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Iconoclast's Blog
Barack Obama, Legal Scholar
Posted by:
Iconoclast on
August 27, 2008 at
8:40PM CST
August 12, 2008
Barack Obama, Legal ScholarBy Ed LaskyBarack Obama promises to accomplish quite a lot if he becomes our next President. These promises are symbolized in his campaign themes: hope and change. But just how likely is he to fulfill his own promise and the promises he has made to the American people? Judging
by his previous career, not very likely. We have seen this movie before
in Barack Obama's life, and the end is not a happy one. In fact, when
you examine his career in its various dimension, it seems to be marked
disturbingly often by failure.
Faced with his failures, he tries to obscure the record; or else he blames mistakes on staffers or other people.
The
"successes" he uses as campaign tropes often turn out to be due to the
work of others for which he has claimed credit, or to be much less
significant than meets the eye. Fortunately, the spell seems to be
wearing off and the media has begun to scrutinize his career a bit
more, and it has been found wanting.
Far
more serious scrutiny of Obama's professional track record is
necessary, for there is a danger when an unexamined candidate meets an
uninformed voter. In the case of Barack Obama, disheartening aspects
emerge when one pulls off the rose-colored glasses.
His career has three chapters: academia, community organizing, and politics.
Today
we begin where his national career first took off: Harvard Law School
and examine his legal career. Future articles will cover Senator
Obama's community organizing and his political career.
Harvard Law Review president
Barack
Obama originally emerged on the national scene as the first
African-American president of the Harvard Law Review. This selection
may have been based on factors that do not necessarily reflect merit, as he himself recognizes.
He
has refused to answer questions about his days at Harvard (such holes
in his life are a recurring feature). He was clearly a man of promise
given the historic step that was taken when he was appointed President
of the Law Review.
Has he fulfilled his promise as a legal scholar?
One thing he did not do while at the review was publish his own work. . The absence of a paper trail is a pattern throughout his academic and to some extent his political career.
The pattern of leaving no intellectual footprints pre-dates Harvard. He has claimed he lost his senior thesis from Columbia University, where he majored in political science .
The thesis was on Soviet nuclear disarmament. The depth of knowledge on
display in Barry Obama's undergraduate thesis is of particular interest
because he was wrong about a crucial Kennedy-Khrushchev conference, and about the diplomatic history between America and the Soviets.
How
likely is it that someone would lose his senior thesis -- particularly
someone who thought his life was compelling enough that he would write
an autobiography just a few years later?
Legal scholar
Indeed,
he has left little in the way of a record for Americans to judge his
legal abilities. No written records, no signed legal papers, no
research papers authored or co-authored by him. Nothing.
This is especially surprising because he served as a senior lecturer and law professor (there is some dispute over his title) at
the University of Chicago Law School for twelve years. He was certainly
popular with his students, who were, like him, young and enthusiastic.
"Liberals flocked to his classes" and they give him high marks as a
professor.
But among his fellow faculty members, apparently the verdict was mixed.
He shied away from intellectual jousting that is otherwise the hallmark of academia. Jodi Kantor of the New York Times portrayed his shortcomings as a colleague in an academic community:
Legal expertise Senator
Obama often invokes his expertise on constitutional law. Does he
actually have any? You can't tell from his publications, and he even
lacks a record of intellectual engagement as a legal scholar.
Although he was president of the Harvard Law Review
as a student, in which capacity he no doubt wrote some unsigned notes,
a search of the HeinOnline database of law journals turns up exactly
nothing credited to Obama in any law review anywhere at any time. This
is yet more indication that his status as "lecturer" at Chicago was not
a regular faculty appointment, since regular full-time faculty are
expected to produce scholarship. Notwithstanding an apparent
eleven-year teaching career in constitutional law at a top-flight law
school, not one
single article, published talk, book review, or comment of any kind,
anywhere in the professional legal literature, under Barack Obama's
name,
As a person who prides himself on his legal background, should we be surprised that he did not seek a seat on the judiciary committee, a coveted spot for the Senate's most legal beagles?
Casting doubt
On the campaign trail he has issued a series of statements that cast doubt on the breadth and depth of his legal knowledge.
During a fundraiser in Denver, Barack Obama was asked what he hoped to accomplish in his first hundred days in office. His response:
One
should not have to remind the former President of the Harvard Law
review that a President of the United States cannot overturn a law.
Only the Supreme Court can overturn a law; Congress can change laws. A
President -- even one consumed by his own grandiosity -- cannot
"overturn" a law. That is Constitutional Law 101.
He
has certainly been wrong about the law and terrorism, and was wrong
about the applicability of the Nuremberg trial in terrorism related
legal matters (Does Obama Know What He Is Talking About? ). He certainly missed key legal aspects.
Blaming others
He
misjudged the constitutionality of Washington D.C.'s gun control law --
which is surprising considering this has been a signature issue for him
throughout his political career. He believed the DC handgun ban was
constitutional and supported it. The Supreme Court disagreed and threw
out the ban. In a move that has become a pattern with Barack Obama, he
sought to distance himself from his earlier opinion, blaming an "inartful " statement from an "unnamed aide" for stating that Obama believed that DC ban was constitutional. Blaming staffers for his mistakes and problems may not be an inspiring campaign slogan but it is certainly a motif for Barack Obama.
Neither he nor his campaign objected or sought to clarify that statement when it was published last year in the Chicago Tribune.
Only when the Supreme Court ruled and decided his view was legally
wrong did he and his campaign try to disavow this position. This will a
problematic pattern: blame others for mistakes and seek to recreate
history
Constitutional misinterpretation
State
Senator Obama willfully misinterpreted a "Born Alive" bill that came
before the Illinois State Senate when he served there. This legislation
was meant to address the issue of babies who were born during abortion
procedures. Illinois had been rocked by scandals of babies being
allowed to die (there were even macabre "comfort" rooms set aside in
hospitals where nature was allowed to take its tragic course).
Legislation was submitted that afforded these babies the protection of
the law. Babies born alive during an abortion would be treated just
like every other baby born alive and prematurely. The legislation was
also clear that it did not apply to unborn babies and would not
restrict abortions or violate Roe v. Wade. Nevertheless, Obama spoke
out against the bill saying it would not pass "constitutional muster"
and three years later, in his book The Audacity of Hope, wrote that it would have overturned Roe v. Wade.
He
was wrong. For those with a legal bent, the elements of this bill may
seem familiar -- as it should. Almost the exact same bill: the
Born-Alive Infants Protection Act, which passed in the U.S. Senate in
2001 by a margin of 98-0, supported by Senators such as Barbara Boxer
who are fervent pro-choice advocates. Neither these Senators nor has
the Supreme Court seen any constitutional problems with the legislation.
But Barack Obama, the constitutional law expert, somehow did. The superb new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate provides a very insightful treatment to this and many other issues involving Barack Obama; see also this.
However
one may feel about abortion, the fact remains that Barack Obama was
completely wrong on the legal merits of this legislation. Disappointing
for a man who prides himself on being a constitutional expert.
For
a man who was President of the Harvard Law Review and taught
constitutional law for 12 years, he seems to have a very odd conception
of the law. Or is there something more at work -- a yearning to
interpret and apply the law to advance his liberal goals, even if it
means ignoring case law and the Constitution?
This
leads one to question how Barack Obama would see to it that he fulfills
his Presidential obligations as outlined in Article 2 of the
Constitution to
We
may be skeptical of his fealty to this principle, when he told the
Teamsters union he would end federal oversight of the union in exchange
for their electoral support. Such oversight was the result of a long
history of corruption of the union. It was an unusual stance for a
Presidential candidate; one not taken at any time before by any
candidate. Up until now, union anti-corruption efforts have been
treated as a legal matter left to the Justice Department. Barack Obama
instead offers to lift this monitoring -- meant to prevent crime -- in order to gain votes.
How actively will he and the attorneys and judges he appoints monitor groups such as ACORN?
The Courts
Finally,
how will a President Obama select Supreme Court nominees? They, too,
apparently do not require a rigorous grounding in constitutional law.
He disagreed even with fellow Democrats over the selection of Justices
Roberts and Alito and voted against their confirmation
-- despite (or maybe because of?) their sterling academic and legal
credentials. He refused to participate in the so-called Gang of 14, a
bipartisan group of Senators (including John McCain) who worked
together to overcome roadblocks in the way of judicial confirmations.
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