Legal Commentary

Jeffrey Rosen has a fun piece in this weekend's Washington Post arguing that President Obama would be better suited as a Supreme Court Justice than he is as President.  (Thanks to his colleague Lawrence Cunningham for linking to it on CoOp.)  It's not clear how serious Rosen is about this -- a little? a lot?  He speculates about the ways Obama could do it and the likelihood that he would be confirmed, but I think the piece is best read as a thought experiment.  

Although it's enjoyable, I think it's mistaken in some important ways.  First, I think Rosen sets the bar of presidential success too low, perhaps in part because of the unrealistic expectations that many of his supporters had when he took office, expectations that were fueled in part by forgetting about the awesome capacity of congressional Democrats to snatch defeat from victory.  It is too early to say whether Obama will be a successful or unsuccessful President, although it is not too early to say that he is the President of a nation that is not marching in lockstep to the same destination and whose mechanics discourage lockstep marching, and thus one in which the politics of consensus are unlikely to get us as far as some might hope.  

There is also just no indication that Obama wants the job.  I would be perfectly happy if he did; I might well disagree with him on a number of important issues, but I am sure he would be well-qualified to serve as a Justice.  Rosen acknowledges that Obama has said time and again that he doubts that courts can or should be in the vanguard of social change, and that constitutional law is something that does and should take place as much, or more, outside the courts than on the courts; yet it is not clear how seriously he takes these statements.  Here, again, Obama's function as a mirror for liberal hopes seems to be affecting Rosen's analysis.  Some of Obama's supporters seem to assume that he shares their progressive values absolutely, and that any departures from them -- say, encouraging the construction of nuclear power plants -- must be a calculated political decision (and a betrayal of progressive values) and nothing more.  There is no doubt he is in many respects a political progressive, including in some ways I disagree with.  But his supporters would be better off taking much of what he has written at face value -- and that certainly includes his view that the courts should not be the center of the action where constitutional politics and change are concerned.  Surely this is one factor (among many) in his selection of relatively older and more moderate judges for the federal bench, which is consistent with his own apparent estimation of the relative importance of judicial nominations but is read by some of his supporters as the betrayal of a promise.  Maybe Obama thinks that we lawyers and law professors are too Court-centric.  And, of course, maybe he is right.

Finally, I think Rosen is close but not quite right on issues of temperament.  He writes: "It's surprising but true that the least successful presidents are often the most judicious, while the most successful justices are the most pragmatic."  Aside from its overvaluing the importance of presidents and undervaluing circumstances and historical forces, I think the statement is a little inaccurate.  Judges have to decide, after all, without too much looking back, and too much havering and wavering can be a detriment in their job; good judges have to think, but not too much.  And, of course, some very non-pragmatic judges, although not always effective in cobbling together majorities, have sometimes influenced the development of the law downstream in strong ways.  It might be more accurate to say that too much dogmatism is bad for both presidents and Justices, and that figures in either institution who are unwilling to respond to and take advantage of changing circumstances will face significant problems.  Just as importantly, I think Rosen makes too much of an assumption that whatever skill-set Obama possesses will be institution-insensitive, that the way he does things now will simply be transferred to the Court lock, stock, and barrel.  I doubt that.  The institution itself would change how he dealt with things.  That is not to say we shouldn't value the possibility of having individuals with experience in political office on the courts.  We should.  But we should value them more for their experience, for their knowledge of facts and of how the political branches work, than for a set of skills at dealing or compromise that they may or not bring with them, or use skillfully, when the context is radically different.  Justice Obama would not be the same person as President Obama.