Bench Memos

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Still More on Obama’s Conversion


Ed Whelan and I are not disagreeing so much as we are talking about different things.  Ed questions whether the position which Obama says is his, is really his.  Or, Ed questions whether Obama means what we mean when we say things that look and sound just like what Obama said.  Or both.

I am talking about the position itself that Obama described (and says is his).   I think I know legal conservatism when I see it.  And anyone who says that the judicial lion can (does, should) lie down with the lamb up to 99 percent of the time, is singing  a conservative tune. Anyone who says that John Roberts’ picture of calling balls and strikes hits home in all but one case of the hundred, is playing on the Fed-Soc’s team. 

Groucho once said that he would not want to belong to any club willing to have him as a member.  It is tempting to think that any position claimed by Barack Obama on judges just cannot be the movement in which Ed — and I — have long labored.  Yet, there is Obama’s speech, in black and white (and red, not blue).   The next move is, I think, Obama’s, not ours.   What I would not do — and which I fear Ed might, in part, be doing — is scramble legal conservatism just so that Obama’s confessed position, isn’t.

Postscript: Ed mentions (in his most recent post) Ronald Dworkin’s “one right answer” thesis.  I don’t think Dworkin’s views are apposite.   Dworkin argued that the conventional legal materials are usually indeterminate, and that judges routinely must rely upon their own moral principles to actually find the law of the case.  For Dworkin, the “right” legal answer was the answer which was the morally “best” answer which also “fit” the legal materials.  Obama is saying (believe it or not) that conventional legal materials almost always settle matters, and that rarely should judges rely upon their “moral bearings.”


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