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Wednesday, May 07, 2008

Hillary Clinton for the Supreme Court?

There has been much talk about Barack Obama naming Hillary Clinton as his running mate.  This seems most unlikely, for the basic reason that they seem to dislike each other intensely.  Moreover, having the former first couple as the new second couple would create an endless nightmare of message control (if Hillary has trouble keeping Bill on script, how could Obama?).

But there are a lot of Hillary Clinton supporters who will be disappointed by Obama's inevitable nomination.  Is there anything to offer them?  Lately, I've been thinking about this idea: Suppose Obama announced that he would name Hillary Clinton to the first Supreme Court vacancy of his term.  She would be a very strong candidate, bringing a diverse background to a Court that is now composed entirely of former federal appellate judges.  She has been a staffer for the Watergate committee, a law professor, a partner in a law firm, a United States Senator, and she has played a prominent role in White House decisionmaking.  This is real-world experience of the sort brought to the Court by justices such as John Marshall, Robert Jackson, and Earl Warren.  And, of course, she would double the number of women on the Court (or at least maintain it, if Justice Ginsburg retired).

There are a number of downsides.  First, she would be 61 in the first Obama term, which is slightly old for a lifetime appointment, although still within the range of plausibility.  Second, it's arguably an inappropriate politicization of the Supreme Court. (I can't think of another instance where a presidential candidate announced specific judicial nominees in advance, although of course candidates regularly make promises about the types of judges they will appoint.)  Third, it may be imprudent for Obama to tie himself to a particular nominee, given the possibility that some damaging information about Clinton or her husband might emerge in the period prior to the appointment.  Fourth, it might limit her effectiveness as a Senator, if she is seen as just hanging on until the next Justice retires or dies.

At the moment, I believe the downsides outweigh the benefits, but if it looks like a significant number of Clinton supporters might otherwise drift toward John McCain, it's an option Obama should at least consider. It's a high level job for which Clinton would be well suited, and it wouldn't require her to work with him on a regular basis (as would a Cabinet appointment).

Posted by Carlton Larson on May 7, 2008 at 04:47 PM in Current Affairs | Permalink


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Also, what about leaking the rumor through the press rather than making a public commitment? And maybe framing it as "seriously consider" rather than "commit to appointing?" Keeps most benefits, fewer drawbacks.

Posted by: Joey | May 9, 2008 3:45:07 PM

HIllary on SCOTUS? No. Does Obama want to guarentee lasting hatred from the right? I can't think of a possibly more dividing thing he could do. There is no way the republican party will stand to have Hillary's ideas become a permanent, lifelong deal. We could possibly stomach 4 years of Hillary as president, because there's always a filibuster, or other things to hamstring her as president. But on SCOTUS? With all that power forever? Never. No way, no how.

I honestly would expect to see riots over the idea.

Posted by: Vanceone | May 8, 2008 3:31:43 PM

Thanks to alkali and AndyK for drawing my attention to 18 U.S.C. 599, which prohibits candidates from offering direct or indirect statements about whom they would appoint to office. My quick WestLaw search suggests that the statute has never been enforced, and, indeed, has never been relied upon by a court for a significant point. In the 2000 election, George W. Bush strongly hinted that Colin Powell would have a prominent role in a Bush administration. Such an indirect statement was technically a crime under the statute. It is highly problematic, however, and possibly a violation of the First Amendment, to apply this statute to statements made publicly by presidential candidates about the individuals they would appoint to high public office. That's a public discussion worth having, without the chilling effect of potential criminal prosecution, initiated by whichever party currently holds the executive branch. Could the Clinton Justice Department really have indicted Bush in 2000 for making an indirect promise about Colin Powell?

Posted by: Carlton Larson | May 8, 2008 12:26:54 PM

While she is controversial as a Presidential candidate, I thought that she played well with others in the Senate. On the other hand, a Supreme Court nomination these days is very political, so the fact that she is controversial to the voters might make her poison to the Republicans. Can't make up my mind on how this plays.

Posted by: Sandy Hausler | May 8, 2008 10:47:22 AM


It may be true that the Senate rarely opposes one of its own, but rarely is one of its own a political figure as divisive as Hillary Clinton. It's my understanding that she actually has good relationships with most her colleagues (including many from across the aisle) but, filibustering an HRC nomination would be just the kind of juicy political stunt the Republican party could not pass up. They would certainly do it, and the American public would probably support them.

Posted by: No Name | May 8, 2008 5:49:48 AM

Obama wouldn't actually make it public, it would be a behind-the-scenes agreement to get her to drop out of the race already and wholeheartedly throw her support behind him. I think she'd be an excellent choice. One can have more lasting impact on SCOTUS than as POTUS.

Posted by: Fermin | May 8, 2008 2:50:31 AM

alkali: Good point. http://www.discourse.net/archives/2004/03/why_kerry_will_not_appoint_a_shadow_cabinet.html

I guess that settles that....?

Posted by: AndyK | May 7, 2008 11:25:11 PM

I can think of nothing that would be more effective at getting the right wing to come out and vote than the promise that if Obama is elected, Clinton will be appointed to SCOTUS

Posted by: anon | May 7, 2008 9:02:49 PM

Presidential candidates can't promise appointments -- technically, it's vote-buying. That's why candidates can't say who would be in their cabinets or who they would appoint to the courts. I don't know why people don't seem to know this -- it's sort of an essential feature of the US political system -- but you can look it up.

Posted by: alkali | May 7, 2008 8:31:55 PM

As far as a filibuster, I doubt it. Rarely does the Senate oppose its own.

Posted by: Bart | May 7, 2008 7:48:05 PM

Fifth (or perhaps a subpoint to point two), while it might help Obama retain some Hillary votes from McCain, it might continue to pop the balloon that is the Obama-as-outside-the-beltway image, thus losing him OTHER votes to McCain. I'm not sure he could successfully attack "politics as usual" credibly while bargaining with a woman he has demonized for months.

Posted by: AndyK | May 7, 2008 7:10:14 PM

I believe Eisenhower promised Warren a justiceship on SCOTUS to get his support in 1952. At least that's what my conlaw prof said.

Posted by: nvs | May 7, 2008 7:02:45 PM

Given that Justice Stevens might well retire the day after Pres. Obama takes office, the latter two issues might not be such a big deal because of the very short amount of time before Clinton's nomination.

That said, anonymous's point about a filibuster is a legitimate one -- she'd be a very controversial nominee, and it isn't clear the Republicans would go down without a fight, knowing that there's a substantial portion of the country that would support them on this.

Posted by: Jason W. | May 7, 2008 6:14:02 PM

Andrew Sullivan has been floating this idea for months.

Posted by: Martin | May 7, 2008 6:12:11 PM

I think people are talking Senator Majority Leader. Of course, as my friend reminds me, if we think a ticket is impossible, look no further than Kennedy Johnson. After all, Johnson spread (true) rumors about Kennedy have Addison's disease, how could they possibly end up on the same ticket? But they did.

I don't think Hillary adds much to the ticket though, and so I think she is best suited for Senate Majority Leader. Bill for the Supreme Court, however...

Posted by: Bart | May 7, 2008 5:59:16 PM

Sounds like a plan: make the promise in order to mend fences, nominate her once elected, and then withdraw her nomination once the Republicans filibuster thus effectively ending her political career. Revenge is best served cold.

Posted by: anonymous | May 7, 2008 5:16:16 PM

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