Professor Pragmatist Follow-up

The Bench Memos blog at National Review Online has a good post about the NY Times story I wrote about yesterday. Following are a few choice quotes. First, concerning the idea that consistency and principle aren't prized, and abstract theory -- more broadly, the act of abstraction itself -- isn't valued:
Consistency and principle are at the heart of all legal reasoning—and arguably "abstraction" is the indispensable tool in their service. Only by de-personalizing the legal issues before them—i.e., by abstracting from the personal qualities or situations of the parties—can judges do justice to them. After all, judges have been called on since 1789 to "solemnly swear or affirm, that [they] will administer justice without respect to persons, and do equal right to the poor and to the rich, and that [they] will faithfully and impartially discharge and perform all the duties incumbent on [them] . . . agreeably to the constitution and laws of the United States." If that isn't an explicit call for abstraction, principle, and consistency, I don't know what is. And the president isn't drawn much to such things? And this is supposed to be a good thing? [bold added]
On "minimalism" and Cass Sunstein:
As for Obama's being a "minimalist" who will appoint a "pragmatist," these terms sorely need some fleshing out. The most prominent exponent of "minimalism" on the Supreme Court is Obama's erstwhile Chicago colleague Cass Sunstein... At least since his 1999 book One Case At a Time, Sunstein has made the argument that the courts should not press too hard for too much social change all at once. But he argues this chiefly in order to avoid backlashes and to preserve the capacity of the courts to effect social change, regardless of whether the Constitution itself provides a rationale for the change in question. This "minimalism" would more accurately be called "gradualist maximalism"—the accretion of ever-greater power to the judiciary by baby steps... This is not what any traditional understanding of the judicial function would call "minimalism." [bold added]
Noting the apparent use of the term "pragmatism" to hide the attempt to put more power into the hands of the government, the author of the post, Matthew Franck, ends with a particularly good thought, stating that "Senators interested in exposing something interesting about President Obama's nominee should not be buffaloed by claims of "pragmatism," a notion that has been no friend to the Constitution or to the rule of law. "

And related to a point raised in the comments on my last post, he refers to the fact that Obama's allies were quoted in the NY Times piece: "They should probe the nominee for the very things the president is said—by his friends!—not to be interested in: principle, consistency, and abstraction."


Brian Fritts said...

During the campaign, I was looking at a couple of courses that Professor Obama taught while at the University Of Chicago. I also looked at a number of exam questions he used in his Constitutional Law classes.

It looked like a lot of the postmodern drivel that Law Schools allow diversity hires to teach. These are courses such as Race and the Law (which Obama taught). In addition, none of his Con Law final exams that I saw even addressed fundamental Constitutional analysis of the Enabling Clause and the Commerce Clause. I assume this is because there are no real limits on governmental power in the postmodern law school classroom.

There are always a number of classes and professors that law schools will not let you avoid, but for the most part, people follow their interests. Most people steer clear of classes taught to appease special interests, as everyone knows there are no grading standards, and that grades are usually based on the ability to placate the professor's pet theories.

In general, I found the Law Faculty to be worse than the University generally, as standards have really lapsed. Even while most Universities have slid in recent decades, you can usually find a number of professors or departments that still maintain some rationality.

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