Apology to Obama [UPDATED]

[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.

Comments

[karen]

How absolutely COOL!! Two intelligent women and two different takes w/maximum style!! I love it.

Would you consider Joe Liberman in the same class as Obama and Lindsey? I really like him because he seems most honest, a Dem willing to listen and bend a bit, but loyal to his *Tribe*. I think that is valuable, the loyalty. Even if I disagree, I admire that. So, in a way, I understand Obama better now.

Pat Leahy plays the game best, damn him. Now you've got to know his brakes will be locked from here on end. If I'm wrong, I'll have to eat my hat or some such. HE'S the real game-player.

[Tom Strong]

Given Prof. Althouse's glowing words for Senator Russ Feingold, I find it quite a stretch for her to claim that she's a "fan of no politician." (And didn't he wote against the Iraq resolution, which she has supported so strongly?)

But hey, I like the guy too.

[nappy40]

I agree with Ann, Amba. You've been had.

[amba]

*sigh* All the lawyers are ganging up on me. (Probably because it takes one to know one.)

[KaneCitizen]

Hey, at least AA should be happy that Obama is a sharp dresser.

[Tom Strong]

One more thing --

I think Ann and Nappy have a point about Obama's rhetoric. However, in suggesting that it's empty, I think they're missing something as well. After all, Obama is a junior senator with no political record to speak of - this is in many ways his first "real" political decision. But he's already made a contribution to the field of politics, especially moderate politics. That contribution is his rhetoric itself.

How politicians speak matters. The claim that it doesn't, that votes are all that count, is bullshit in my opinion. Most of what politicians do is speak, and most of what we do in response to them is listen to what they say.

The first thing most people remember about FDR is that he once said "We have nothing to fear but fear itself." Those who lived at the time also remember his "fireside chats," and his stirring, reviving speeches during World War II.

Truman: "The Buck Stops Here."

Kennedy: "Ask not what your country can do for you, but what you can do for your country."

Reagan: "Morning in America;" "Mr. Gorbachev, take down that wall"

Reagan didn't knock down that wall personally. But in people's memories, it's almost like he did, because he said that. (And even better, he said it on TV).

Obama has worked out a new manner of speaking and writing that is at once extremely flexible, yet speaks to people's clearest moral impulses at the same time. It's the kind of rhetoric that can create alliances and unity where none existed before. Check out his immensely thoughtful response to Daily Kossers who decried Pat Leahy for supporting Roberts.

The only other politician I've ever known to be such a great speaker is Tony Blair. I can't think of an American politician in my lifetime who was his equal.

I'm not really trying to defend Obama's vote by saying all this. For one thing, I don't think his vote needs defending. But I don't think any amount of rhetoric can justify a vote to someone who strongly disagrees with it.

I guess I'm just trying to say that how a politican speaks is nothing to be flip about. Even if Obama turns out to be a total zero politically, a flimsy flip-flopper who stands for nothing, the rhetorical approach he has created has the potential to change our political system for the better.

[Donna B.]

Though Obama said it very nicely, he essentially accused Roberts of either lying or being completely unaware of the substance of his own "heart".

I liked Obama more before I read his excuse for his vote.

[amba]

Good point, Tom.

Donna, I didn't read it that way. I thought he was saying that Roberts might have had a different definition of who the "bullies" are, and might have withheld his views on the court's role in protecting (political as well as racial and economic) minority rights. Of course, having conservative views on those subjects has no bearing on his qualifications.

I would still prefer that Obama had voted for Roberts. As I wrote in an earlier post, what the Democrats were really protesting with that vote was George Bush's presidency, which is their own damn fault. They could not have gotten a better nominee out of him, so they're just having a tantrum.

[Adam]

Amba, do not allow the cynics to dampen your spirits. Cynicism merely ingrains the very conditions the cynic claims to oppose.

Unless there is some compelling reason otherwise, we need to believe the best of someone. People often rise or fall to meet the expectations that others have of them. This is evident in children and remains latent in the adult.

That is not to say we ought be credulous; indeed, it is important to have skeptic 2.0 running quietly in the background of our mind, but cynicism should not be our dominant response.

I read your snippets and the entirety of his post on Daily Kos. I was stunned. Deeply impressed. I found his prose to be complex, but exquisitely precise. He wrote the way I would hope to write. Every single point that needed to be made was made.

He deftly revealed all of the deep flaws in the MoveOn mentality, but he was very careful to pre-emptively rule out certain interpretations. His closing statement in which he talks about the need for candor among allies was excellent. Usually, when someone writes, I find points where I where it's not quite right. In my view, it was flawless. MoveOn-ers ought be beaten daily with it until they can recite it by heart.

I also loved his discussion about "centrism." Although he overtly disagreed with "centrism," he was really only disagreeing with "mushy moderation." His words revealed him to be a true "radical centrist."

BTW, I really like Lindsey Graham too. I very much liked what he had to say after the nuclear compromise.

[karen]

How can Obama say that he wouldn't support a fillibuster and yet vote NO to the appointment of Roberts. Isn't that about the same thing and is he talking out of both sides of his mouth because of it?

What other civil rights will be lost due to a Conservative sided Court?

Besides abortion?

[Adam]

Basically, Obama voted no to record his displeasure and unease with the nominee. However, as he himself put it, a filibuster would have been quixotic: meaning a foolish thing that would have been doomed to fail. If you remember the nuclear compromise, a filibuster would only be allowed under extraordinary circumstances. Meaning everyone, including the seven republicans, who agreed to the nuclear compromise found Roberts extraordinary. Otherwise, if the Democrats attempted a filibuster the nuclear option would likely be imposed. So basically, a filibuster would have led to the nuclear option which would have permanently denied them the right to filibuster on any judicial nominee ever. In other words, incredibly stupid. It would have been like slapping someone only to have your arm chopped off.

Besides, jeez Karen, haven't you ever been displeased with something but not consider it worth a full-scale war? It's really that simple.

Other civil rights at stake are worker's rights (labor laws such as rights to unionize), gay rights, and environmental laws. There's a whole cluster of sensitive issues where a liberal justice would vote differently from a conservative one, but you're right that abortion is a central one.

[Adam]

But I should add that I think Obama should have voted for Roberts merely so that he could rightfully expect that a Republican would vote to confirm a Democratic president's nominee.

However, it may have been the right move politically. It gave Obama cover from the left, and simultaneously allowed him to reprimand them. It was a serious reprimand Karen and he was in part able to do so more effictively because his vote showed that he shared some of their core values. Christians will listen more to criticisms coming from a Christian than they will from an atheist.

[amba]

Yes, a kind of triangulation. When he said he was seriously tempted to vote for Roberts, I believed that. As a lawyer and legal scholar, he would have wanted to vote for him. As a Democratic Party politician, he was beholden to the base (and not least, as Ann's commenter Sloanasaurus points out, the DONORS), but voting with them also gave him the right to criticize them -- as "one of them" -- and try to counsel civility in dissent. So it was likely a very carefully weighed and measured move. If Obama could have a civilizing effect on the left it would be a welcome miracle, but if he can't he will have dissociated himself from their irrelevance.

[karen]

Thanks, you two!! i'm still learning :). it's such a freaken' game. I believe the way Ann does: Politcians are ambitious people, plying a trade.

[amba]

But isn't it funny how, on the right as on the left, those with the "wrong" views must always have the "wrong" motives? "We" are principled yet thrillingly pragmatic. "They" are out for power, money, and/or oil.

This is what SUCKS about partisanship. Let's face it, there are mixed motives all around. Probably most politicians, and not only they, operate from a mixture of ambition and principle. We can't give all the credit to those on "our side" of the aisle and all the blame to those on the "other side."