Professor Obama

The NYT ran a long feature Wednesday about the twelve years Barack Obama spent teaching law at the University of Chicago. The paper’s framing of the story is that Obama kept himself aloof from the Chicago faculty, made his political ambitions known, and shrewdly kept his positions on policy questions such as affirmative action and government regulation close to the chest.

“He surfaced all the competing points of view on [controversial quota-queen Lani] Guinier’s proposals with total neutrality and equanimity,” says Prof. David Franklin, sounding a familiar theme about Obama that he excels at dispassionate analysis, with a gift for empathizing with both sides of hot button issues. The flipside to this gift, of course, is that it leaves people heavily invested in academic and intellectual camps wondering whose side he’s really on.

My take on the article's portrait of Obama as a professor, and the insights that can be gleaned from his Constitutional Law exams and answer keys, is that they confirm my view of him as a thoughtful and careful legal mind more interested at getting at the heart of policy disputes than in resolving them. His course materials emphasize the realities of racism, disenfranchisement, and poverty--and the distortions those realities have on a democratic political process--while at the same time acknowledging the failures of heavy-handed attempts to fix them from the top down. One question from a 1996 exam asked students to analyze two hypothetical proposals by a black mayor, in a heavily segregated city split 50-50 between blacks and whites with a significant history of institutional racism in the power structure, to ensure that the awarding of construction contracts and the hiring of firemen better reflect the city's racial composition. Both proposals are facially race-neutral, with the construction proposal skewing toward companies based in low-income neighborhoods and the fireman proposal doing away with a (possibly culturally-biased) written exam.

Obama's answer key to both questions isn't earth-shattering: he's looking for students to analyze the right cases (Aderand, Croson, Washington v. Davis, etc.) and put forth good arguments about the level of scrutiny such proposals would face in court and the likelihood of surviving. What strikes me though is his understanding that it's not enough to believe that the mayor is right, or that his proposals are a good idea--you have to convince a court that the proposals play by the rules the Supreme Court has set down regarding discriminatory intent, narrow tailoring to a compelling state interest, and so forth. He seems keenly aware that knowing your arguments are the right ones is not enough in a sprawling, diverse democracy: you need to take seriously the opposing views, pare the issues down to their cores, search for the common ground, and move from there.

Lawyers are trained to be advocates, to take a goal (my client's best interest) and pursue any and all threads that lead to that goal while ignoring, minimizing, or attacking those that don't. Obama's not an advocate. He's a balancer. He doesn't make a stand and then use whatever arguments happen to be convenient to defend that stand til the crack of doom--he weighs competing sides, acknowledges the impossibility of always being right, and looks for common ground. So when Richard Epstein complains that "he’s always been a thoughtful listener and questioner, but he’s never stepped up to the plate and taken full swings," he means Obama's never planted his flag in the sands of an idea and loaded his guns to defend it, right or wrong.

Which is exactly what voters sick of pig-headed, reflexive partisanship find so refreshing.

By way of reflexive balance, the October Protocol notes the extensive use of the words "I" and "me" in Obama's memos and communications to his law classes.