Obama's Academic Background Could Influence Court Picks

Barack Obama, like his opponent, Hillary Clinton, also has a strong background in legal affairs, albeit one more contemporary. He graduated with honors from Harvard University Law School, where he served as the first African-American president of the Harvard Law Review. Following his legal education, he returned to Chicago to practice as a civil rights attorney and to teach Constitutional law at the University of Chicago.

Professor Lazarus recently called Sen. Barack Obama "a disciple of Harvard Law's Laurence Tribe and a Constitutional scholar in his own right." In an online column, he stated, "Obama's intellectual roots are deeply grounded in that progress can be achieved through law, including the judicial process."
Without decisions like Brown v. Board of Education and similarly-minded rulings—embracing racial equality and an evolving interpretation of the Constitution—Obama would not be a presidential front-runner today. Obama has said publicly that Brown was "a triumph for the soul of the nation."

Surprisingly, like Clinton, Obama did not seek a seat on the Judiciary Committee, a coveted spot for the Senate's most legal beagles. In his presidential campaign, Obama's "Blueprint for Change," his so-called comprehensive plan for America, only mentions the U.S. Supreme Court once: "Obama will work to overturn the Supreme Court's recent ruling that curtails racial minorities' and women's ability to challenge pay discrimination." His Web site also neglects discussion of the future of the Court or the mold of a candidate that he would consider naming to the bench.

Obama, like Clinton, voted against both Bush nominees to the Supreme Court, citing their tendencies to favor government and corporate interests—"bullies" in Obama's words—over the rights of individuals.

He wrote, "The bottom line is this: I will be voting against John Roberts's nomination. I do so with considerable reticence. I hope that I am wrong. I hope … 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."

Casting his vote against Alito, Obama noted similar concerns about the nominee's voting record, "The Judicial Branch of our government is a place where any American citizen can stand equal before the eyes of the law. Yet, in examining Judge Alito's many decisions, I have seen extraordinarily consistent support for the powerful against the powerless, for the employer against the employee, for the President against the Congress and the Judiciary, and for an overreaching federal government against individual rights and liberties."

In his votes against Roberts and Alito, Obama shared much of the same reasoning with Clinton, noting that the nominees' steadfast support for government and corporate powers—and disinterest in the rights of individuals—concerned him. One point he emphasizes more than Clinton, however, is Roberts's and Alito's tendency to favor the "unitary executive" theory, which supports fewer limitations on presidential authority.

Cass Sunstein, a widely-respected professor of law at the University of Chicago and Obama's former colleague, noted, "[he] is a Constitutional scholar before anything else—he himself would be a very reasonable choice for the Supreme Court, and would be more learned in the Constitution than any president, I believe, since Woodrow Wilson and leaders from the founding era themselves."

Suggesting his résumé might serve as a model, Sunstein said Obama's nominees would meet a rigorous standard for competence, "First and foremost, [his nominees would be] truly excellent . ..graduates of Harvard Law School, Chicago Law School. Obama admires excellence and [a nominee's] sheer quality would be first-rank."

McGinnis added to Sunstein's point that—more than Clinton—Obama taught at law school as a full-time career and knows many Constitutional law professors. "I tend to think that would make him appoint a professor … Obama is much more likely to think outside the box and appoint a professor, because he comes in with a lot of his [own] ideas." In fact, McGinnis even mentioned that Sunstein would be on the top of his list.

In terms of an Obama nominee's jurisprudence, Sunstein said, Obama would "undoubtedly appoint Justices who depart from the right-wing orthodoxy on the Court." He added, "It would be surprising if an Obama nominee was eager to immense power to the president, overturn Roe v. Wade, wanted to strike down environmental laws, adhered to the Republican Party platform."

While most legal analysts agree that the difference between potential Obama and Clinton nominees remains difficult to judge compared to the difference between Obama and Clinton and McCain, on style and points of emphasis, the Democratic presidential potential nominees—while broadly similar—might well differ in the details.

The next segment will focus on the presumptive Republican nominee, Sen. John McCain, and his potential impact on the Court and how his picks might differ from Democratic Sens. Clinton and Obama.

Read the rest of Scoop08's series on the High Court
Part 1: The High Court: A President's Potential Impact
Part 2: Clinton's Potential Impact on the High Court
Part 4: Despite 'Maverick' Tendencies, McCain Judges Would be Consistently Conservative