It’s a remarkable irony. Barack Obama is himself a lawyer, and came to power as a supposed champion of the “rule of law,” eloquently denouncing Bush administration terrorism policies (many of which he has subsequently adopted). Yet he and his team have actually shown breathtaking indifference about obeying and upholding the laws on the books.
Examples are legion. The President has presented a slew of nominees who admitted to making “mistakes” on their taxes; appointed Janet Napolitano to head Homeland Security despite her support for the flouting of US immigration laws; and dismissed the legitimate legal claims of Chrysler and GM bondholders while using the government takeover of the troubled car companies as an opportunity to enrich his union allies.
What’s more, in the wake of the Obama takeover of GM and Chrysler, serious questions are now being raised about whether decisions about car dealership closings are aimed at rewarding the administration’s friends and punishing its critics. And at the Obama Justice Department, political appointees recently overruled efforts by career prosecutors to bring charges against three Black Panthers who allegedly brandished a deadly weapon and engaged in voter intimidation on Election Day 2008.
So how, exactly, does one reconcile the President’s apparent indifference to the laws in general with his propensity for invoking the “rule of law” so frequently? Strangely enough, his nomination of Judge Sonia Sotomayor to the Supreme Court helps to provide the answer: It’s all about the President’s view of what the purpose of law actually is.
President Obama’s hand-picked Supreme Court nominee reflects his own view of law and adjudication. And with Sotomayor, the President has chosen a judge who believes that the Constitution and the law have no fixed meaning. Rather than deciding cases based on what the Constitution and other laws prescribe (whether they like the result or not), “empathetic” judicial activists like Sotomayor “reinterpret” the Constitution – and thereby rewrite the law – to conform to their own subjective notions of what constitutes a “good” outcome in a particular case.
Both the President’s and Sotomayor’s views of the law have clearly been influenced by Critical Legal Studies, a radical intellectual movement very much in vogue at Harvard Law School during Obama’s time there. In the view of the movement’s left-wing adherents (known as “Crits”), the law itself has no determinate meaning; rather, the meanings attributed to it simply reflect the (unjust) power relationships in American society. In other words, to the Crits, the law itself has no intrinsic moral authority that would make obeying it an ethical imperative. Instead, for them, it’s just another vehicle for advancing the political agenda of those who hold power.
If a President believes that the law is nothing more than a tool for achieving political objectives, it’s hardly surprising that he’d choose a Supreme Court nominee who is likely to use her position to advance policies that are too unpopular for him openly to espouse. Nor is it any wonder that he can ignore contract, bankruptcy, immigration, tax and election laws as the federal government moves inexorably to assume ever more authority over the free enterprise system and the lives of everyday Americans.