[Note: Even if you don't have the patience to read the long quote from Barack Obama below, don't miss the expert skewering by Ann Althouse that follows. Just scroll down to our e-mail exchange.] Yesterday I wrote out of bitter disappointment that Illinois Senator Barack Obama, one of the politicians I have most admired (Lindsey Graham being the other), had voted against John Roberts' confirmation as Chief Justice of the Supreme Court. I thought that Senator Obama, who had shown himself to be temperate but never mushy, capable of force and clarity while honoring complexity, had stooped to "playing to the base" and voting based on career calculation as a Democrat. I was way wrong. I was unaware that Senator Obama had already published a statement, one week before the full Senate confirmation vote, detailing his struggle to decide how to vote and his ultimate decision to vote No despite being "sorely tempted" in the other direction. (Props to Meg at CelebrateVida for clueing me in.) The statement is vintage Obama. It is direct, intelligent, honorable, and transparent, and it does not set off my spin detector. I now respect his decision and regret that I so mischaracterized it. To the extent that there is a Democratic "pack," he's not running with it. He's the cat who walks by himself. To set the record straight, I'm just going to quote a whole lot of his statement. But read the whole thing.
I have not only argued cases before appellate courts but for 10 years was a member of the University of Chicago Law School faculty and taught courses in constitutional law. Part of the culture of the University of Chicago Law School faculty is to maintain a sense of collegiality between those people who hold different views. What engenders respect is not the particular outcome that a legal scholar arrives at but, rather, the intellectual rigor and honesty with which he or she arrives at a decision. Given that background, I am sorely tempted to vote for Judge Roberts based on my study of his resume, his conduct during the hearings, and a conversation I had with him yesterday afternoon. There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts. The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy. In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart. I talked to Judge Roberts about this. Judge Roberts confessed that, unlike maybe professional politicians, it is not easy for him to talk about his values and his deeper feelings. That is not how he is trained. He did say he doesn't like bullies and has always viewed the law as a way of evening out the playing field between the strong and the weak. I was impressed with that statement because I view the law in much the same way. The problem I had is that when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak. I want to take Judge Roberts at his word that he doesn't like bullies and he sees the law and the Court as a means of evening the playing field between the strong and the weak. But given the gravity of the position to which he will undoubtedly ascend and the gravity of the decisions in which he will undoubtedly participate during his tenure on the Court, I ultimately have to give more weight to his deeds and the overarching political philosophy that he appears to have shared with those in power than to the assuring words that he provided me in our meeting. The bottom line is this: I will be voting against John Roberts' nomination. I do so with considerable reticence. I hope that I am wrong. I hope that this reticence on my part proves unjustified and 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. I hope that his jurisprudence is one that stands up to the bullies of all ideological stripes. . . . [Emphases added]
Senator Obama then goes on to talk about partisan rancor, ideological dumbing-down, and its toxic effect on the confirmation process:
I was deeply disturbed by some statements that were made by largely Democratic advocacy groups when ranking member Senator Leahy announced that he would support Judge Roberts. Although the scales have tipped in a different direction for me, I am deeply admiring of the work and the thought that Senator Leahy has put into making his decision. The knee-jerk unbending and what I consider to be unfair attacks on Senator Leahy's motives were unjustified. Unfortunately, both parties have fallen victim to this kind of pressure. . . . The issues facing the Court are rarely black and white, and all advocacy groups who have a legitimate and profound interest in the decisions that are made by the Court should try to make certain that their advocacy reflects that complexity. These groups on the right and left should not resort to the sort of broad-brush dogmatic attacks that have hampered the process in the past and constrained each and every Senator in this Chamber from making sure that they are voting on the basis of their conscience.
Read it all here. Shit. Now I'm back to worrying that he's going to get assassinated. UPDATE: Ann Althouse thinks I've been had. She is (my words, not hers) disgusted with all the Democrats who indulged in political posturing by voting against John Roberts, Obama no exception, and she is highly skeptical of anything said by any politician. Our e-mail exchange, reprinted with her go-ahead: AG: Have you seen Sen. Obama's statement on why he voted against Roberts? Like you, I tarred him with the same brush the Democrat pack deserved, but after reading this statement I regret it. AA: Nothing stood out to me in that other than that it was incredibly verbose. I can't tell from your post what exactly impressed you, and you cut and pasted so much of his windy prose. AG: Chacun a son gout, I guess. . . . which is to say, I didn't find it so verbose. I might have edited it a little, maybe. His writing, and speechwriting, has always seemed to me to achieve clarity without sacrificing complexity. So that's just my taste in style -- I'm more verbose than you myself, right? What impressed me about it was his civility and collegiality towards those with opposing views (rare enough among Dems). And though the concerns he expressed were the conventionally liberal ones, he's got a point about the company Roberts has kept and he's got a point about the minority of cases where there's inevitably more involved than judiciousness, and even more than ideology. AA: To me, it doesn't matter what the written justifications his lawyers wrote out are. Those are not the actual reasons. As writing, it amounts to the same blather I heard throughout the hearings. In no way does he stand out in a special way. And the chances those are his words are close to zero. It's written the way judicial decisions are written, saying what is appropriate, revealing nothing of what is inappropriate. I have to spend my life reading things like that. It comes across as entirely generic to me. I'm sure he has excellent lawyers and speechwriters working with him, setting up his career. They take the tone that it is advantageous to take. The bottom line for me is what it is for all of the no-voting Senators. There was no decent reason to oppose him. AG: I'm surprised at the intensity of your venom. And from what I have heard of Obama from fellow Chicagoans who know him, he writes his own stuff. AA: I'm supposed to believe political speeches at face value? I'm not venomous, just realistic. AG: The "they" who are "setting up his career," then, are a lot smarter than the average Democrat's handlers, as they seek to put a moderate spin even on his liberalism, if you insist on seeing it all as spin. If that's the tone it's now advantageous to take, that's good news. Maybe I'm terribly naïve in wanting at least a few politicians to be genuine and sincere. Lindsey Graham is the other one who gives me that, possibly false, impression. or do you think only Democrats are phonies? AA: I think they all present a false surface, just like judicial opinions. It's my job to look through that and I've been practicing for a quarter of a century. AG: [being more verbose, true to form] That may be true, but some ring falser than others. I don't know what the cues are, and it would be interesting to hear what an analyst of body language, vocal tone, and facial cues has to say, but a few politicians give an impression of being present and being themselves when they talk, which in turn suggests sincerity and integrity. Are they just the slickest, the best performers of the bunch? (Do they say "That ought to hold the little bastards" when they think the mike has been turned off?) Or is our innate ear for this too keen to fool? I don't know. AA: Are you sure you're not a fan of the guy? I'm a fan of no politician. I'm sure plenty of them are decent enough as they ply their trade, and I'm willing to believe Obama is decent enough, but he's an ambitious man with a highly skilled staff. AG: [red-faced] "Fan"? The word wouldn't have occurred to me in connection with politicians. I am guilty of getting my hopes up when somebody plays the game with a little more class and independence than usual. Both Graham and Obama have impressed me that way, so it's not about party or ideology, in fact it's about independence from slavish adherence to party or ideology (which can coexist with loyalty). [However, here I suspect Ann would make the point that voting against Roberts WAS slavish adherence to party or ideology. We wrapped up this morning:] AG: Permission? To reprint a few of your twenty lashes as an update to the Obama post? I ended up regretting that the exchange wasn't in comments, since your seen-it-all critique of his "brief" and implication that I'd been taken in by a bunch of carefully crafted candidate boilerplate seemed worth airing. AA: Yeah, please do. I was thinking of doing something like that. Feel free to reproduce the whole thing as a dialogue and I'll link to it. UPDATE II: In the response to Daily Kos linked by Tom Strong in the Comments, Obama speaks frankly as a Democrat to fellow Democrats about the best strategy for regaining the White House and the Senate. At the risk of gassing you with more of his "windy prose," here he is defending Ann's home senator:
A majority of folks, including a number of Democrats and Independents, don't think that John Roberts is an ideologue bent on overturning every vestige of civil rights and civil liberties protections in our possession. Instead, they have good reason to believe he is a conservative judge who is (like it or not) within the mainstream of American jurisprudence, a judge appointed by a conservative president who could have done much worse (and probably, I fear, may do worse with the next nominee). While they hope Roberts doesn't swing the court too sharply to the right, a majority of Americans think that the President should probably get the benefit of the doubt on a clearly qualified nominee. [Editor: take out "probably."] A plausible argument can be made that too much is at stake here and now, in terms of privacy issues, civil rights, and civil liberties, to give John Roberts the benefit of the doubt. That certainly was the operating assumption of the advocacy groups involved in the nomination battle. I shared enough of these concerns that I voted against Roberts on the floor this morning. But short of mounting an all-out filibuster -- a quixotic fight I would not have supported; a fight I believe Democrats would have lost both in the Senate and in the court of public opinion [. . .] and a fight that would have effectively signaled an unwillingness on the part of Democrats to confirm any Bush nominee, an unwillingness which I believe would have set a dangerous precedent for future administrations -- blocking Roberts was not a realistic option. In such circumstances, attacks on Pat Leahy, Russ Feingold and the other Democrats who, after careful consideration, voted for Roberts make no sense. Russ Feingold, the only Democrat to vote not only against war in Iraq but also against the Patriot Act, doesn't become complicit in the erosion of civil liberties simply because he chooses to abide by a deeply held and legitimate view that a President, having won a popular election, is entitled to some benefit of the doubt when it comes to judicial appointments. Like it or not, that view has pretty strong support in the Constitution's design.