The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I purchased the kindle of President Obama's new memoir, A Promised Land. [Update: This memoir only captures his presidency through 2011. I removed references to the absence of any discussion of cases decided after 2011]. As part of research for my own book project, I searched for several key words. "Court," "Justice," and the names of each member of the Court. I was struck by how little Obama focused on the judiciary in his 750-page memoir. There was very, very little to find.
What was there?
Two sentences on Justice Alito's Ledbetter decision:
As discrimination cases go, it should have been a slam dunk, but in 2007, defying all common sense, the Supreme Court had disallowed the lawsuit. According to Justice Samuel Alito, Title VII of the Civil Rights Act required Ledbetter to have filed her claim within 180 days of when the discrimination first occurred—in other words, six months after she received her first paycheck, and many years before she actually discovered the pay disparity.
Obama, Barack. A Promised Land (p. 234). Crown. Kindle Edition.
We learn that Justice Souter called Obama in April 2009 to announce his retirement:
THE SECOND TURN of events was an opportunity rather than a crisis. At the end of April, Supreme Court justice David Souter called to tell me he was retiring from the bench, giving me my first chance to fill a seat on the highest court in the land.
Obama, Barack. A Promised Land (p. 387). Crown. Kindle Edition.
Obama confirmed that Kagan and Wood were on the short-list for the Souter seat, but Sotomayor won out.
The short list included former Harvard Law School dean and current solicitor general Elena Kagan and Seventh Circuit appellate judge Diane Wood, both first-rate legal scholars whom I knew from my time teaching constitutional law at the University of Chicago. But as I read through the fat briefing books my team had prepared on each candidate, it was someone I'd never met, Second Circuit appellate judge Sonia Sotomayor, who most piqued my interest.
Obama, Barack. A Promised Land (p. 389). Crown. Kindle Edition.
I think this barb at the "legal priesthood" is a not-so-subtle rebuke of Laurence Tribe.
Sotomayor graduated from Yale Law School and went on to do standout work as a prosecutor in the Manhattan district attorney's office, which helped catapult her to the federal bench. Over the course of nearly seventeen years as a judge, she'd developed a reputation for thoroughness, fairness, and restraint, ultimately leading the American Bar Association to give her its highest rating. Still, when word leaked that Sotomayor was among the finalists I was considering, some in the legal priesthood suggested that her credentials were inferior to those of Kagan or Wood, and a number of left-leaning interest groups questioned whether she had the intellectual heft to go toe-to-toe with conservative ideologues like Justice Antonin Scalia.
Maybe because of my own background in legal and academic circles—where I'd met my share of highly credentialed, high-IQ morons and had witnessed firsthand the tendency to move the goalposts when it came to promoting women and people of color—I was quick to dismiss such concerns. Not only were Judge Sotomayor's academic credentials outstanding, but I understood the kind of intelligence, grit, and adaptability required of someone of her background to get to where she was.
Obama, Barack. A Promised Land (pp. 389-390). Crown. Kindle Edition.
And Obama devoted one whole sentence about selecting Kagan to fill the Stevens seat:
Along with the usual terrorist threat briefings, strategy sessions with my economic team, and a slew of ceremonial duties, I interviewed candidates for a Supreme Court seat that had opened up after Justice John Paul Stevens announced his retirement in early April. I settled on the brilliant young solicitor general and former Harvard Law School dean Elena Kagan, who, like Justice Sotomayor, would emerge from the Senate hearings relatively unscathed and be confirmed a few months later.
Obama, Barack. A Promised Land (p. 566). Crown. Kindle Edition.
Brilliant and young. Only two adjectives to spare.
President Trump's tenure was largely defined by the Supreme Court. For President Obama, the Supreme Court was an afterthought.