Review is a smart guy, and an exceptionally fair-minded teacher, they tell us little about his core beliefs on the very sensitive issues covered by these courses. Nor perhaps should we have expected them to.
I can only imagine the reaction of academics and pundits had President Bush said what President Obama had said on Monday. And I take the fact that the President needed to “refine” his position on Tuesday as an implicit admission that his Monday statement was in need of refinement. But whatever accounts for this gaff, it was a marked departure from the legal sophistication he demonstrated as a lecturer at the University of Chicago Law School in the 1990s.
Source: volokh.com
No comments:
Post a Comment