Saturday, January 24, 2009

Obama's Best and Brightest Law Professors

David Halberstam's The Best and the Brightest chronicled how a Kennedy Administration filled with great intellects could nonetheless blunder its way into the quagmire of Vietnam. With various pundits now reviving the term "best and brightest" for the Obama Administration (some without realizing this is no compliment), here I want to reflect on a potentially important difference between JFK's stable of intellectuals and BHO's, and to think through what exactly is wrong with selecting the best and the brightest. One point I would highlight is the prevalence of lawyers and law professors in today's Administration.

To begin, JFK's national security team--Halberstam's focus--were not lawyers: Walt Rostow was an economist; McGeorge Bundy was a government professor; and Robert McNamara was a business school professor (and Ford executive). It's true, of course, that some of Obama's "brightest" are not lawyers: Geithner, Summers, and Chu, for example. Others are lawyers but not law professors: most prominently Hillary Clinton. But the number of law professors is arresting, beginning with Obama himself, who, though not a legal scholar, is more steeped in legal academia than any prior President. Likewise, VP Biden has taught as an adjunct at the University of Delaware for many years and in his role on the Senate Judiciary Committee dealt with the sorts of issues that excite legal academics.

Then there's Elana Kagan as Solicitor General, assisted by Neal Katyal; there's Dawn Johnsen heading OLC, assisted by Marty Lederman and David Barron (either of whom would also have been plausible in the top spot); there's Cass Sunstein heading OIRA; and while Greg Craig as White House Counsel is a Washington insider, he is assisted by law professors Dan Meltzer, Trevor Morrison, and Alison Nathan (along with other merely elite lawyers). No doubt I'm overlooking additional law profs.

For the most part, these folks will not have national security portfolios, at least as conventionally defined. (Note that Janet Napolitano at Homeland Security is a serious lawyer, though.) Thus, direct comparisons to JFK's best and brightest are inapt. However, seeing Halberstam's book in broader perspective, one could draw the lesson that people with "book smarts" are not necessarily going to make wise policy choices. This idea dovetails nicely with a point Malcolm Gladwell makes in Outliers: People who are extraordinarily successful typically have high-level smarts, but above a certain threshold of smarts, additional intelligence per se is not a very good predictor of success. Generalizing from Halberstam and Gladwell, we might think that instead of seeking the best and the brightest, a President should look for "good enough and bright enough" people who have been proven to have excellent judgment. If so, then hiring people simply because they were stars in law school and became top law professors is a mistake.

But even if we credit the Halberstam-as-interpreted-via-Gladwell hypothesis, there are nonetheless two reasons to think that Obama's picks actually have the right qualities. First, I would argue that law professors are typically a little different from other academics in that they tend to be lawyers--that is, people with real-world experience. This point only goes so far, however: JFK's best and brightest had real-world experience too. Nonetheless, if we abstract a bit, the point I would make is that law professors are, on average, less head-in-the-clouds than university faculty in other disciplines.

Still, I acknowledge that, judged by the standards of ordinary humanity or even by the standards of practicing lawyers, law professors tend to be theoretically rather than practically oriented. But this brings me to my second point: The particular law professors Obama has chosen for his Administration are generally practical people with good people skills and judgment. They are, nearly to a one, "principled pragmatists" like Obama himself. That hardly guarantees success, but it does suggest that we need not worry too much about a repetition of the first "best and brightest" disaster.

Posted by Mike Dorf