As a professor, Obama a pragmatist about the Supreme Court

Many U.S. presidents have been lawyers, but almost none have come to office with Barack Obama's knowledge of the Supreme 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 is preparing to select his first Supreme Court nominee to succeed departing Justice David Souter. Former colleagues and students said 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 Justice Antonin 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 Ogletree, a Harvard professor who has known the president since his days as a student.

Obama thinks the court must never get too far ahead of or behind public sentiment, former colleagues and students said. He may have a mandate for change and Senate confirmation odds in his favor.

His view of law

But he has almost always disappointed those who expected someone in his position — he was Harvard's first black law-review president and one of the few minority members of the University of Chicago's law faculty — to side consistently with liberals.

Former students and colleagues described 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.

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 desire to know how court decisions affect people's lives.

"The University of Chicago was and is full of eminent theorizers who wrap up huge areas of the law by applying some magic key," said David Franklin, a former student. "He didn't do any of that; he wasn't interested in high theory at all."

Though Obama rarely spoke of his own views, students said they sensed his disdain for formalism, the idea — often espoused by justices Scalia and Clarence Thomas — that law can be decided independent of the political and social context in which it is applied. To make his point, Obama, then a state senator, took students with him to Springfield, Ill., the capital, to watch hearings and see him hash out legislation.

He asked constant questions about legal consequences: What would happen if a mother's welfare grant did not increase with the birth of additional children? As a state legislator, how much could he be influenced by a donor's contribution?

Ex-students weigh in

Former students said Obama does not particularly prize consistency or broad principle. Adam Bonin arrived in Obama's voting-rights class believing that drawing districts to ensure minority representation should be illegal. "It struck me as wrong that the Legislature should pick and choose what interests should be represented in the Legislature," Bonin said.

"What I took from the class and the reading materials was the reality that unless these voices are physically present in a Legislature, they won't be heard," he said.

When it came to sentencing laws, Obama led Bonin in a more conservative direction than the student had expected. The primary victims of black criminals were fellow blacks, and so minority neighborhoods had an interest in keeping sentencing laws tough, he taught.

Pragmatism has its detractors, and in a confirmation battle, Obama's nominee could face charges that he or she does not give enough weight to formal law. But although Obama is results-oriented, he retained an overall skepticism for what courts can accomplish, said David Strauss, a former colleague at University of Chicago. In Obama's due process and voting-rights classes, he showed students the broad failures of Reconstruction-era amendments that tried to establish equality for blacks.

Geoffrey Stone, a former dean of the University of Chicago Law School, said Obama often expressed concern that "democracy could be dangerous, that the majority can be " 'unempathetic' — that's a word that Barack has used — about the concerns of outsiders and minorities."

When a student asked Obama to name the circuit judge he would most like to argue in front of, he named Richard Posner, a conservative. Posner was smart enough to know when you were right, Obama told the class.

Obama's selection of a new justice may challenge him in a way that running a law review and teaching law never did. Both jobs were about cultivating robust debate, about encouraging multiple viewpoints. Now he must settle on a single legal thinker, for now.

A chance for change

Some of the names he is considering for the job reportedly include recently confirmed Solicitor General Elena Kagan; U.S. Appeals Court Judges Sonia Sotomayor, Kim McLane Wardlaw, Sandra Lea Lynch, Diane Pamela Wood and M. Margaret McKeown; and Leah Ward Sears, chief justice of the Georgia Supreme Court.

Massachusetts Gov. Deval Patrick; Harvard Law professor and Obama administration nominee to head the Office of Information and Regulatory Affairs, Cass Sunstein; and U.S. District Judge Ruben Castillo of Chicago also have been mentioned, as has Washington Gov. Chris Gregoire.

In class, Obama liked to tell students that the Supreme Court was not as far off as it seemed, that it was a dynamic institution that they should not be afraid to challenge and change.

Material from The Seattle Times archive is included in this report.