More Myth-Making of the "Pragmatist" Obama

In the wake of Supreme Court Justice David Souter's surprise retirement announcement, the Times tried to read Obama's past in deciding what sort of Justice he'll appoint as Souter's replacement. The paper's conclusion was no surprise: Jodi Kantor's front-page profile, "As a Professor, Obama Held Pragmatic Views on Court," predicted Obama would promote a "pragmatist," just like himself.



The myth of Obama the judicial pragmatist first surfaced in May 2008, before the election, in an amazingly biased speculative piece by legal reporter Neil Lewis. In that piece, Lewis cited liberal Harvard professor Charles Ogletree: "Prof. Charles J. Ogletree Jr. of Harvard Law School, who taught both Mr. Obama and his wife, Michelle, sought to dispel the idea that Mr. Obama's nominees would be especially ideological."



On Sunday, Kantor also quoted the unlabeled liberal Ogletree to refute the argument that Obama would appoint a wild-eyed liberal to the court:


Many American presidents have been lawyers, but almost none have come to office withBarack Obama's knowledge of theSupreme Court. Before he was 30, he was editing articles by eminent legal scholars on the court's decisions. Later, as a law professor, he led students through landmark cases from Plessy v. Ferguson to Bush v. Gore. (He sometimes shared his own copies, marked with emphatic underlines and notes in bold, all-caps script.)


Now Mr. Obama is preparing to select his first Supreme Court nominee to replace retiring JusticeDavid H. Souter. In interviews, former colleagues and students say they have a fairly strong sense of the kind of justice he will favor: not a larger-than-life liberal to counter the conservative pyrotechnics of JusticeAntonin Scalia, but a careful pragmatist with a limited view of the role of courts.


"His nominee will not create the proverbial shock and awe," said Charles J. Ogletree, aHarvardprofessor who has known the president since his days as a student.


A text box reduced the liberal Ogletree's opinions to plain fact: "Obama's choice for a vacancy 'will not create the proverbial shock and awe."


Kantor hammered home the idea that Obama, who favors partial-birth abortion, is actually some kind of moderate on issues that would appear before the Supreme Court:


Former students and colleagues describe Mr. Obama as a minimalist (skeptical of court-led efforts at social change) and a structuralist (interested in how the law metes out power in society). And more than anything else, he is a pragmatist who urged those around him to be more keenly attuned to the real-life impact of decisions. This may be his distinguishing quality as a legal thinker: an unwillingness to deal in abstraction, a constant desire to know how court decisions affect people's lives....Pragmatism has its detractors, and in a confirmation battle, Mr. Obama's nominee could face charges that he or she does not give enough weight to formal law. But although Mr. Obama is results-oriented, he retained an overall skepticism for what courts can accomplish, said David Strauss, a former colleague at University of Chicago.


Even the headline to the jump page read: "In Class, Pragmatic View Of the Supreme Court."