Justice Hillary Clinton?
I have a story running in tomorrow's National Journal on the pros, cons and precedents for putting Hillary Clinton on the Supreme Court. NJ subscribers can read it here. For On Call devotees, it's available after the jump.
Enjoy!
(JENNIFER SKALKA)
Justice Hillary Clinton?
Some Court-watchers see the senator's lack of judicial experience as a plus.
by Jennifer Skalka
Sat. May 24, 2008
As Hillary Rodham Clinton's presidential campaign comes to a close, the chattering class is already speculating about what's next for her. Much of the buzz, of course, focuses on the pros and cons of becoming Barack Obama's running mate. But another long-shot possibility is beginning to get some ink: an appointment to the Supreme Court.
"I certainly think that Senator Obama's inclination to look for people of broad experience, people whose deepest values and whose empathy with others makes them wise human beings as well as expert lawyers, would mean he wouldn't rule out people such as Senator Clinton just because they don't have judicial experience," said Laurence Tribe, a constitutional law expert at the Harvard Law School who is advising Obama's campaign.
Skeptics quickly say that it would never happen: If elected president, Obama would never nominate to the nation's highest court someone guaranteed to instantly ignite a firestorm of Republican opposition and to embroil his administration in the umpteenth rehashing of the Whitewater, Vince Foster, and "Travelgate" controversies.
What's more, doubters argue, even though Clinton is a graduate of the Yale Law School, her fitness for the nation's highest court would be widely questioned because, like ill-fated Bush nominee Harriet Miers, she has no expertise in constitutional law and has never served on any bench. Plus, no one has gone directly from the Senate to the Supreme Court in more than 60 years.
"In this time, when the Senate has become so polarized and the parties are at loggerheads, you put yourself in a vulnerable position as president, particularly a new president, nominating somebody who does not have a strong record of judicial experience," said David Yalof, a University of Connecticut political scientist and the author of Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees.
Mark Agrast, senior fellow with the Center for American Progress, notes that justices without experience in elected office or policy-making positions have dominated the Supreme Court in recent years. He doesn't consider that positive. "There is much to be said for selecting a mixture of people with different experiences in the law and political affairs. Clinton has the political experience and the legal experience that would help to diversify the Court. In that sense, I wouldn't think the lack of prior judicial experience should in any way be seen as a detriment," said Agrast, an expert in constitutional law.
Agrast noted that it has been 14 years since a Democratic president nominated someone to the Supreme Court, and that if the next Democratic president gets the opportunity to fill a vacancy, "a large number of highly qualified people" will have been waiting a very long time to be chosen. But, he added, "I think having a distinguished sitting senator among them is not at all implausible."
And with just one woman--75-year-old Ruth Bader Ginsburg--now serving on the nine-member Court, a President Obama would no doubt feel considerable pressure to nominate another. "The fact is, it's disgraceful for the Supreme Court to have only one woman," Tribe said. "It was frankly disgraceful for there to be [only] two women when Sandra Day O'Connor was there."
Just three of the 47 justices confirmed during the 20th century went directly from the Senate to the Court, according to the Senate Historical Office. The last time was in 1945, when President Truman crossed the aisle to tap freshman Sen. Harold Burton, R-Ohio.
A bit more recently, a high court bargain was struck to clear a presidential candidate's path to his party's nomination. In 1952, Republican Earl Warren, the popular governor of California and his party's 1948 vice presidential nominee, threatened to barnstorm the nation campaigning for Dwight Eisenhower's rival, Robert Taft. To keep Warren in check and to secure his state's vote-rich delegation, Eisenhower reportedly promised to appoint him to the Supreme Court at the first opportunity. "It was clear the Supreme Court was a way to appease him, if a Cabinet position was not," Yalof said. "A deal was cut on the floor of the Republican convention." Eisenhower used a recess appointment in October 1953 to elevate Warren to chief justice. The Senate confirmed him in March 1954.
One difference between the 1950s and today, Yalof notes, is that time on the bench has become "a de facto prequalification for being considered" for the Supreme Court. Yet Sheldon Goldman, professor of political science at the University of Massachusetts (Amherst), said he does not view a lack of judicial experience as a disqualifying factor. "Historically," he said, "some of our greatest justices never sat on a bench before: Louis Brandeis, Earl Warren, Hugo Black. The great Chief Justice John Marshall had never sat on a bench before, nor did Justice [Felix] Frankfurter. You could go on and on."
Meanwhile, Clinton would have at least one factor in her favor: The Senate has a tradition of not refusing to confirm one of its own. The friendships she has forged with members on both sides of the aisle would, of course, influence her chances--as would, no doubt, the size of the Democrats' majority, if they controlled the chamber at that time.
Some Court-watchers caution that Obama, if elected, would no longer need Clinton's help and would not want to burden himself with trying to push through her appointment. And it's possible he wouldn't have sufficient clout to win a knock-down, drag-out confirmation battle.
"Supreme Court fights are waged violently and passionately when the individual in question is virtually unknown," said Goldman, author of Picking Federal Judges: Lower Court Selection From Roosevelt Through Reagan. "The notion of placing one of the most polarizing figures in American politics into a Supreme Court nomination fight--it's hard to imagine what could be more controversial. It's hard even to fathom. Thus, one would expect the only person who would consider doing this is someone with lots of political capital."
And if Obama wanted to nominate a woman to the Court, he could instead choose one of the many female legal scholars or federal judges who have paid their dues in a more traditional fashion. Among those mentioned are Kathleen Sullivan, former dean of the Stanford Law School, and Elena Kagan, dean of the Harvard Law School.
There are other priorities to consider as well. The nation has yet to have a Hispanic justice. And the very conservative Clarence Thomas is the only African-American on the high court, something that Obama--should he become the nation's first black president--might want to take into account.
Clinton's team has been mum about the desires of its candidate, if the White House is denied her. The candidate herself seems intent on fighting on until the final contests are held on June 3. The 60-year-old Clinton certainly knows as well as anyone, however, that her chances of ever becoming president have greatly diminished, especially if Obama wins in the fall. That said, Obama could lose, and then the Democratic landscape would shift dramatically. Clinton's backers are undoubtedly aware that she should have a 2012 strategy in her pantsuit pocket. And it obviously doesn't take a mind reader to know that Hillary Clinton would still prefer to be the president nominating the next Supreme Court appointee than to be that nominee.
Fleet Week and Hillary on the SCOTUS! What a yummy week.
As sorry as I am not to see Hillary in the White House, I think she could be a more powerful force on the Court. Her academic and practical qualifications are unsurpassed, and she would being the ear of the people, the voice of the people to the deliberations of this dreary ultra conservative, reactive RNC responsorial choir. How nice it would be to have a Court member not beholden to anyone, one just interested in justice and the law.
And, dear, I'll iron your robes, FOC.
As Hillary Rodham Clinton's presidential campaign comes to a close
Wow, you're as bad at prognostication as you are at reporting! Are you now telling Puerto Rico, Montana and South Dakota that their primaries are cancelled?
I'm surprised; clearly you haven't learned that in politics, anything can happen. Don't write her obituary just yet.
Pee Ess, Jenny: You need to go back to Reporting 101. Editorializing is not allowed in straight reporting.
I disagree with Corinne, I think Jenny should go work for the Clinton campaign. Reading Jenny's posts throught the primary season, it is obvious that she has been auditioning for the job. She definitely has my vote!
The next Supreme Court justice will be a Hispanic female. Ideology to be determined by the 2008 election.
The next Supreme Court justice will be a Hispanic female. Ideology to be determined by the 2008 election.
I'm afraid the idea of Senator Clinton being nominated for the Supreme Court given her lack of credentials, attempt to deny Nixon right of counsel during his impeachment process, her proposal to deport all illegal immigrants who are criminals without due process although the SCOTUS has historically interpreted the 6th and 14th amendment to afford certain rights to anyone in the territorial jurisdiction of the US, and that she couldn't even pass the DC bar would indicate this is more a fantasy thought than anything else.
Why does america ow the Clintons?
With all that is going on in this world that is just what the Supreme Court needs, a known habitual liar as a new justice. If I am not mistaken she has very little law experience and failed the DC bar! It is getting pretty ridiculous that you pundits would continue to float this idea. I guess when you have no integrity of your own it is pretty easy to not fault other for their lack of integrity. So let’s clear as to where I stand. Any party who would place an inexperienced hack from either party on that court would never receive a vote from me again!
corinne________
Do you really, honestly, believe in , that Hillary Clintons has still got a chance to be
nomineted?
How?
Do you also believe in, the sun circles the earth?
Is it still possible, apart from your blindness, to discuss real clear politics with you?
Are you a Democrat, voting for McCain rather than for Obama?
Supreme Court Justice - good way to get her off Obama's back. Senator Obama, please don't put her on the ticket/
Supreme Court Justice - good way to get her off Obama's back. Senator Obama, please don't put her on the ticket.
Supreme Court Justice - good way to get her off Obama's back. Senator Obama, please don't put her on the ticket.
An excellent choice for a woman Supreme Court judge is Victoria Reggie Kennedy (Mrs. Ted Kennedy), a Washington lawyer and the daughter of Louisiana judge Edmund Reggie.
It will serve the Republicans right to have the NUCULAR OPTION used against them when we have a large Democratic majority in both houses. And it will be great to see how Hillary behaves when she no longer has to suck up to the voting public. She might be fantastic as a justice. And she won't be in Bill's shadow any more. She can finally do something Bill hasn't done (and will never be able to do).
It's a creative idea, but the pay cut wouold kill the deal for Hillary.
My first choice for Hillary's future would be none in politics at all. She has shown us everything we ever needed to know about her insatiable quest for power, and it's not good.
The Supreme Court fits her style. She could argue with everyone and maybe bully some people into changing their positions. She would be locked up until her retirement. There are many positives to this scenario.
Ms. Skalna has again written a piece based primarily on Obama-camp speculation--I read her pieces again, and they tend to be biased more than others on the Hotline's web site.
Does anyone remember Mario Cuomo's name being floated for Supreme Court in 1992 by Bill Clinton? Where is Justice Cuomo now? I guess Breyer and Ginsburg won out when the nominations came up. B. Clinton brought this up to assuage those Cuomo camp folks who were toying with the idea of a late entry by Cuomo into the Dem. primaries when B. Clinton was faltering.
In 2008, the Hillary for SCOTUS idea is just as a transparent political ploy. It is being floated by those in Obama's camp who don't want her as V.P. to try to assuage hard-core Clinton voters that he really does respect H. Clinton, when these advisors sure don't. It is ridiculous. Obama doesn't get to pick VP (the Democratic convention does) and he only gets to pick Supreme Court nominees IF he is elected and if the Senate agrees. Anyone remember
Ms. Skalna has again written a piece based primarily on Obama-camp speculation--I read her pieces again, and they tend to be biased more than others on the Hotline's web site.
Does anyone remember Mario Cuomo's name being floated for Supreme Court in 1992 by Bill Clinton? Where is Justice Cuomo now? I guess Breyer and Ginsburg won out when the nominations came up. B. Clinton brought this up to assuage those Cuomo camp folks who were toying with the idea of a late entry by Cuomo into the Dem. primaries when B. Clinton was faltering.
In 2008, the Hillary for SCOTUS idea is just as a transparent political ploy. It is being floated by those in Obama's camp who don't want her as V.P. to try to assuage hard-core Clinton voters that he really does respect H. Clinton, when these advisors sure don't. It is ridiculous. Obama doesn't get to pick VP (the Democratic convention does) and he only gets to pick Supreme Court nominees IF he is elected and if the Senate agrees.
John and Elizabeth Edwards for Supreme Court!! Please!!
as a lawyer and an Obama supporter, I would applaud and celebrate a Hillary Clinton appointment to the SCOTUS. If there is anything I admire about Senator Clinton, it is her sharp mind and her extraordinary analytical thinking skills and ability to master legal and political issues quickly and exceptionally. The MSM - let's say for lack of savvy in these matters - has largely missed this quality of Senator Clinton's. I personally would applaud her in any role in an Obama administration, but the SCOTUS in particular would be a crown fitting for her to wear.
From a policy perspective, I'd have no problem with Hillary joining The Supremes.
From a political perspective, I think she'd flourish in an atmosphere where she wouldn't have to be competitive.
But from a legal perspective - if Sen. Obama's goal would be to put the best possible legal minds exercising the soundest judgment on the bench - I'd have to withhold judgment. (i.e. How qualified in this respect would be Sen. Clinton)?
That said - If - considering all these factors - Sen. Obama felt Hillary Clinton would be a sound jurist and strong voice for justice on the Supreme Court, her appointment might turn out to be excellent.
I can't recall when "the best legal mind" was ever a parameter to be used to choose a SCOTUS nominee. Look at Clarence T or more recently Roberts/Alito. It is always a a policy decision, not a legal decision. Hillary has drifted to the Right because she wanted to appear more electable. Without having to cater to ignorant voters, she can be as liberal as she truly was in Bill's first term. That would be a thorn in the Repubicans' side for 20 plus years!
Are you people crazy?
She couldn't pass the confirmation hearings!
Presidents don't just say to someone, you go
on over there and put on your robes. There is
a process that must be followed, by law.
Remember the fiascoes of Robert Bork?
Clarence Thomas?
The right has been waiting for years for some
payback. They'd be licking their chops to get
to Hillary Clinton. She would literally be
shredded, in front of the entire world.
Good luck with that one...
Next!
the senate would never confirm her. period.
With quite a few politicians in Congress wanting to run for Prez, getting rid of one of their chief rivals, even if it means confirming her for the Court, is worth doing. Hillary will keep plugging away at the Presidency otherwise.
With a large majority of Dems and the NUCULAR OPTION, we can put anyone we want on the Court, thanks to Bill Fritz and the greedy Repubicans. Maybe even put Ralph Nader there to keep him from screwing up another election cycle.
HRC for SCOTUS? Not a good idea. While the status of the position is undoubted, the fact is that the workload is the kind which only someone who loves the law and only the law, with all its dry digressions and technical whoosies, and deliberate deferrals to others, can do well. It's all theory and paper, and no people. HRC is in her essential character a politician and wielder of direct power, and would rapidly be bored to tears with the minutiae which the SC must deal with, and the restrictions on what else she and Bill could do. One of the problems with being any Federal judge is that there are financial and otehr restrictions on both judge and spouse, which he might well find unacceptable.
Jennifer Skalna just wrote this for National Journal, which I used to respect. This truly sounds like something fed from the Obama campaign directly to the reporter, and then some wild-eyed speculation and editorializing ensues in the piece. I like straight reporting, not editorializing on some possibility that is 4 or 8 moves ahead (first, Obama would have to win (a probability of 0.5), then a vacancy would have to occur (a probabilitiy of 0.4), then Clinton would have to be chosen by Obama (a probability of 0.05) and then confirmed by the Senate (probability of 0.7). This joint probability of this event occurring is less than 10%, and you have devoted an entire column, oops, I mean article, to this?
I agree with the previous posters. This is speculation from the Obama campaign to push Hillary Clinton out of the race by offering her supporters a carrot that will never come to fruition. Please stop reporting Obama talking points as news and report on the race. Like how the convention nominates the candidates, both president and vice president. What is the likelihood Clinton's name goes in as vice president at the convention for a roll call? More likely than this farfetched Supreme Court scenario.
Honestly, I think Jennifer Skalna is about to jump ship over to the Obama campaign as well. Just like Linda Douglas. Has the National Journal become an Obama rag, peddling its pretend pro-Clinton stories that simply undercut her electoral prospects and are not actually news?
Did Skalna participate in any back-channel work with Obama like L. Douglass did? I think readers deserve to know.
We can debate on whether Hillary Clinton would make a good justice or not (I'm leaning towards no there). But remember this: Republicans would be apoplectic with rage over her nomination and would make her confirmation hearings an unmitigated disaster for an Obama presidency. I think Obama is more likely to choose a middle-of-the-road, consensus nominee than to infuriate Republicans like that. So while it's fun to speculate on possible nominees, I don't think Hillary Clinton is going to be on that list.
Of course, LN, there is a chance that the Republicans may be irrelevant when Congress convenes mext January. I can't get the math to work out to my satisfaction that the Democrats will be at 60+, Holy Joe, excepted, but there are some analysts who believe that may just happen.
My dream senario: A veto proof majority +1 that will allow the party to kick Liebermann out on his sorry tush.
Man, you people are not only clueless but you can't READ.
Her name is JENNIFER SKAL*K*A.
Get a friggin clue or back to dittoville from whence you came.
Roger That, of course there's always the possibility that Democrats will hold more than 60 seats in the Senate come Supreme Court nominee confirmation time. But no matter how small the Republican minority is, they still have the ability to raise hell during the confirmation hearings. Independent groups will run all kinds of ads, Rush Limbaugh will probably have an aneurysm because of all the red-faced yelling he'll do, and Republicans on the Judiciary Committee will ask all manner of politically embarrassing questions for the sole purpose of making trouble. So even if the Democrats have a clear majority, a Supreme Court confirmation hearing for Hillary Clinton would be anything but smooth.
If we can even consider putting on the Supreme Court an individual with HRC's history of mistruths and halftruths, doubtful legal conduct, conspiracy to deceive the US public to help her husband secure office - and to keep him on office in office, inability to keep her legal billing records and so on and on, the Court will be utterly discredited - and another nail put in coffin of America's reputation.
I would be so sorry to see that happen.
first, never pass confirmation, too many unresolved personal legal issues, and political enemies. A vvote to confirm her would oom any republican from social conservative support, FOREVER.
second, bad idea, another pure source of power for corporate america.
HRC has piled up wads of dough from corporations around the country(not to mention Bill's million dollar speeches whenever the coffers get low). Do we the people really want anyone that beholden to them to sit in judgement when we need a fair shake?
The essence of a Supreme Court justice is to render opinions. Mrs. Bill Clinton has none. Just like her husband, she relies on polling.
Everything she's ever touched she's screwed up. please let her go home and bake cookies and put someone with sense on the Supreme Court.She says she's fought all her life, but to what avail?What has she ever accomplished besides fighting? We don't need more stife,rancor,and confusion on the Court.
THAT IS EXACTLY WHERE SHE BELONGS. SHE CAN DO MUCH MORE FOR OUR COUNTRY ON THE SUPREME COURT, THAN TAKING ON THE HORRIBLE MESS THIS COUNTRY IS IN. IF SHE WERE PRESIDENT, THEY WOULD NOT GIVE HER A MOMENTS PEACE. IF SHE WAS ON THE SUPREME COURT, SHE WOULD PRETTY MUCH BE IN THE BACKROUND. SHE WOULD BE WONDERFUL REPLACEMENT FOR GINGSBURG, WHO I THINK IS WANTING TO RETIRE. JUSTICE STEVENS WANT TO RETIRE ALSO. BILL CLINTON COULD REPLACE HIM--THAT WILL GET THE GOP'S KNICKERS ALL IN A TWIST. JUST KIDDING ON BILL CLINTON-THAT WOULD BE TOO BORING FOR HIM. BUT, HILLARY REALLY DOES HAVE THE PERSONALITY FOR THE SUPREME COURT. AND SHE COULD STAY THERE FOR THE NEXT 20+ YEARS.
of course she should be nominated to the high court for she has little experience as a lawyer, none as a judge and has shown the worse judgement of any candidate in recent history. why should she be rewarded? I believe she will have a problem holding on to her senate seat, let alone a seat on the supreme court.
i think this would be great for hilary. she fits the spot perfectly. i dont think people should hate on her. who doesnt have an opposing side right? obama and hilary are also good friends. i think this position would be good for her.
I think the contradiction between Hilary and Obama is very intense. Both of them are for the democratic party but they both can't be president. Many people are probably tired of having white be the dominant race for being president. It's time for a change.