Shirley Sherrod, Dawn Johnson, ,and Lani Guinier

Sandy Levinson

I deeply fear that Barack Obama is replicating one of the worst aspects of Bill Clinton, which was a remarkable lack of loyalty to many of his friends and supporters (not to mention members of his cabinet to whom he lied through his teeth). The White House treatment of Shirley Sherrod was absolutely disgraceful, rushing to judgment and sacrificing Ms. Sherrod, who was publicly branded a racist by the Obama Administration--forget the fact that the ultra-right led the way, the Obama Administration is suppoed to reflect better values, including a commitment to due process before destroying people's careers--on the basis of grotesquely incomplete information. But, then, "disgraceful" also describes the Administration's treatment of Dawn Elizabeth Johnson, who would have been a terrific head of OLC and who was left twisting in the wind, on the basis of the right-wing fears that she was soft on torture (which was, for anyone following the controversy, far more important than the fact that she had worked for NARAL in the early '90s). The Administration never was willing to press for a full-scale Senate vote or, even more to the point, to give her a recess appointment. (Of course it's possible, though I almost hesitate to suggest this,that Rahm Emanuel was as appalled as the Republicans by the suggestions in some of Johnson's writings, that someone should actually be held accountable for the crimes of the Bush Administration. If there's one thing this Administration now seems to stand for, it is that accountability is "so 20th century.") And, of course, OLC still doesn't have an appointed- and confirmed-head. It has been ably lead, in the meantime, by David Barron, with the able assistance of Balkinization's own Marty Lederman, but rumors (I have not communicated with either Barron or Lederman about this) suggest that Lederman is returning to Georgetown and Barron to Harvard. This potential disorder at the OLC is a disgrace, and Barack Obama must bear the responsibility. [UPDATE: According to a 2:15 twitter from Charlie Savage, "It's official: Marty Lederman leaving OLC & returning to Georgetown law. W/ David Barron's return to Harvard = no more academics at OLC." This is good news for Georgetown and Harvard, but it's really terrible news for the rest of us, especially since one wonders if anyone of Johnson's, Lederman's, or Barron's stature will submit themsleves, in this completely poisonous atmosphere, to the circus of a Senate confirmation hearing with the knowledge that the Administration might well to do them (should they ever have expressed an opinion that runs counter to the conventional wisdom at Fox) what it did to Dawn Johnson.]

Carl Tobias, incidentally, has recently noted that Obama has yet to appoint anyone to fill the vanancies on the DC Circuit, the crucial circuit for anyone interested in administrative law, and, of course, this is part of a general pattern of what might be described as lassitude with regard to the judiciary. (Tobias has written a series of invaluable columns detailing this.) Obviously, the Administration, with justice, fears the mad-dog Republicans who now control the Senate, but one still might expect them to show some of the same kind of backbone that George W. Bush consistently demonstrated with regard to his nominations and nominees.

And this brings me back to one of the signal moments in the Clinton presidency, his stabbing his Lani Guinier in the back because of a vicious and totally unfair campaign against her on the editorial page of the mad-dog Wall Street Journal. I want to be clear about one thing: I don't necessarily hold it against Clinton that he withdrew the appointment. He could have made the political calculation that it wasn't worth it to fight for Prof. Guinier. But that would have led to a speech denouncing the sleazy and dishonest campaign against her and praising Prof. Guinier for putting country ahead of personal ambition and accepting, however reluctantly, his own decision that it would be best to find someone else to head the Civil Rights Division. Instead, Clinton said, in effect, that he had never read any of the work of his ostensible friend and nominee and was shocked to discover that the Wall Street Journal was basically right, that her ideas really were un-American. Anyone who knows her work knows as well that she consistently rejected simplistic race-based electoral districting in favor of far more imaginative proposals that would, in fact, serve to empower all sorts of minority groups (including, in the present context, the Tea Party). But Clinton wasn't interested in demonstrating any loyalty to Prof. Guinier; it was easier to sell her out.

At least it wasn't Obama who stabbed Ms. Sherrod; instead, it was Tom Vilsack, the able--and, based on the one occasion that I met him in Iowa, a very impressive man--Secretary of Agriculture who leapt to judgment. Did he really do it without checking with the White House? If he did, then perhaps it is he who should be fired, in order to demonstrate that such a total rush to judgment without waiting to find out the facts--convict first and ask questions later--isn't acceptable. But, of course, the worse thing about the Obama Administration for some of us who enthusiastically supported him in 2008 (and who, like myself, still believe that he is far better equipped to be a great president than anyone else now on the scene, including his former rival Hillary Clinton), is the extent to which it has replicated many of the stances of the Bush Administration with regard to conducting the "war on terror" (even if it is called by a different name).

Of course, one should be furious at Fox News for its "high tech lynching" of Shirley Sherrod. But, then, who is surprised when Fox gives aid and comfort to the worst in contemporary American politics. It's like hearing that a pit bull has bitten someone. But no one should let his/her anger stop with Fox. The Obama Administration should be viewing this as a wake-up call about its own behavior and about whether it has the backbone to merit the loyalty of its supporters in what will undoubtedly be one of the most vicious mid-term election seasons in American history, as a prelude to a similarly vicious 2012 election season.
Posted 10:22 PM by Sandy Levinson [link]