FIRST ONE @ ONE FIRST

Is Jeff Rosen Reading F1@1F?

Posted in Clairvoyance by Mike Sacks on February 18, 2010

Professor Rosen follows up his TNR piece on Chief Justice Roberts’s political awareness with a WaPo column giving serious thought to another F1@1F fancy – Justice Barack Obama:

He’s too detached and cerebral. Too deferential to Congress. Too willing to compromise. And he’s too much of a law professor and not enough of a commander in chief, as Sarah Palin recently admonished.

These are some of the qualities for which the president, rightly or wrongly, is criticized. They are also the qualities that make him well suited for another steady job on the federal payroll: Barack Obama, Supreme Court justice.

Rosen continues with a couple of his fantasy scenarios:

It would be unusual, but not difficult, for Obama to get himself on the Supreme Court. He could nominate himself to replace John Paul Stevens, for example, or he could gamble and promise Hillary Rodham Clinton that he won’t run for reelection in 2012 in exchange for a pledge of appointment to the next vacancy.

I believe my fun with the future is less fantastical, at least in terms of a Justice Obama timeline.  As I implied in one of my very first F1@1F posts, should there be a Democratic President at the dawn of the next decade, Obama is more likely to succeed Scalia than he is to swap himself out for Ginsburg during his own presidency.

Even if my own peyote prediction trumps Rosen’s silly scenarios, the rest of Rosen’s column remains quite compelling.  He invokes Justice Brandeis as the prototype for a Justice Obama:

Brandeis, who served on the high court from 1916 to 1939, offers a good model for Obama. Known as “the people’s lawyer,” he was an economic populist, criticizing the “curse of bigness” that led oligarchs such as J.P. Morgan to threaten the entire financial system by taking reckless risks with “other people’s money” and then to demand government bailouts after their bad bets. But Brandeis opposed bigness in government as well as in the private sector, and during the New Deal he preferred regulations that prevented companies from getting too large in the first place — such as the Glass-Steagall Act separating commercial from investment banking — rather than the creation of huge federal bureaucracies to regulate the economy.

On the high court, Brandeis generally stood for judicial restraint, denouncing conservatives for striking down progressive state economic regulations. But he also believed fiercely in the First Amendment and freedom from unreasonable searches. Both a pragmatist and a civil libertarian, he provides a judicial ideal for Obama, whose record resembles his in many respects.

Besides Obama’s judicial qualities listed by Rosen, Obama also has an ambitious vision of his place in history.  But he also knows that making history is all in the timing, and he won’t make history by simply becoming a Justice.  Even if he’d be the first Justice from Hawaii, he wouldn’t be the first Harvard Law graduate, University of Chicago professor, Senator, African-American, or President to turn up on the Court.

But he could be the momentous fifth vote to turn the Court back to the left.  He won’t make that history if he replaces Stevens or Ginsburg.  And don’t think Obama doesn’t know that–if Obama has his eye on the Court, of course.

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