Indeed, Epstein accuses Obama of deliberately keeping his views on controversial issues to himself so as to maintain his political viability. Here's the Times quote:
Nor could [Obama's] views be gleaned from scholarship; Mr. Obama has never published any. He was too busy, but also, Mr. Epstein believes, he was unwilling to put his name to anything that could haunt him politically, as [Lani] Guinier’s writings had hurt her. “He figured out, you lay low,” Mr. Epstein said.It's worth noting here that this charge has also been leveled against now-Chief Justice John Roberts by just about everybody who knew him as a lawyer in the Justice Department and later in private practice. In the case of Roberts, it's a plausible claim, mostly because having no stated views on controversial subjects is helpful in winning Senate confirmation as a federal judge or Supreme Court Justice. But while politicians do sometimes straddle issues, they also must come down firmly on one side or the other of a great many issues.
Consider the ultimate litmus test issue, abortion. I defy Professor Epstein (or anybody else) to find any pre-confirmation public statement by John Roberts clearly saying what he personally thinks about whether abortion rights should be constitutionally (or otherwise) protected. (I distinguish here 1) between positions Roberts took on behalf of the government versus those he took for himself; and 2) between saying what the law is versus what it should be.) By contrast, while Obama doesn't exactly emphasize abortion rights on the stump, he doesn't hide his position. Under issues affecting women on his campaign website, we find:
Barack Obama understands that abortion is a divisive issue, and respects those who disagree with him. However, he has been a consistent champion of reproductive choice and will make preserving women’s rights under Roe v. Wade a priority as President. He opposes any constitutional amendment to overturn the Supreme Court's decision in that case.Epstein's charge is further undermined by Obama's first book, Dreams From My Father, written while Obama was teaching at the University of Chicago Law School, and containing the impolitic admission that he smoked marijuana and occasionally used cocaine as a high school student. If Obama were nearly as calculating in his statements as Epstein claims, wouldn't he have worried more about that sort of admission than about whether his views on regulatory takings might become widely known?
I suspect that Epstein misattributes political motivation to Obama because he, Epstein, can't imagine that someone with Obama's brains and background wouldn't be interested in the sorts of things that interest legal academics. Surely Obama was capable of becoming a full-time law professor; he was brought to teach at Chicago in the first place because then-Professor (now federal appellate judge) Michael McConnell was impressed with the editing job Obama did on an article McConnell published when Obama was President of the Harvard Law Review. But some people who have the option of a life in legal academia choose otherwise. Go figure.
Posted by Mike Dorf