Barack Obama

Obama dissent gets thumbs up

Sunday, September 25, 2005

BY CAROL MARIN
SUN-TIMES COLUMNIST

If you were designing another one of those cable TV screamer shows like "Crossfire" or "The Capitol Gang," it seems to me you would never want Sen. Barack Obama as a guest. Too much thinking. Too little yelling. What would be the point?

I say this because I've just read and re-read Obama's rationale for voting against John Roberts. I think it should be required reading. Not because Illinois' junior senator decided to vote against the president's nominee for chief justice of the United States. It's the way Obama put his words and thoughts together that is so arresting.

''While adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court -- so that both a Scalia and a Ginsburg will arrive at the same place most of the time,'' said Obama, ''what matters on the Supreme Court are those 5 percent of truly difficult cases. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. And the last mile can only be determined on the basis of one's deepest values -- one's core concerns -- one's broader perspective on how the world works and the depth and breadth of one's empathy."

"In those 5 percent of really hard cases," Obama continues, "the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision."

Whether it's a case involving discrimination, or a woman's right to choose, or a disabled person's right to public access, in those cases, says Obama, "the critical ingredient will be supplied by what's in the judge's heart."

In the televised Judiciary Committee hearings at which Roberts testified, we sadly heard way too much about what was in the hearts of the senators, Republican and Democrat, who questioned him. The grandstanding of our public officials was not a pretty sight.

But it was equally difficult to understand much, if anything at all, about the interior man who testified before them. John Roberts gave little up. That, coupled by the refusal of the Bush administration to supply documents that might illuminate the judge's past legal work made it hard to know this nominee.

It's being argued that it's been just as hard in the last five years to know the Democratic Party, so often has it blended with the Republicans in behalf of going to war with Iraq or by failing to frame its own foreign or domestic agenda. And so some insist that Roberts' confirmation should be the line in the sand, the way for Democrats to again define who they are and declare where they stand.

The New York Times reported Thursday that liberal activist groups like Norman Lear's People For the American Way were urging a unified "no" vote.

I don't believe that Democrats marching in lockstep on the Roberts nomination accomplishes much. Rather, I think it contradicts something else Lear said that I do agree with: ''I really do believe down to my toes that the American people are looking for authenticity.''

Well, if you're looking for authenticity, it is represented by the evident struggle Democrats like Obama and Patrick Leahy of Vermont experienced over the nomination. Leahy, the ranking minority member on Judiciary, was harshly criticized by Lear's group when he announced he would vote for Roberts. Obama decried the attacks on Leahy as "knee-jerk, unbending and unfair."

Authenticity, to borrow Lear's word, is not served by the blue team lining up against the red team like it's ''Monday Night Football.'' Authenticity is served by thoughtful explanations of why some Democratic senators went one way while others did not, knowing full well that whatever they did, their votes on Roberts wouldn't matter. The Republicans in the Senate hold 55 cards. They've already won by the numbers.

And so it's the quality, not the quantity of dissent that counts.

If Hurricanes Katrina and Rita taught us nothing else, they showed us that the weakest and most vulnerable of us need the government's attention and protection. That while we live by majority rule, those in the minority -- whether defined by race, class, gender or disability -- deserve to have their rights defended. And the United States Supreme Court is often their last stop and only hope.

Obama and Leahy looked at the sum total of Roberts' available writings, rulings, public statements and personal style and arrived at different decisions that each clearly found difficult to make.

I hope Leahy is right about Roberts. I hope Obama is wrong. But what I thoroughly respect about each is how they respected each other and the process more than the sheer politics of the moment.