The Latest Drudge-Driven Attack

Ken AshfordConstitution, Courts/Law, Economy & Jobs & Deficit, Election 2008Leave a Comment

Hyped by a Drudge article, the conservative websites and the McCain campaign are attacking Obama over this, a radio interview on September 6, 2001, by then state legislator Barack Obama.  You can hear a heavily edited version on Youtube (this is what the conservatives are drooling over, but if you click on my first link, you'll see access to the entire interview).

According to the conservative spin, Obama said that it was a "tragedy" that the Warren Court didn't engage in redistribution of wealth.  Of course, Obama said no such thing.  Here is what he said — and I apologize if it is dry reading — but Obama was clearly in law professor/wonk mode:

You know, if you look at the victories and failures of the civil-rights movement, and its litigation strategy in the court, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote, I would now be able to sit at a lunch counter and order and as long as I could pay for it, I’d be okay, but the Supreme Court never entered into the issues of redistribution of wealth, and sort of more basic issues of political and economic justice in this society.

And uh, to that extent, as radical as I think people tried to characterize the Warren Court, it wasn’t that radical. It didn’t break free from the essential constraints that were placed by the Founding Fathers in the Constitution — at least as it’s been interpreted, and Warren Court interpreted it in the same way, that generally the Constitution is a charter of negative liberties: [It] says what the states can’t do to you, says what the federal government can’t do to you, but it doesn’t say what the federal government or the state government must do on your behalf.

And that hasn’t shifted, and one of the, I think, the tragedies of the civil-rights movement was because the civil-rights movement became so court-focused, uh, I think that there was a tendency to lose track of the political and community organizing and activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And in some ways we still suffer from that.

A caller then asks: “The gentleman made the point that the Warren Court wasn’t terribly radical. My question is (with economic changes)… my question is, is it too late for that kind of reparative work, economically, and is that the appropriate place for reparative economic work to change place?”

Obama replies:

You know, I’m not optimistic about bringing about major redistributive change through the courts. The institution just isn’t structured that way. [snip] You start getting into all sorts of separation of powers issues, you know, in terms of the court monitoring or engaging in a process that essentially is administrative and takes a lot of time. You know, the court is just not very good at it, and politically, it’s just very hard to legitimize opinions from the court in that regard.

So I think that, although you can craft theoretical justifications for it, legally, you know, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts.”

Now, I've highlighted some hey parts of the interview.  They are the same parts that conservatives are focusing on.  The thing is, in no way did Obama say that it was a tragedy the Supreme Court under Earl Warren never engaged in "resdistribution of wealth" changes.

What Obama said was a fact — that the Warren Court never entered into the issues of redistribution of wealth.

He then followed it with an opinion about the civil rights movement — i.e., that it was a tragedy that the civil rights movement became so court-focused.  It's a tragedy because that's not where you go to address economic disparity issues.

Obama reinforces that point again in response to the caller, saying (again) that he's not optimistic about trying to bring redistributive changes through the courts because it violates separation of powers, etc.

The bottom line?  Obama was saying that redistribution of wealth cannot — constitutionally — be brought about through the judicial system.  And it is wrong (indeed, "tragic", in the case of the civil rights movement) to even try.

In other words, hHe's saying that judges will not — and should not — legislate economic redistibrution from the bench.

What's so controversial about that?


As Obama campaign spokesman Bill Burton says:

Make no mistake, this has nothing to do with Obama’s economic plan or his plan to give the middle class a tax cut. It’s just another distraction from an increasingly desperate McCain campaign…. In the interview, Obama went into extensive detail to explain why the courts should not get into that business of 'redistributing' wealth. Obama’s point – and what he called a tragedy – was that legal victories in the Civil Rights led too many people to rely on the courts to change society for the better. That view is shared by conservative judges and legal scholars across the country.

But if you cherry-pick the interview, and match of the word "tragic" with other points Obama was making, then (so the Republicans hope) you've ginned up a controversy.

That's how desparate the McCain campaign is.  Manufacturing fake controversies from an interview given (which speaks for itself) eight years ago.

UPDATE:  Professor Bernstein summarizes the entire Obama interview, and explains (as I tried to do) that Obama was actually articulating judicial conservativsm as a proper dead-end avenue to social change/wealth redistribution. bernstein's bottom line: this is hardly anything for conservatives to get breathless about.