Hillary for Supreme Court?
Mon Jan 07, 2008 at 10:45:59 AM PDT
There’s been a lot of natural speculation throughout this campaign regarding which presidential candidates are actually running for other jobs. Bill Richardson for Vice President or secretary of state? Barack Obama for Veep? John Edwards for attorney general?
But most of that speculation seemed to presuppose that Hillary would actually be the Democratic candidate for president. And the question was what would become of all of these other candidates?
That seems a lot less likely now. I’m not counting her out, but clearly the inevitability of her campaign is no more. And that leads me to ask the question: if she’s not the nominee, what becomes of Senator Clinton?
The short answer is that she’d still be a senator. And it seems that New York will be more than willing to keep reelecting her to the Senate as long as she wants to serve. She could stick around, become an American elder stateswomen, a Teddy Kennedy for the 21st Century.
But with nothing but what I see and read about Hillary to guide me, I wonder whether she’d truly be happy with that.
Last month, the Wall Street Journal published an op-ed that suggested a President Hillary Clinton might nominated Bill Clinton to the Supreme Court. It prompted a predictable round of hand-wringing on the Right, and snickering in the press.
But it also got me thinking. If Obama (or Edwards) were to be our next president, what about the idea of nominating Hillary Clinton to the Supreme Court?
Upsides:
First, can you imagine a more satisfying dig at the VRWC than for them to celebrate Hillary’s downfall in the presidential campaign, only to turn around and find her with a lifetime appointment to the U.S. Supreme Court?
Second, there hasn’t been a politician on the court since Chief Justice Earl Warren, who left the court in 1969. Although Warren was a Republican, he was a liberal jurist by the standards of the day. He’d been governor of California, and he understood political power. Thus he understood the importance of wrangling unanimous decisions in cases like Brown v. Board of Education, the landmark school desegregation case. (If there had been a split decision in that case, racist politicians would have latched onto the dissents.) Hillary, more than anyone currently on the court, might understand that idea.
Third, the job simply seems much more up her alley than the Senate. Imagine Hillary Clinton freed from the pressures of reelection, freed from speculation that she is actually gunning for a higher political position. Imagine Hillary Clinton as one of the Nine instead of one of 100. I’ve never met Senator Clinton, but from what I read and see of her, I think she might simply be happier in this role, and more effective in the long term.
Ironically, she might face a much easier confirmation than you might expect. The Senate has a tradition of respecting its own when they’re up for judicial nominations and political appointments. And whatever opposition there is against her might well backfire against senators who would oppose her. If there is one thing the Clintons do well, it is to use political judo against their enemies. Just witness the fact that President Clinton was impeached but managed to leave office with a 65 percent approval rating!
Downsides:
First, she’s 60 years old now. The Republicans under George W. Bush have made a strategy of not only appointing reliable doctrinaire conservatives to the Court, but of appointing them early enough in their careers that they can serve for decades. Chief Justice Roberts, for example, is only 52 now! Alito is 57. Heck, even Clarence Thomas is a year younger than Hillary, and he’s already served almost 17 years on the court. So presuming she could be nominated and confirmed, Hillary might only serve for a decade or two at the most. That's not nothing, but it's not the 30 years or so that Roberts could conceivably serve.
Second, while she’d probably be a reliable, well-reasoned, generally liberal voice on the Court, Hillary is not exactly Ruth Bader Ginsburg. She’s been much more of a corporate-friendly, center-left Democrat in the Senate. It would be interesting to see whether she returned to a more liberal worldview and jurisprudence, if she were freed from the needs of reelection and appealing explicitly to big business. But at the same time, no president, whether it’s Obama or Edwards or someone else, wants to appoint an associate justice whose ideology is a bit of an unwritten book.
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