What about Obama? The evidence is curiously mixed. He displayed a sizable degree of enthusiasm for writing, but his published output is limited. His high school friends recall him as a facile writer of term papers. He submitted poems to his first college's literary magazine and at least one article to his second college's newspaper. None of them are terribly good, but he was young.
He steadily wrote in his diary. During his first sojourn in Chicago he wrote short stories (never published) that impressed his boss. Presumably, they were incorporated into Dreams from My Father. His friends at the time thought he might become a professional writer.
He contributed one chapter to a nonfiction book, After Alinksy, but the prose style is as ho-hum as the topic.
Although Wall Street was booming after he graduated from Columbia, the only private sector job he got was as a copy editor. Similarly, as a discrimination lawyer in Chicago, he rarely spoke in court, explaining later that his most of his jobs were more on the writing side.
On the other hand, as editor of the Harvard Law Review he passed up the traditional right to publish an essay, and only contributed one unsigned note. He appears to have been an acceptable editor of other people's writing, perhaps a little below average, although that might have been more from a desire to avoid political struggles that could impede his future career. There was a feeling in the next class that they wanted to elect an editor with a heavier blue pencil.
When he was elected the first black head of HLR, he was given a 6 figure advance to write a nonfiction analytical book on race and the law, but didn't deliver.
He then received a smaller advance for an autobiography, which he also struggled with, even going off to Bali to write. Eventually an elegantly written but soporific book, Dreams from My Father: A Story of Race and Inheritance, was published.
Jack Cashill has pointed out certain similarities with the works of Bill Ayers (a dull anecdote about which way the East River in New York flows, for example), and then makes the leap to asserting that the whole thing was written by Ayers. Celebrity biographer Christopher Anderson claims to have two sources who told him that Ayers provided much help to a stumped Obama, but the sources remain anonymous.
Whether Obama's difficulties is finishing his first book stemmed from the writing of it being beyond Obama's literary competence is a possibility. But there are others: for example, the sheer absurdity of being paid to turn his boring life into an autobiography at age 33; the problems of writing a life story filled with other characters who are still alive; and his need to avoid providing ammunition to future political opponents (which Dreams certainly succeeded at through the slipperiness of its prose).
When elected State Senator, Obama took on the curious assignment of being a regular columnist for the local Hyde Park newspaper and the Chicago black newspaper. Stanley Kurtz has read these columns in the library stacks, but they don't exist online.
Finally, in 2006 he published a competent campaign book, The Audacity of Hope, which was read over by 28 individuals before publication, so it's hard to figure out how much Obama contributed to it.
Moreover, there were numerous speeches during these years, most notably his keynote address to the 2004 Democratic convention.
In conversation, Obama is brilliant at restating the other person's point of view at least as well as they can state it themselves. This is the source of his "I have understood you" powers. On the other hand, he often stumbles when expressing his own views.
My best guess is that Obama is a competent writer whose innate urge to express himself is shackled by his fear that leaving a paper trail or spoken trail would undermine his enormous ambitions for power. (Surely, he noted the contrasting career paths of Supreme Court nominees Robert Bork and David Souter.)
That's why any samples of Obama prose are a welcome addition to our understanding of the President of the United States. One source that hasn't been much looked at are the elaborate essay questions that he gave his students at the U. of Chicago Law School from 1996 through 2003, which were linked to by the New York Times in 2008.
Perhaps these essay questions were actually ghostwritten by, say, Professor Lawrence Tribe under retainer from George Soros as part of a complicated plot to make Obama President twelve years later, but I suspect Obama banged them out himself, perhaps with a little help.
Here, for example, is one of the three questions from his 1996 test, along with his "Answer Memo:"
2) Fire Department Hiring.Obama's views seem to reflect his general boredom with the law as an agent of social change, in contrast to getting himself elected Mayor of Chicago.
The second major area of concern for the Mayor [of fictional Wazoo City, which resembles Chicago; the "Mayor" resembles Richie Daley] involves the method by which new firefighters are hired by the Fire Department. At the moment, only 15 percent of the cityâ€™s fire-fighters are African-American, despite the fact that the pool of applicants largely mirrors the general population of Wazoo City (50 percent African-American). It is well-established that up until 1980, the Fire Department engaged in discriminatory hiring practices; indeed, getting a job as a firefighter was based largely on your political connections to party ward bosses. As the result of several lawsuits brought by African-American plaintiffs, and a federal consent decree subsequently entered into by the city in 1980, the Fire Department now hires new firefighters exclusively based on each applicantâ€™s ranking on a written exam that is administered once a year. The examination is prepared and graded by a well-reputed testing firm that screens for any potential cultural bias in the examination, and all applicants are provided the necessary materials to prepare for the examination.
Despite claims by some of his supporters that the fire-fighter examination is rigged, the Mayor believes that the difference in test performance between African- Americans and whites is primarily the result of the inferior schooling that African- American applicants have received in the past. At the same time, the Mayor is skeptical that the existing written exam accurately measures aptitude for the job of being a firefighter. He therefore plans to announce that starting next year, Fire Department hiring will no longer be based on the applicants score on an extensive written examination. Instead, the Department will administer to each applicant a short basic aptitude test; all applicants who pass this simple test and meet other basic qualifications (physical examinations, etc.) will be deemed qualified for hire, and will then be selected to fill available job openings on the basis of a lottery. The Mayorâ€™s staff predict that as a result of this change, the makeup of the Fire Department, over time, will come to more closely resemble the racial makeup of the city.
The Mayor has a major political problem brewing, however: the Firefighterâ€™s Union has learned of the Mayorâ€™s plan, and is adamantly opposed to any change in existing hiring practices. The Union argues that the Mayorâ€™s plan represents nothing more than a disguised affirmative action program, and a return to old-fashioned patronage. The Union therefore plans to mount a major petition drive to place a binding referendum on the ballot in the next statewide election. The referendum would essentially require that all applicants for government employment in the State of Wazoo, including municipal employees, be hired on the basis of their ranked performance on state approved written examinations (the referendum would exempt the filling of certain â€?political appointeesâ€? from the requirement).
The Mayor points out that for the better part of this century, the city has had exclusive power to determine the manner in which it selects its employees. It is clear, however, that under the Wazoo State Constitution, a majority of voters may transfer this power to the state through the referendum process. The Mayor also believes that the referendum is likely to pass, particularly because it is phrased without reference to race or gender, but will be packaged solely as a â€?good governmentâ€? measure.
The Mayor asks you to write up a brief analysis regarding the possibility of challenging the referendum, should it come to pass, as unconstitutional racial discrimination violative of the Equal Protection Clause. As before, you should make the strongest argument that you can for bringing such a challenge, and then indicate the weaknesses in your argument. In considering this question, however, feel free to present to the Mayor any broader policy issues or theories of racial justice that are raised by his plan and/or the referendum.
Mayor Dwightâ€™s Firefighter Plan
This question offers a slight variation on the issues raised by the Mayorâ€™s contracting plan.
The surface parallels between our hypothetical and the fact pattern in Washington v. Seattle School Board should have been relatively easy to spot (Some of you also cited Romer, which isnâ€™t quite right - it was the lower court, and not the Supreme Court, that emphasized the â€?government restructuringâ€? aspects of the Colorado initiative. Still, I gave you credit if your analysis tracked the discussion below, albeit citing the wrong case). Like the voter initiative in Seattle, the referendum being proposed by the union appears to single out an issue of special interest to blacks - in our case, fire department hiring practices — and attempts to shift decision decision-making power over that issue from the local to the state level. According to Seattle, the fact that a state has the authority to make such a shift isnâ€™t be relevant; a restructuring of the political process to make passage of â€?race legislationâ€? more difficult than other forms of legislation places â€?special burdens on racial minorities within the governmental process,â€? in violation of Equal Protection Clause.
But is the Mayorâ€™s plan in fact legislation/decision-making of a â€?racial natureâ€? as that term is used in Seattle? And, even if the Mayorâ€™s plan can be considered â€?racialâ€? in nature, does that automatically render a facially race-neutral referendum that disallows the plan a â€?racial classificationâ€? subject to strict scrutiny?
These are tricky questions, mainly because Justice Blackmunâ€™s opinion in Seattle lends itself to at least two very different readings. On the one hand, it is possible to argue that for all its fancy talk about government restructuring and democratic processes, Seattle is really just a straight-forward disparate impact case that was settled using the principles set out in Washington v. Davis. Under this reading, the Seattle School Boardâ€™s busing program was an explicitly raced-based effort to vindicate the rights of black schoolchildren to .a non-segregated education. By forbidding busing to achieve this explicitly racial purpose (while still permitting busing for various non-racial reasons), Initiative 350 disproportionately impacted black schoolchildren; and although the initiative may have been framed in race-neutral terms, the Court determined — based on the sequence of events, the initiativeâ€™s alteration of normal procedural. practices; and so on., (i.e., the Arlington Heights factors discussed above) — that the initiative was enacted â€?because ofâ€™ and not â€?in spite ofâ€™ its adverse effect on black schoolchildren.
If this reading of Seattle is correct, and the facially race-neutral referendum being proposed by the union is simply subject to the Washington v. Davis test for intentional discrimination, then the Mayor will have real problems mounting a successful court challenge. After all, not only is the referendum written in non-racial terms, but the Mayorâ€™s plan is also facially race-neutral.
The Mayor might argue, of course, that although written in race-neutral terms, his plan really benefits blacks, and that the unionâ€™s referendum is therefore an act of intentional discrimination designed to keep the Cityâ€™s Fire Department predominately white. But given the fact that the referendum appears to uphold the very principles of â€?merit through testingâ€? that the Court in Washington v. Davis found to be so persuasive, it is hard to imagine that a court in this case would be willing to find that the voters of Wazoo voted to uphold such principles â€?because of,â€? rather than â€?in spite ofâ€™ its effect on future black hiring (as a number of you pointed out, examining a referendum under Washington v. Davis also raises serious issues regarding whose intent we are suppose to examine). The fact that the current test being used appears to have been â€?validatedâ€? through the consent decree process further weakens the Mayorâ€™s argument. Indeed, in light of the courtâ€™s acceptance of testing as a legitimate means to measure merit and upgrade the workforce (were dealing here only with Equal Protection doctrine, and not Title VII law), it is conceivable that a court would sooner find the Mayorâ€™s effort to change the testing procedure to be an impermissible affirmative action program than it would strike down the referendum as an impermissible racial classification.
There is another, no doubt more controversial way to read Seattle. The argument would go something like this: Seattle recognizes that blacks are burdened not only by intentional racism, but also by facially neutral processes that nevertheless place blacks in a structurally subordinate position. Thus, anti-discrimination legislation of the type at issue in Hunter v. Erickson (in that case, a fair housing ordinance) is not the only type of legislation that is â€?racialâ€? in nature; blacks may also seek to extract through the political process affirmative programs - like the voluntary busing program in Seattle - that may not be constitutionally required, but that nevertheless help alleviate structural inequality. Precisely because such affirmative programs are not constitutionally required (given the Courtâ€™s â€?negative charter of libertiesâ€? reading of the Constitution and theories of judicial restraint), a majority of voters may choose not to enact such programs, and may even choose to repeal those programs that the majority feels have outlived their usefulness. What the majority cannot do is to change the rules of the game so as to make it more difficult for blacks and other minorities to achieve such affirmative programs through the give and take of the democratic process - by resort, for example, to state-wide initiatives and referendums in which minority influence is lessened.
If a court were willing to accept such a reading of Seattle, then the Mayor might have a chance at defeating the referendum. The Mayor could argue that once you get beyond certain baseline constitutional requirements of fairness - i.e. no outright discrimination on the basis of race, gender, religion, sexual orientation, etc. — there are no pre-political, non-racial, â€?legitimateâ€? ways to select a tire department or determine â€?merit.â€? The Mayorâ€™s plan is â€?racialâ€? in the sense that it represents an affirmative effort to increase black representation on the police force without resorting to quotas or lowering standards of performance; at the same time, it is no more racial than is the unionâ€™s plan to maintain the status quo through a regime of written examinations. The union is free to debate the pros and cons of the Mayorâ€™s plan in the public square; it can put pressure on the City Council to block the Mayorâ€™s proposal, and can organize to vote the Mayor out of office. What it cannot do is shift decision-making over these racially-charged issues to the state level, where (we assume) blacks have less of political clout.
There are problems with this argument, of course, the most obvious being the one that was raised by the state in Seattle - namely, if the â€?rulesâ€? of democracy in a given state include the possibility of state-wide initiatives and referendums, and if the â€?rulesâ€? of democracy also envision the state imposing its sovereign will on local governments within its borders, then in what sense does the initiative in Seattle, or the referendum in our hypothetical, change the rules of the game? If states and their voters canâ€™t decide, through democratic processes sanctioned by that stateâ€™s constitution, to take certain decisions that happen to touch on race out of the hands of localities, then is there any limit to the state legislation that might be potentially overturned? To cite just one example, how do we evaluate state legislation that places property tax caps on localities? Such caps prevent localities from raising taxes to fund public schools beyond a certain level without a majority vote, and presumably has a disproportionate impact on black populations that are both younger and more likely to rely on public, as opposed to private, education. Are they unconstitutional under Seattle?
The bottom line is that such an expansive view of Seattle would implicitly overturn the intent-based approach to evaluating racial issues embodied in Washington v. Davis. My personal guess is that the current Supreme Court would almost certainly shy away from such a reading of Seattle. Of course, we wonâ€™t have to guess on the Courtâ€™s position for long, since it is precisely these sorts of arguments that will come up in the current challenge to Californiaâ€™s Proposition 209, which bars state government from engaging in any form of affirmative action.
But, as writing, they seem competent