Bubba on the Supreme Court … don’t totally rule it out
By Nick Ragone | Related entries in News
Trivia question: Who were the last three Supreme Court justices to be appointed by Democratic presidents? The most recent are pretty straightforward — both Ruth Bader Ginsburg and Stephen Breyer still serve on the high court. But prior to that, it had been over 40 years since Lyndon Johnson appointed Thurgood Marshall as the first African-American justice.
President Barack Obama finds himself in the enviable position of likely having multiple Supreme Court appointments during his first term — at least one for certain with the retirement of Justice David Souter. Enviable because, with the Democrats filibuster-proof majority in the Senate (once Al Franken takes his seat), the president will face scant opposition to whomever he nominates to the court — a luxury that few presidents have been afforded.
But the real question: will President Obama take advantage of this unique moment — he has a 20-vote majority in the Senate, sky high approval ratings, and the political winds at his back — to make a truly game changing selection? Or will he be content to find a justice that simply ‘checks all the boxes’ –someone that satisfies the numerous political considerations that go into these picks.
If the early “short lists” are any indication, it seems like the overwhelming consideration is nothing more than gender. The names most frequently mentioned — Appeals Court Judges Sonia Sotomayor and Diane Wood, Solicitor General Elena Kagan, and Georgia Supreme Court judge Leah Sears — are all woman, and the overwhelming expectation among beltway insiders is that the next justice will come from that cohort. The smart money is on a minority woman, and for that reason Sotomayor is the prohibitive favorite, mostly because she would solidify Obama’s standing with Hispanic voters, a group that he’s struggled with at times. Leah Sears would be only the third African-American to sit on the court, and is a strong possibility, too.
But would any on the short list really be a game changer — someone who could reshape the court in their image the way Earl Warren, and Thurgood Marshall, and now Antonin Scalia have?
They’re all capable jurists and would cast a reliability liberal vote, no question about it. But for years the Democratic faithful have been lamenting how the liberal bloc has lacked a booming presence — a first rate intellectual with the personality and persuasion to match — who could act as a foil to Scalia and Thomas, and chart a new direction for the court. In many ways, the court has become as much a political institution as a judicial one; these days, landmark decisions tend to be born of bold thinking, political calculations, and risk taking more than stare decisis, and it’s uncertain if the names being bandied fill that bill.
However, one name not being discussed does fit the mark: Clinton — both Bill and Hillary. Were Hillary not the secretary of state, she would be an obvious choice and the overwhelming frontrunner; she’s the perfect combination of political acumen, legal heft, and spirited debater that the left so desperately wants to see on the court. Don’t rule her out for future consideration; she may still find herself on the court someday.
The more tantalizing and interesting pick would be Bill Clinton. It would be an unusual — ok, highly unusual — selection, but not without precedent: William Howard Taft served as chief justice for nearly a decade after he left the presidency.
Having the greatest politician in generations on the Supreme Court would certainly qualify as a game changer. Is there any doubt that Bubba would make an immediate and indelible impact on the high court? How much would he relish the chance to match wits and do battle with Scalia, Thomas and Roberts on a daily basis? You would almost have to take pity on the justices — and the clerks for that matter — the first time he lobbied them on a decision; they wouldn’t know what had hit them. Â Nobody is more persuasive in a small setting, and the Supreme Court is the ultimate small setting.
President Obama would probably take some flak for not picking a woman or a minority, but in the end Clinton would sail through Senate confirmation, and it would put to rest any lingering hard feelings between Bubba and Obama.
It’s a long shot — probably a super long shot — but as the Kentucky Derby proved on Saturday, sometimes long shots hit.
This entry was posted on Tuesday, May 5th, 2009 and is filed under News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
May 5th, 2009 at 1:02 pm
I think you are sorely overestimating Bill Clinton.
Greatest politician in generations? A first rate intellectual with the personality and persuasion to match?
I was never a huge Clinton fan, granted, but even in my wildest leftist leanings I could never go that far.
Clinton was an able politician, but that hardly makes him a suitable pick for the highest court in the land. He could certainly mop the floor with Justice Thomas (who you are also way over-valuing), but Scalia and Roberts would kick his intellectual tucus.
People on the right have always given Clinton way too much credit, simply because he made the buffoons on the right look bad. Now I suppose one could argue that in what passes in our country for politicians, Clinton does look good, but he was no more than a clever politician and a mediocre president.
May 5th, 2009 at 1:51 pm
Clinton was a moderate to conservative. Certainly not a progressive or liberal.
I’d have a problem with him as a Justice. As much as I think he was the least impeachable of the last 4, he did break the law and really doesn’t deserve to sit in judgement over people after being impeached.
May 5th, 2009 at 2:40 pm
Wasn’t he disbarred, too? He has to be in good legal standing for it to be even borderline plausible.
May 5th, 2009 at 2:48 pm
The other factor not being mentioned is age. One thing the Bush people did was find relatively young people to sit on the bench. Roberts and Alito will likely be around for 20, 30, 40 years if they’re so inclined to stay that long.
Bill, if I’m not mistaken is 63, and already suffering heart problems. There’s a good chance he could pass away in 10 years, when Democrats may no longer control the White House. I expect Obama to find someone significantly younger.
This did however raise the question of Obama’s future in my mind. He’ll still be a relatively young guy in 8 years, with a resume that includes constitutional law professor, Senator, and President. He’d make a perfect justice.
May 5th, 2009 at 3:46 pm
kk beat me to it.
He wasn’t disbarred—in Arkansas his license was suspended for five years (beginning in 2001, so presumably if he re-applied he could be re-barred (is that the right word?)). Ironically, he then had to resign his membership to the United States Supreme Court bar shortly thereafter, as the Supreme Court made it clear he wasn’t welcome. Meaning, he doesn’t even have legal standing to appear before the court.
Since he was never actually convicted of perjury, presumably he could reapply to the bar now that the AK suspension is up, but I don’t believe he has done so. But that would be only the beginning of the almost infinite litany of hurdles he’d face if anyone were ever lunatic enough to try and nominate him.
May 5th, 2009 at 4:39 pm
Despite the headline here you can totally rule that out. It won’t happen.
May 5th, 2009 at 4:58 pm
woman needs to be women :)
May 5th, 2009 at 6:01 pm
Err, “AR suspension”, I meant. Presumably he is still welcome in Alaska.
Also: my CAPTCHA for that last post was “even judge”.
May 5th, 2009 at 9:41 pm
As much as I admire and like Hillary Clinton, I don’t think that legal heft is one of her gifts, Nick, and the same for Bill. This paragraph in particular is seriously misguided:
This is, quite simply, nonsense. In its application of political norms to the court, it is simply not cognizant of how the Supreme Court actually functions. Either Clinton would instantly be the dimmest bulb on the court, a position neither would relish, and would be reduced to total reliance on their law clerks. Nor is it clear to me why either Clinton – both surely aware of what the court actually does most of the time, which is tax cases, securities cases, ERISA, and so forth – would want to be on the court. It is quite clear that law isn’t their first love, and that institution is no place for someone not in love with law.
May 5th, 2009 at 9:57 pm
Bill Clinton on the Supreme Court? As lots of people already mentioned, that’s a really bad idea. Both from a political standpoint and because his legal credentials are pretty weak for a Supreme Court Justice.
But let me suggest one more reason. If we are going to see a repeat of the William Howard Taft precedent, there is a far better-qualified candidate on the horizon: Barak Obama. I will be totally unsurprised, a decade from now, if that comes to pass.
May 5th, 2009 at 11:42 pm
Clinton wasn’t impeached. I think the blog raises interesting questions that we ought to consider. I am not a Bill Clinton fan but I think the Supreme Court ought to go beyond our personal preferences. Somewhere there has to be people with integrity that can help guide and interpret the law of this country. Without that…well…what are we?
May 6th, 2009 at 9:46 am
Hillary is far too big a believer in censorship for me to be comfortable, even sitting here in another nation.
May 6th, 2009 at 2:33 pm
Note: Clinton “voluntarily” resigned from the SCOTUS bar in the face of order to show cause why he shouldn’t automatically be stricken. Had he not “voluntarily” resigned, he would certainly have been removed as a consequence of the “voluntarily” suspension of his law license in Arkansas.
Similarly, had he not cut a deal with the Arkansas Supreme Court in agreeing to a 5-year suspension of his Arkansas license, he would have been disbarred by them for the contempt-of-court citation issued by Judge Wright for his “repeated willful failure” to testify truthfully in the Paula Jones case.
May 6th, 2009 at 2:41 pm
Clinton wasn’t impeached.
Yes, he was, by the U.S. House of Representatives on December 19, 1998 under two counts, perjury before a grand jury and obstruction of justice. Clinton was the second American president to be impeached, Andrew Johnson being the first. Neither were convicted by the Senate, but both were most certainly impeached.