Palin The Socialist

A top legal advisor to Barack Obama, Harvard law professor Cass Sunstein, said today that Obama's 2001 remarks on "redistributive change" -- pushed hard on the right today -- are being misinterpreted, and that he was actually articulating "conservative" legal principles, and that the then-law professor's "law-speak" was being misinterpreted.

Obama's remarks came in a long interview on civil rights and Constitutional law with two other law professors on the Chicago public radio station WBEZ in 2001. (The full transcript is here, and audio is here.) Sunstein argued that Obama is discussing redistribution in a relatively narrow legal context: The discussion in the 1970s of whether the Supreme Court would create the right to a social safety net -- to things like education and welfare. He also noted that in the interview, Obama appears to express support for the court's rejection of that line of argument, saying instead that the civil rights movement should aim for the same goals through legislative action.

"What the critics are missing is that the term 'redistribution' didn’t man in the Constitutional context equalized wealth or anything like that. It meant some positive rights, most prominently the right to education, and also the right to a lawyer," Sunstein said. "What he’s saying – this is the irony of it – he’s basically taking the side of the conservatives then and now against the liberals."

The first mention of redistribution, which does not appear on the YouTube clip, comes when Obama discusses a 1973 Supreme Court ruling finding that there is no right to education.

"One other area where the civil rights area has changed... is at the state level you now have state supreme courts and state laws that in some ways have adopted the ethos of the Warren Court. A classic example would be something like public education, where after Brown v. Board, a major issue ends up being redistribution -- how do we get more money into the schools, and how do we actually create equal schools and equal educational opportunity? Well, the court in a case called San Antonio v. Rodriguez in the early '70s basically slaps those kinds of claims down, and says, 'You know what, we as a court have no power to examine issues of redistribution and wealth inequalities. With respect to schools, that's not a race issue, thats a wealth issue and something and we can't get into."

Later in the interview, Obama seemed to concur with conservative and mainstream liberal scholars on the court's more modest view of its powers:

"Maybe i am showing my bias here as a legislator as well as a law professor, but you know, I am not optimistic about bringing about major redistributive change through the courts," he said. "You know the institution just isn't structured that way. Just look at very rare examples where during he desegregation era the court was willing to, for example, order ... changes that cost money to local school district[s], 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 in terms of the court monitoring or engaging in a process that is essentially is administrative and takes a lot of time. The court is not very good at it, and politically it is hard to legitimize opinions from the court in that regard. So i think that although you can craft theoretical justifications for it legally, I think any three of us sitting here could come up with a rationale for bringing about economic change through the courts, I think that as a practical matter that our institutions are just poorly equipped to do it."

Obama did suggest in the interview that he favors "redistributive change," and that it should come though "political and organizing activities," and that's the discussion Republicans are jumping on, arguing that it shows the same philosophical impulse as Obama's now-famous commetn to an Ohio plumber that he favors "spread[ing] the wealth around."

"Now we know that the slogans 'change you can believe in' and 'change we need' are code words for Barack Obama's ultimate goal: 'redistributive change,'" said McCain advisor Doug Holtz-Eakin. "No wonder he wants to appoint judges that legislate from the bench – as insurance in case a unified Democratic government under his control fails to meet his basic goal: taking money away from people who work for it and giving it to people who Barack Obama believes deserve it. Europeans call it socialism, Americans call it welfare, and Barack Obama calls it change."

But Sunstein argued that in the context of a long, legalistic interview, the words referred to the narrower forms of redistribution -- education, legal filing fees, legal representation, and other issues -- that had been discussed in the case Obama cited and in discussions around it.

A University of Chicago law professor who appeared on the 2001 WBEZ program with Obama, and who also supports him, Dennis Hutchinson, described the interview as "not a bombshell."

"He's saying you dont achieve stable social change through judicial activism," Hutchinson said. As for "redistribution of wealth," "that's what a progressive tax system does," he said.

"It's two minutes and 17 seconds of what I could say in front of a class," he said, suggesting reporters go back to speculating about Obama's cabinet picks.

UPDATE: The legal scholars over at Volokh have a similarly underwhelmed take.