Sarah Palin Is Not A Lawyer

…And I don’t expect her to be a lawyer. But the legal intertubes are still buzzing about Palin trying to B.S. her way through a Katie Couric question about Supreme Court cases other than Roe v. Wade with which she disagrees. And now a Fox News interview with her in which she identified Kennedy v. Louisiana, Kelo v. New London, and Exxon Shipping v. Baker, have people are arguing about whether it’s a good or a bad thing that she came up with answers later, after she had a chance to speak with other people.

Holy Krishna in the Eternal Fires, people, this isn’t a law school exam. She’s running for Vice-President. Is it absolutely necessary that the Vice-President be instantly fluent in contemproary Constitutional analysis? Or do you think she might be able to leave that to her own lawyers to help her out and the republic might not come to a crashing halt if she does?

Now, ask any non-lawyer, even very smart ones, this question: “Other than Roe v. Wade, are there any Supreme Court cases you can think of with which you disagree?. You won’t get a response that a lawyer would find hugely useful unless the lawyer was being charitable to the non-lawyer respondent. A very intelligent, very well-informed, conservative non-lawyer might be expected to say something like:

“The Court decided a case not too long ago that said it was OK for the government to condemn land and then just turn it over to a private developer. I disagree with that.” (Reference: Kelo v. City of New London.)

Or maybe a small step down from that, “I think we should execute rapists, especially when their victims are little kids.” (Reference: Kennedy v. Louisiana.)

Or, maybe, “Giving a terrorist in Guantanamo Bay all the same civil rights a regular person has here in the states. I think that was a bad idea and the law shouldn’t be that way.” (Reference: Boumediene v. Bush, not quite an accurate recital of the holding in that case.)

Go a step further down, and you might get something like “I think it was wrong of them to take ‘Under God’ out of the Pledge of Allegiance.” (Reference: Elk Grove Unified School District v. Newdow.) This is a step down from the Boumediene example I suggested because it gets the holding exactly wrong, not just a little bit. But it does demonstrate awareness of something that the Supreme Court was at least asked to do.

And I think we could all live with something like: “You know, I don’t know any particular case, or at least I can’t think of one off the top of my head right now. But it seems to me that the Supreme Court has made a lot of decisions that are out of step with what a whole lot of Americans would like to see.” (No specific reference.) This is a significant step down because it doesn’t even identify an issue, but at least indicates that there are some awareness that the Court makes decisions that are politically unpopular and evidences a desire for those decisions to be more harmonious with the political will of the people, which may not be a fully-informed understanding of the Court’s role, but it is an articulated, understandable political position to take.

And I for one will even accept: “Frankly, I’m not a lawyer. I’m sure that if I got to sit down and study the issue some, or if I had someone to help explain what the Supreme Court had decided recently, I could find some more decisions that we can talk about then.” Or, as Tina Fey playing Sarah Palin might say, “I’ll have to get back to you on that.” Seriously, that’s good enough when you’re talking about a subject beyond a person’s expertise.

I know a lot about law and politics, a fair amount about economics and history, enough about art both high and low to not humiliate myself at a cocktail party, an assortment of miscellaneous information I’ve learned in litigation, and not a whole hell of a lot about astrophysics or genetics. If I got put on the spot about who was doing the best research right now into the causes of Down Syndrome, and who should get their funding pulled, I’d have to do some research before giving an intelligent response. Even then, I’d probably only repeat what I was told by someone who had expertise in that field, and who I trusted. That would be, in most circumstances, an entirely reasonable thing for me to do.

So from a non-lawyer, any of these responses to a question about what cases one disagrees with would be acceptable. Frankly, from a non-lawyer running for high office, any of these responses to that question would be acceptable. I cannot fault Gov. Palin for not being instantly fluent with things the Supreme Court does – for most people, the Supreme Court is a pretty obscure and mysterious institution. If you don’t believe me, try playing this trivia game.

So that leaves us with the question of how to process Palin’s extemporize-your-way-through response to a question that she just didn’t know the answer to. Our choices are to assume that she:

A) Is just a bullshitter and tried to bullshit her way through a tough question

B) Forgot her preprogrammed talking points, or maybe was never fed talking points to regurgitate on that subject

C) Didn’t know any specific answer so she tried to explain what sorts of things she found objectionable about recent Supreme Court decisions in a very generalized sense, and maybe it didn’t come out all that fluid.

I’m leaning “C.” She may be out of her depth (and my review of the debate transcript does little to change that opinion) but this is an area where I can see a Vice-President being out of her depth without significant danger to the country – and a policy area in which the Vice-President would probably not be particularly active in government anyway, unless she became President in the event of the elected President’s death, in which case she could still rely on the advice of the Attorney General and other advisors around her and take her time to prepare a response to something the Court had done anyway.

Sure, it would have been better if she’d been super-honest and said something like “I’m not a lawyer and at the moment, I’m not really prepared to answer that question,” but in today’s world of “gotcha!” journalism and trivia politics, that might be too much to ask for, even from a “breath of fresh air” like her.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.