The con law professor with judicial appointment power.

• Author: Beiner, Theresa M.
• Position: Constitutional law professor Pres. Barack Obama

Conservative or liberal, we are all constitutionalists. (1)

1. INTRODUCTION

   Constitutional law professors watch the Supreme Court of the United States: It's a key component of the job. But it is unusual to see a former constitutional law professor in the White House, where he actually holds the power to appoint federal judges. (2) The election of President Barack Obama thus presents a rare opportunity to explore the ways in which a president's time as a constitutional law professor may be reflected in his approach to judicial appointments.

   This essay begins with a brief description of President Obama's years on the law faculty at the University of Chicago, putting his experience as a law professor in the overall context of what his life was like at that time. The initial section also explores his other writings and some other likely influences on his constitutional philosophy.

   The essay then proceeds to discuss the implications of his time as law professor on the three stand-out aspects of President Obama's judicial appointments--specifically the diversity in his appointments to the federal district courts, courts of appeals, and Supreme Court; the slow pace at which he has nominated candidates for the federal bench; and the moderate nature of his appointees. While the diversity of President Obama's appointees may be unsurprising, given the courses he taught and his public statements about the judiciary and constitutional interpretation generally, that he nominated slowly may be surprising. However, this approach might not be all that unexpected when one considers President Obama's general philosophy of constitutional interpretation and his time as a law professor.

2. OBAMA THE PROFESSOR

   President Obama was a lecturer at the University of Chicago law school for twelve years. During that time, he taught Constitutional Law III, which included equal protection and substantive due process. He also taught a course called Racism and the Law and a course that addressed voting rights. (3) Thus, he did not teach the overall general constitutional law curriculum. Subjects he did not cover in his courses would likely have included the structure of the federal government and the first amendment, just to name a couple of broad constitutional topics that he would not have taught. His emphasis as a teacher was instead on equality and privacy principles. Equality would of necessity have been reflected in his coverage of equal protection, but it would also have made an appearance in his courses on voting rights and racism, for constitutional cases in these areas are grounded in principles of equality and participation.

   But it is not only the classes he taught that might help explain the Obama approach to judicial appointments. While President Obama was influenced during his law school days by his own constitutional law professor, Laurence Tribe, for whom he also served as a research assistant, (4) the more seasoned teacher he became at Chicago seemed to modify some of his views through interaction there with his friend and colleague Cass Sunstein, who is now on the faculty at Harvard. (5)

   How much Sunstein's view of the constitution influenced President Obama is speculation. Obama did appoint Sunstein to a senior position in the Office of Administration and Budget (6) and listed him as an adviser on Constitutional Law during his campaign. (7) Of course, he appointed Tribe to a position in the Justice Department and listed him as a campaign adviser as well. (8) But of the two, Obama spent more time teaching with Sunstein, who does not view the courts as the principal means of engaging in progressive reform. Instead, Sunstein advocates minimalism, which he describes as "narrow, incremental decisions, not broad rulings that the nation may later have cause to regret." (9) In addition, Sunstein prefers democratic solutions, urging the Supreme Court to, as Professor Rosen put it,

   be self-aware about the limits of its knowledge--refusing to decide certain cases and agreeing to decide other cases as narrowly as possible in order to save the most hotly contested questions in national life for democratic resolution. (10) Thus, if President Obama was influenced by Sunstein's thinking, as some suggest, (11) it would stand to reason that he would not appoint judges with extreme positions on politically controversial legal issues, but would instead appoint incrementalists who would respect conclusions reached by democratically elected branches.

   Professor Sunstein's approach likely would have had appeal to President Obama, a former constitutional law professor who was once also a state legislator--an elected official likely to believe in democratic means of reform and change. Indeed, President Obama has noted his faith in democracy, describing the constitution's "elaborate machinery" as a means of compelling Americans to enter into a conversation "in which all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent." (12) He believes in the outcomes of those democratic discussions and has "wondered if, in our reliance on the courts to vindicate not only our rights, but also our values, progressives ha[ve] lost too much faith in democracy." (13) Thus, one might reasonably expect that President Obama would not only favor an incrementalist approach to constitutional interpretation, but might also put more faith in democratically elected institutions than in the courts.

   President Obama's public statements prior to the Supreme Court's decision upholding most of the Affordable Care Act support this assessment. He emphasized judicial restraint, suggesting that the Court should be careful when contemplating the invalidation of a law enacted by Congress. Responding to one reporter's question, he remarked,

   Ultimately, I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint--that an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example. And I'm pretty confident that this Court will recognize...