(Guest Post by Bill Dyer a/k/a Beldar)

Since Sen. Barack Obama's comment in a rope-line interview with Joe the Plumber about his belief that it's good to "spread the wealth," Republicans have been looking for more examples of such comments.

At the beginning of the Bush-43 Administration, while John Ashcroft's nomination as Attorney General was a hot topic in the news and among legal pundits in particular, Gretchen Helfrich of Chicago Public Radio, WBEZ-FM, hosted an hour-long panel program on January 18, 2001, as part of her "Odyssey" series. The title of this particular program was The Court and Civil Rights, and the participants were law professors Susan Bandes from DePaul and Dennis Hutchinson from Chicago, along with senior instructor Barack Obama from Chicago.

Kathyrn Jean Lopez at The Corner has linked an audio excerpt of just over four minutes which appears on YouTube, featuring the now-familiar voice of Barack Obama.

Unfortunately, I think K-Lo has in some ways made more of this audio than can actually be supported. It is not the kind of clear and unambiguous slip-up that Obama made when talking to Joe the Plumber in the rope-line. Fairly considered in context, this radio program demonstrates Obama's recognition that the Warren Court failed to redistribute America's wealth. It should, however, be deeply troubling to conservatives on a more fundamental level: Even back in 2001, Barack Obama was already focused on building a "coalition of power" in the executive and legislative branches that could indeed bring about a national redistribution of wealth which even the most activist courts couldn't achieve on their own.

Here's my transcription of the edited excerpt that K-Lo linked, interspersed with my comments about the context:

OBAMA: You know, if you look at the victories and failures of the civil rights movement and its litigation strategy in the courts, I think where it succeeded was to vest formal rights in previously dispossessed peoples. So that I would now have the right to vote. I would now be able to sit at a lunch counter and order and, as long as I coud pay for it, I would be okay. But the Supreme Court never ventured into the issues of redistribution of wealth, uh, and sort of more basic issues of political and economic justice in the society.

And uh, to that extent, as radical as I think people try to characterize the Warren Court, uh, it wasn't that radical. It didn't break free from the essential constraints that were placed, uh, uh, by the founding fathers in the Constitution, at least as it's been interpreted, and [the] Warren Court interpreted it in the same way that — that generally, the Constitution is a charter of negative liberties. [It] says what the states can't do to you. It says what the federal government can't do to you.

But it doesn't say what the federal government or the state government must do on your behalf.

Uh, and that hasn't shifted, and one of the, uh, I think, the tragedies of the civil rights movement was, um, because the civil rights movement became so court-focused, I think that there was a tendency to lose track of the political and community organizing and, and — activities on the ground that are able to put together the actual coalitions of power through which you bring about redistributive change. And uh, in some ways we still suffer from that.

This discussion came up in the context of a comment by Prof. Hutchison to the effect that 1970s attempts to use federal due process rights to force face-to-face hearings before cutting off welfare benefits — instead of their intended effect of forcing the payment of more welfare benefits — had ended up forcing more money to be spent on face-to-face administrative hearings. Then state-senator and con-law lecturer Obama was agreeing with Prof. Hutchinson that the Fourteenth Amendment's due process clause had largely failed as a potential instrument of wealth redistribution through federal court litigation.

But K-Lo is stretching too far to say that Obama was "also lament[ing] that the Warren Court was not liberal enough." He did say that it was not as liberal as some people have claimed, which is true. And his only explicit point —a correct one, I think — was simply that even during the Warren Court's most activist civil rights decisions, it was still generally refusing to get into the subject of redistribution of wealth. Nevertheless, he also seemed very sympathetic — as with the "we still suffer from that" remark — to the idea that redistribution of wealth is a fine goal, even if it wasn't one that the Warren Court itself had pursued. And there's no other way to read his statement that the failure of courts to achieve that goal during the days of blockbuster civil rights lawsuits was a "tragedy."

Continuing on with the audio excerpt:

HELFRICH: Let's talk with Karen. Good morning, Karen, you're on Chicago Public Radio.

KAREN: Hi, um, the gentleman made the point that the Warren Court wasn't, uh, terribly radical. My question is — um, with economic changes. My question is: Is it too late for that kind of reparative work economically and is that the appropriate place for reparative economic work to take place?

HELFRICH: You mean the Court?

KAREN: The courts, or would it be legislation at this point?

OBAMA: You know, maybe I'm showing my bias here as a legislator here as well as a law professor, but you know, I'm not optimistic about bringing about major redistributive change, uh, through the courts. You know, the institution just isn't structured that way.

You know, just, um, look-it, with very rare examples, during the desegregation era, the Court was willing, for example, to order, you know, changes that cost money to a local school district. And the Court was very uncomfortable with it. It was hard to manage. It was hard to figure out. You start getting into all sorts of separation of powers issues, you know, in terms of the Court monitoring or engaging in a process that essentially is administrative and — and takes a lot of time.

Um, you know, the Court's just not very good at it. And politically, it's just, it's very hard to legitimize opinions from the, uh, the Court in that regard.

And so I think that, athough you can craft theoretical justifications for it legally, and I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts ....

My first concern, upon listening to the five-minute excerpt, was that it might have taken Obama's statements out of context. But I've listened to the entire hour. It's the sort of thing that probably bored 99% of even a PBS audience, including a large number of lawyers. But whoever edited down the excerpt didn't take anything directly out of context except, arguably, for the concluding sentence, which cuts off in the middle. The conclusion is:

... I think that as a practical matter our courts are just poorly equipped to do it.

There's one additional short passage, from earlier in the broadcast, that's arguably on the same topic:

OBAMA: There's one other interesting level in which the results of the civil rights movement have changed what's happened, at that is at the state level. I.e, you now have state supreme courts and state constitutions and state laws that in some ways have adopted the ethos of the Warren Court. So, uh, uh, uh, a classic example would be something like public education, where after Brown versus Board of Education, a major issue ends up being redistribution — how do we get more into the schools. And how do we actually create equal schools and equal educational opportunity. Well, the Court in a case called San Antonio Schools versus Rodriquez in the early seventies basically slaps those kind of claims down and says, You know what? We as a court basically have no power to reexamine issues of redistribution and wealth inequality with respect to schools. That's not a race issue, that's a wealth issue, and we can't get into this.

HUTCHINSON: The federal Constitution doesn't provide any warrant for intervention.

OBAMA: Exactly. So but what's interesting is that suddenly, a whole bunch of folks start bringing these claims in state courts, under state constitutions that call for equal educational opportunity. And you see state courts with mixed results, being more responsive to it. The reason I think that's relevant is not to say that I'm not worried about the lack of protections coming from the Supreme Court, but it is to say though that you've got a cultural transformation that changes how states think about the protection of individual rights in ways that didn't exist prior to the Warren Court, and that, I think, is an important legacy to keep in mind.

This, again, is an indisputably correct observation about trends in the law — a trend that one might infer Obama agrees with. But in fairness, that's an another inference rather than something he's stated in so many words.

So what, if anything, to make about all of this?

First: Obama is a bright and clever fellow, articulate and well-spoken, and familiar with both the broad outlines and a fair amount of detail on the subject of constitutional law. In this respect, he is a vastly more impressive legal scholar than, for example, Joe Biden, who in countless Senate Judiciary Committee hearings and most recently in the vice presidential debates has proved himself to be entirely worthy of his law school class rank (76th out of 85). That is not at all inconsistent, however, with Sen. Obama being a hard-core leftist: Among the smartest and most genial law professors I had was Mark Tushnet, then an avowed Marxist and still among the most radical members of America's legal academy.

Second: As with the examinations he wrote for his Chicago Law School classes, Obama usually displays a good educator's gift of flagging controversial issues for discussion without necessarily committing as to his own views on those issues. I wish that I could agree with K-Lo that in this program, Obama "unequivocally embraced 'redistribution' of wealth several times." But that's a bit too strong a statement. Indeed, in fairness, he clearly expressed skepticism — "as a legislator here as well as a law professor" — for the notion that it ought to be the courts which accomplish that redistribution of wealth. Still: Obama seemed very receptive to the notion that redistribution of America's wealth would be a good idea, and his use of the word "tragedy" is strong evidence that he supports that goal, even if it's not practical for it to be accomplished by the courts.

Third: That he does not see the federal courts as the preferred means of redistributing wealth does not at all mean that he's a judicial conservative or anything like that. To the contrary, the SCOTUS Justices who he's pointed to as models, in the mold of whom he'd choose additional federal judges, are those who are most activist, in the tradition of the Warren Court at its most politically and judicially liberal. The precise danger of appointing more federal judges and, particularly, Supreme Court Justices like Justice Ginsburg is that they'll take the huge issues on which there is the most fierce political debate among the electorate and in the legislative and executive branches — issues like abortion rights and gay marriage — and stake out positions there which (a) can't be undone without constitutional amendments or massive changes in the courts, and which (b) will then force the legislatures and state agencies to come in behind them and do the "administrative fill-in" to thoroughly implement those newly decreed "constitutional rights."

Fourth: This entire broadcast is entirely consistent with my worst fears about Obama. He understands precisely how to advance a hard-line liberal agenda in each brach of government. Redistribution of wealth is something best suited to a hard-left president and Congress to accomplish, working hand-in-glove. And for the giant leaps — the things which not even a left-of-center executive and legislature can accomplish — the president gets to appoint activist judges.

The reason for conservatives and moderates to be concerned about Barack Obama is not simply that he's a hard-left liberal — it's that he's an ambitious and talented hard-left liberal. He's seen where the Warren Court fell short. Barack Obama is now literally only days away from, in his words from this radio program, possibly "put[ting] together the actual coalitions of power through which you bring about redistributive change." Of that, we ought to all be duly terrified.