The Oath

by Jeffrey Toobin

  But for all that Obama showed respect for Marshall, Houston, and their peers, he also made clear in his own way what he expected of the contemporary legal system: not much. Those pioneers had used the courts to break down the legal barriers that oppressed African Americans. But by the time Obama was at Harvard, that work was mostly done. The task of legal progressives of Obama’s vintage was to try to hang on to the gains that had been made in the courts—and that wasn’t easy, or of particular interest to him. In 1991, Obama graduated from Harvard Law School into the world of the Rehnquist Court, where the social change on the agenda was (almost always) in the conservative direction. If the right was ascendant, the left was distracted—with the baroque inventions of Critical Legal Studies. For someone like Obama, who had spent years working on the real-world problems of poor people in Chicago, theories untethered to reality had no appeal.

  Later, when Obama was a senator, he explained the nature of his disillusionment with the use of the courts for social change. It wasn’t just that things looked bleak at the Rehnquist Court. “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy,” he wrote in The Audacity of Hope. Yes, he pointed out that he believed in the right to privacy and celebrated the legacy of Brown in civil rights, but it wasn’t up to lawyers to preserve those rights. “There was one way to ensure that judges on the bench reflected our values, and that was to win at the polls.” Unlike his honored forebearers, Obama would devote his life to elections, not lawsuits.

  Almost as soon as the president and the other new executives were elected to their positions on the masthead of the Review, most of them turned their attention to obtaining judicial clerkships. Many sought opportunities with judges on the circuit courts of appeals who were known as “feeders” to Supreme Court clerkships. After Obama won the presidency, Abner Mikva, a former congressman from Chicago, who then served as a judge on the D.C. Circuit, sought him out as a clerk. Mikva was a feeder, and virtually all presidents of the Harvard Law Review went on to clerk on the Supreme Court. But Obama turned Mikva down. It was further proof that his interests lay outside the legal system.

  Obama’s election as president of the Review drew particular attention in his adopted hometown of Chicago, and an article in the Sun-Times piqued the interest of a local lawyer named Judson Miner. Miner belonged to the small cadre of left-leaning Chicago lawyers who had devoted their careers to fighting the Daley machine as well as race discrimination in its many permutations in the city. At the time, Miner, who is white, had returned to his small law firm after a stint as the top lawyer on the staff of Harold Washington, who was the city’s first black mayor before his sudden death in 1987. On a whim, Miner called the Review, to try to speak with Obama. The receptionist corrected Miner’s pronunciation of the name and told him, “You’re 643rd on the list.” But Obama called Miner back that day. (Miner’s daughter garbled the message. “Some guy with a funny name called,” she told him.)

  Obama had lived in the Chicago political world long enough to know of Miner, even if he did not yet know him personally. Obama told Miner he was coming to town shortly and he would be delighted to take up Miner’s invitation to meet. Obama was returning on a recruiting trip paid for by Sidley & Austin, one of the pillars of the legal establishment in the city. (Obama had worked there the previous summer and hadn’t cared for the big-firm environment. Still, the summer was not a total loss, because he met an associate at the firm named Michelle Robinson, and in time they started a romance.) At this point, Obama was looking for a job after graduation, and he wanted to talk to Miner about joining his firm, then known as Davis, Miner, Barnhill & Galland. Miner’s firm did the kind of civil rights and political work that interested Obama, and it offered a sufficiently flexible and informal structure that might allow him to do other things as well. Obama approached the subject in his usual methodical fashion—there were about six or seven lunches with Miner, with each man interviewing the other, in a way—but Obama finally agreed to sign on following his graduation. He was one of about a dozen lawyers.

  Obama was never a conventional associate. Almost immediately, he took a leave from the firm work to run Project Vote, a voter registration drive designed to build turnout for the 1992 elections. A little while later, Obama took time off to finish the book that became Dreams from My Father. (It was long overdue to the publisher.) Miner brought Obama along in some civil rights cases, like a suit against Illinois to compel the state to comply with the motor voter law. There were also routine commercial disputes and a few criminal matters. Soon enough, Obama had another claim on his time. At the law review, Obama had edited an article by Michael McConnell, a conservative professor at the University of Chicago Law School. (George W. Bush later appointed McConnell to the Tenth Circuit.) McConnell was so impressed with Obama’s work on the piece, which concerned freedom of religion, that he suggested that the head of the appointments committee at the law school should take a look at Obama.

  Obama told Douglas Baird, the chair of the committee, that he wasn’t interested in a tenure-track job. But the University of Chicago was so eager to have Obama on campus that the law school offered him an office and a fellowship to work on his book. Two years later, in 1993, Obama started teaching law students. Because he was effectively an adjunct professor, he was given the title of lecturer, and he continued teaching a class every semester for about a decade. Obama was an elusive presence on the Hyde Park campus; he tended to teach his classes and leave. He was not expected to do scholarly work—writing law review articles and the like—and he didn’t attend faculty meetings. The University of Chicago long enjoyed a reputation for conservatism, especially in economics, and that was somewhat true at the law school as well. Richard Posner and Frank Easterbrook were two celebrated conservatives who were appointed to the federal bench by President Reagan and kept their ties to the law school. During Obama’s time, there was a substantial core of liberals on the faculty too, notably Diane Wood and Elena Kagan. Obama’s relations with all factions were the same: friendly but distant.

  To the extent Obama had an academic specialty, it was voting rights—not surprising, given his interest in politics and his experience in the voter registration field. In the midnineties, Obama heard that a group of professors including Richard Pildes, then of the University of Michigan Law School, were preparing a casebook on what they called the law of democracy. Obama sought out Pildes, obtained a draft of the book, and used it to teach his class. The two men struck up a friendship based on their shared interest in what was then a fairly obscure field. (After Bush v. Gore in 2000, the law of elections drew more public and scholarly attention.)

  The hot subject in voting rights at the Supreme Court, and in the academy, was racial gerrymandering. The Voting Rights Act of 1965, and its subsequent reauthorizations, forced states to draw their district lines so that African Americans would be positioned to win certain seats, both in Congress and in state legislatures. Most traditional civil rights groups, and black politicians, made a sacred cause of the creation of these so-called majority-minority districts. To them, this was the core purpose of the Voting Rights Act: to get more blacks elected to public office.

  Obama was skeptical. After the census of 1990, Republicans, especially in the South, recognized that they could make the Voting Rights Act work for them, too. So GOP strategists joined with some black Democrats in creating overwhelmingly minority districts. As a result, black politicians won seats in several states where they had not won races since Reconstruction. At the same time these new districts drained Democratic votes from other districts—making them ripe targets for Republicans. A few black politicians gained sinecures, but the Democratic Party suffered. Indeed, the Republican takeover of the House of Representatives in 1994 came about in part because of losses by moderate Democrats in the South whose districts had been denuded of African American voters.

  To Obama, the civil rights groups had
it wrong on voting rights. Of course, Obama had no objections to blacks winning elections, but such victories alone were just symbols. He thought the point of politics was actually to accomplish something—to vindicate democratic (and Democratic) values by passing laws. If black politicians just hoarded Democratic voters to stay in office, they’d never get anything done once they were there. Without coalition building, Obama told Pildes, the progressive cause was doomed.

  Five years after graduating from law school, in 1996, Obama began his political career by winning a seat in the state senate. Like most other Illinois legislators, Obama worked part-time for the state, and he kept up his association with Miner’s firm and still taught a class every semester at the law school. At least initially, the Springfield post proved to be a disappointment to Obama. As a junior Democrat in a body run by Republicans, he had almost no power. He quickly started looking for an exit strategy. In 1999, Obama decided to challenge Bobby Rush, an incumbent congressman, in a Democratic primary. The Chicago district was exactly the kind of racial gerrymander that Obama abhorred—and Rush was the kind of candidate who tended to do well in that kind of district. A former Black Panther, Rush had authenticity in abundance but little in the way of accomplishments. Still, the Democratic establishment (including President Bill Clinton) backed the incumbent, and Obama was humiliated in the 2000 primary, losing 61 percent to 30 percent.

  The defeat took Obama to a personal and professional crossroads. He thought seriously (with encouragement from his wife) about dropping out of politics altogether. A job as president of a local foundation beckoned. Instead, Obama decided to dedicate himself, for the first time, to his work as a legislator. Court-ordered social change still held little allure for him, as he made clear in a 2001 interview on local Chicago public radio. Many liberals tried for years to persuade the Supreme Court to step beyond desegregation orders and direct that public schools be funded equally. Obama explained why he believed that approach had failed, citing the 1973 case of San Antonio Independent School District v. Rodriguez. In Rodriguez, the Court found, by a 5–4 vote, that unequal funding of school districts in the same state did not amount to a violation of the equal protection clause of the Fourteenth Amendment. As Obama described the decision, the Court “basically slaps those kinds of claims down and says, ‘You know what—we as a court have no power to examine issues of redistribution and wealth inequalities with respect to schools. That’s not a race issue, that’s a wealth issue, and something we can’t get into.’ ” The Court said that it was up to legislatures, not courts, to make judgments about redistribution of wealth—which was fine with Obama. “Maybe I am showing my bias here as a legislator as well as a law professor,” he went on, but “the institution just isn’t structured that way.”

  This was an Obama credo of sorts. To him, the courts were (or should be) static in their protection of basic rights, but he was not going to push judges and justices to create new ones. In this way, Obama differed from both liberal heroes like Thurgood Marshall and conservative icons like Antonin Scalia; they believed that the courts could deliver social change. Obama did not, and this diffidence about the role of the courts shaped his professional life and, later, his presidency.

  After Obama’s defeat in the 2000 congressional race, his fortunes turned around. Just as he started paying more attention to the job in Springfield, the Democrats took control of the state senate in 2002, so he had the chance to accomplish something. He sponsored or cosponsored twenty-six successful bills in a row, including tax cuts for the lower middle class, health care for poor children, a ban on the diet supplement ephedra, and a careful compromise on racial profiling by the police. (The bill required police to record and report the race of every motorist who was stopped.) Obama decided to run for an open U.S. Senate seat in 2004. His good fortune multiplied. The candidacy of his leading opponent in the Democratic primary imploded in a sex scandal—and, incredibly, the candidacy of the Republican initially nominated to face him also ended in a sex scandal. He wound up facing only nominal opposition in the general election. Even though Obama was still just a state senator, he gave the keynote speech at the Democratic Convention in 2004—and it was a smash. His memoir was reissued and became a best seller.

  By the time Obama arrived in Washington in 2005, he was a national figure—but on his own terms. He was, of course, the only African American senator at that moment, but he went out of his way to define himself in other ways. He joined the Committee on Foreign Relations, not the Judiciary Committee, which is the principal guardian of the civil rights laws and a seat the only black senator might have been expected to take. Obama dabbled in legislating, but basically used his Senate office to prepare to run for president. He wrote a campaign-style manifesto, The Audacity of Hope, and turned a book tour into a testing-the-waters campaign. (The title of the book came from a sermon by his preacher in Chicago, Rev. Jeremiah Wright Jr.)

  As Obama began playing to a statewide and then a national audience, he made some adjustments in his stands on the issues, notably gun control. When he was running for the state senate in Chicago, he took the conventional view of inner-city politicians that gun ownership should be sharply limited. In his first race for state senate he even said in a questionnaire that he supported “restrictions on the sale and possession of handguns.” (Obama later said a staffer filled out the form.) Still, in the state legislature, Obama continued to vote in general support of restrictions on gun use and ownership.

  But when he ran for the U.S. Senate in Illinois, a state with a thriving hunting culture, Obama began subtly turning away from his previous position. Like many Democrats nationwide in the post-Clinton era, Obama recognized that to push gun control was to court electoral disaster; the laws would never pass and the candidates who supported them would never win. Still, Obama had not at this point migrated entirely to the individual rights views of the Second Amendment. When Alan Keyes, the hapless Republican who wound up running against Obama in the 2004 Illinois Senate race, challenged Obama in a debate on his beliefs about the Second Amendment, Obama steered the conversation in a different direction. Obama said nothing about the Constitution but only that he believed in “common sense gun safety” measures like a ban on assault weapons.

  But conservatives had succeeded on gun control and the Second Amendment in the new millennium the way liberals had won on school desegregation and equal protection in the 1960s. Through the use of politics, the courts, and the broader culture, each side in turn had changed the understanding of the Constitution. In both cases, the political victories were so overwhelming that opposition became futile. By the 1970s, no serious politician advocated segregated schools; by 2008, no serious presidential candidate—at least one who hoped to win—advocated the traditional conception of the Second Amendment.

  So, after Obama launched his presidential campaign in 2007, he began speaking out in support of an individual right under the Second Amendment. The mode of Obama’s expression, which he repeated throughout the campaign, revealed the nature of the conservative ideological victory on this issue. As Obama put it in a debate with Hillary Clinton before the Pennsylvania primary, “As a general principle, I believe that the Constitution confers an individual right to bear arms. But just because you have an individual right does not mean that the state or local government can’t constrain the exercise of that right, in the same way that we have a right to private property but local governments can establish zoning ordinances that determine how you can use it.” It was, characteristically for Obama, a cautious position, but still an unmistakable endorsement of the individual rights theory. The future president picked his fights—and chose to avoid this one over the Constitution. It wouldn’t be the last time, either.

  2

  “ON BEHALF OF THE STRONG IN OPPOSITION TO THE WEAK”

  On gun control, Obama played to his instinct for compromise and conciliation. Politics often lends itself to these sorts of solutions. But sometimes a senator, like a justice, simply ha
s to make a decision. On one of these occasions, during his brief career in the United States Senate, Obama had a real struggle: the nomination of John Roberts to be chief justice of the United States.

  Obama and Roberts had met only once, in the fall of 2005. Roberts had already called on most of the senators when he finally made it to Suite 713 in the Hart Building, the remote lodging to which junior senators like Obama were assigned. Roberts was exceptionally good at these courtesy calls: knowledgeable but not arrogant, open but noncommittal. As far as Obama was concerned, the judge had a lot going for him. Obama valued credentials, and Roberts had the best of their shared generation, not least a Harvard Law degree. For his part, Roberts had the same instincts about Obama. Judicial candidates making the rounds of senators quickly suss out the gasbags from the players, and there was no doubt in Roberts’s mind of the future president’s intelligence.

  In the end, Obama’s vote on Roberts had little to do with the nominee’s qualifications, or even Obama’s feelings about him. The senator consulted some of his law professor friends, like Laurence Tribe, at Harvard, and they told him that Roberts was about as good as anyone could expect from the Bush administration. The judge was conservative, Tribe said, but perhaps he’d keep an open mind. But the advice that mattered most to Obama came from his own chief of staff, Pete Rouse, a Washington veteran. Rouse told Obama, in effect: Cut the shit. You can’t run for the Democratic nomination for president and also vote to confirm George Bush’s nominee for chief justice. The Democrats who vote in primaries care too much about these issues—like abortion rights—for you to vote for a justice who might overturn Roe v. Wade. Obama couldn’t disagree.

  So Obama voted no, one of only twenty-two negative votes. (Obama’s future rival Hillary Clinton voted the same way.) Still, Obama’s statement on the Senate floor reflected his ambivalence on the nomination. “There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land,” Obama said. “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.” Exaggerating slightly, Obama said 95 percent of cases at the Supreme Court were easy; “a Scalia and a Ginsburg will arrive at the same place most of the time.” (About a third of cases are unanimous each year.)