The Case Against Putting Sen. Clinton on the Supreme Court

Having outlined the reasons why Hillary Clinton should be appointed to the Supreme Court by President Obama, this post covers why tapping Clinton for the High Court would be a mistake.

Clinton is too old. This is the most obvious reason. A Supreme Court appointment is for life, so it is to the President’s advantage to appoint as young (and qualified) a nominee as possible to ensure that he or she will be able to sit on the Court for as long as possible. Unfortunately for the Democrats, they have not always grasped this tenet as well as the Republicans. Antonin Scalia was just 50 when President Reagan elevated him to the Court in 1986. When President George H.W. Bush tapped Clarence Thomas in 1991, he was a mere 43 years old. Similarly, Chief Justice John Roberts and Justice Samuel Alito were 50 and 55 years old respectively upon their confirmations. The Republicans were wise to appoint each of them to the Court at their young ages, and together they could form a conservative block on the Court for years to come. Conversely, when President Clinton put Ruth Bader Ginsburg (1993) and Stephen Breyer (1995) on the bench, they were already 60 and 57 respectively.

As a result of these divergent nomination strategies, the Supreme Court has three conservative jurists who could serve for another 30 years each, while the four liberal justices on the Court presently are all much older and could conceivably each retire in the near future. Faced with this dilemma, President Obama would have to strongly consider imitating the Republicans’ strategy and finding a bright young jurist to appoint should he be faced with a vacancy (which is likely given that Justice Stevens will be 89 if and when Obama takes office).

Hillary Clinton would be 62 years in 2009, the earliest point at which she could be tapped for the Supreme Court. Given the state of the liberal wing of the Court, her appointment would not be terribly strategically bright by Obama. While there is no question that Clinton would bring a judicial philosophy to the Court that many liberals – Obama included – would approve of, her age is too big a negative. Even if she were to remain in strong health, it would exceptional if she could serve a generation on the Court. A Clinton appointment would be a home run to liberals in the short-term, but in the long-term it would be a mistake and would minimize Obama’s impact and legacy on the nation’s jurisprudence.

Clinton is not qualified. While liberals would rejoice at seeing Clinton take her place on the dais and jousting at arguments and in opinions with Justice Scalia, it is difficult to argue that she is fully qualified to sit on the Supreme Court. Granted, nowhere in the Constitution is there a proffered suggested background for a Justice. The Framers gave the President great leeway to select Justices. Furthermore, in the past a wide selection of men have sat on the Court with varying backgrounds, many not of the Harvard and Yale variety. Indeed, for example, Justice Hugo Black was not even a lawyer.

Unfortunately for Sen. Clinton, times have changed. Judicial selection, particularly for the Supreme Court, is far different than it was years ago. Most Justices are picked from the very top of the legal profession: on the current Court, for example, eight of the nine Justices came directly from the U.S. Court of Appeals (with the ninth, David Souter, coming from the New Hampshire Supreme Court). Justices often represent the cream of the field, and they come with extensive background and experience in various sectors of the law. While no one can question Clinton’s intelligence, or even her legal abilities, it would be difficult to argue that she possesses these high legal qualifications. Aside from graduating from Yale Law School and later working for the House Judiciary Committee and the Rose Law Firm in Arkansas, her legal background is quite thin. Robert Novak has said that Clinton would be the most unqualified Justice since Byron White (who was put on the Court by JFK in 1962). However, White was probably more qualified than Clinton as he was plucked from his position as Deputy Attorney General. Ditto Abe Fortas, who was put on the Court by Lyndon Johnson in 1965. All of Fortas’ faults aside, he was one of the most brilliant and talented attorneys of his generation. On the issue of legal qualifications, Clinton cannot hold a candle to White, Fortas, or just about any other successful nominee over the last 40+ years.

A young Obama presidency would have too much to lose by getting bogged down in a protracted nomination fight. Let’s assume for the sake of argument that the GOP decided not to filibuster a Hillary Clinton nomination to the Supreme Court. (I actually believe a filibuster would be unlikely for two reasons: (1) it would make the GOP look incredibly hypocritical given their memorable hissy fit against the Democratic filibusters of a handful of Bush nominees; and (2) the GOP’s Senate ranks will be at the cusp of 41 votes, thus making it harder for their caucus to stage and hold a filibuster on the nomination. Even if numerous red state Democrats were to vote against confirmation, they would not vote to uphold a filibuster.) Despite this, there is no doubt that the GOP would assail the nomination, knowing that even if they could not ultimately defeat Clinton, a long fight could hurt her credibility on the Court, and more importantly, seriously injure (perhaps critically) a young Obama presidency.

Should Justice Stevens or Justice Ginsburg decide to retire in 2009 or 2010 – a very real possibility – Obama’s nomination to the Court will represent perhaps the most important decision for the young administration. Putting Clinton up for the open slot would ensure a brutal fight that would undoubtedly take weeks, if not months, to untangle and see through until the end. The nomination would become the biggest story of the year, and suck the oxygen away from everything else. It would become the national focal point for the media and the public. Seizing on this reality, gleeful Republicans would gin up opposition with daily floor speeches, endless appearances on Fox News, talk radio, and elsewhere, and millions being spent by conservative interest groups to highlight the laundry list of Clinton’s negatives everyone has being hearing over the last 15 years. While Supreme Court nominations have become incredible spectacles, it would be an unparalleled circus.

Considering all of this, even a successful Clinton nomination would simply cost too much for Obama. Furthermore, should a vacancy occur close to the 2010 midterm elections – where, incidentally, Democrats have a favorable map – a Clinton nomination would become a major issue in election campaigns, much to the hindrance of Democratic nominees across the nation.

Even if Democrats sweep all the close Senate races this year, a Clinton nomination would still not be assured of mustering 50 Senators to vote ‘aye’. I saved for last the simplest, but most convincing argument for why Hillary Clinton can never be tapped for the Supreme Court: the nomination, if put before a vote of the Senate, would have extreme difficulty in getting enough Senators to vote ‘aye’, even with a strong Democratic majority. While there is certainly a strong and large core of liberal Democratic Senators who would happily vote to confirm their colleague Clinton to the High Court, there are also many red state Democrats, uneasy moderates, and of course just about the entire Republican caucus which would vote against the nomination.

To make this easier to conceptualize, I will go through each Senator in the chamber for 2009-2010, broken up by how they will likely vote. I recognize that it is impossible to predict this with perfect precision, but I am going to do my best to foresee how each contested Senate race will turn out. I like to think my powers of prediction are pretty strong. This of course assumes there will be a vacancy in 2009 or 2010, and that Obama is President at that time.

Guaranteed ‘no’ votes
(1) Richard Shelby (R-AL)
(2) Jeff Sessions (R-AL)
(3) Jon Kyl (R-AZ)
(4) Mel Martinez (R-FL)
(5) Saxby Chambliss (R-GA)
(6) Johnny Isakson (R-GA)
(7) Mike Crapo (R-ID)
(8) Jim Risch (R-ID)
(9) Richard Lugar (R-IN)
(10) Charles Grassley (R-IA)
(11) Sam Brownback (R-KS)
(12) Pat Roberts (R-KS)
(13) Mitch McConnell (R-KY)
(14) Jim Bunning (R-KY)
(15) David Vitter (R-LA)
(16) Norm Coleman (R-MN). If Franken were to win, he is a vote in favor.
(17) Thad Cochran (R-MS)
(18) Ronnie Musgrove (D-MS) (or Roger Wicker), regardless of who wins this race in November; incidentally, I think Musgrove will win.
(19) Kit Bond (R-MO)
(20) Mike Johanns (R-NE).
(21) John Ensign (R-NV)
(22) Judd Gregg (R-NH)
(23) Elizabeth Dole (R-NC). I am assuming she will win in November, much to the consternation of overly-optimistic Dems.
(24) Richard Burr (R-NC)
(25) George Voinovich (R-OH). Very simple reason: up in 2010, if he voted in favor, he would assure a robust primary challenge.
(26) James Inhofe (R-OK)
(27) Tom Coburn (R-OK)
(28) Lindsay Graham (R-SC)
(29) Jim DeMint (R-SC)
(30) John Thune (R-SD)
(31) Lamar Alexander (R-TN)
(32) Bob Corker (R-TN)
(33) Kay Bailey Hutchison (R-TX)
(34) John Cornyn (R-TX). He is very likely to win in November given the bent of the state, and his huge war chest.
(35) Orrin Hatch (R-UT)
(36) Bob Bennett (R-UT)
(37) Mike Enzi (R-WY)
(38) John Barrasso (R-WY)

So, right off the bat there are at least 38 Senators absolutely guaranteed to vote against confirming Hillary Clinton to the Supreme Court. Let’s now look at the guaranteed ‘aye’ votes.

Guaranteed ‘aye votes
(1) Blanche Lincoln (D-AR). While some might argue that this would be a tough call given Lincoln’s state, I disagree. I think she would want to vote for Clinton, and would be able to without fear of being badly hurt later.
(2) Dianne Feinstein (D-CA)
(3) Barbara Boxer (D-CA)
(4) Mark Udall (D-CO). I acknowledge that this would be a tough call for the freshman Senator from Colorado. But Udall has a very liberal record and he would have just won, so he would have several years for any angry Coloradans to forget the vote.
(5) Chris Dodd (D-CT)
(6) Joe Lieberman (I-CT). Even if Joe has at this point been excommunicated from the Democratic caucus – a real possibility – I think he would still vote to confirm Clinton here.
(7) Joe Biden (D-DE). Assuming he is not Secretary of State; though, whoever replaces him would be a reliable vote for confirmation.
(8) Tom Carper (D-DE)
(9) Daniel Inouye (D-HI)
(10) Daniel Akaka (D-HI)
(11) Richard Durbin (D-IL)
(12) Rahm Emanuel (D-IL).
(13) Evan Bayh (D-IN). For any other Democratic Indiana Senator, this would be a hard vote, but Bayh has more than enough political capital back home to get away with it.
(14) Tom Harkin (D-IA). Harkin would have just won re-election in 2008, and is a strong, dyed-in-the-wool liberal.
(15) Barbara Mikulski (D-MD)
(16) Ben Cardin (D-MD)
(17) Ted Kennedy (D-MA), or whoever might replace him.
(18) John Kerry (D-MA)
(19) Carl Levin (D-MI)
(20) Debbie Stabenow (D-MI)
(21) Amy Klobacher (D-MN)
(22) Claire McCaskill (D-MO). I admit this would be a tough vote for her with re-election looming in 2012, but I think she would really want to do it. Close call though.
(23) Harry Reid (D-NV). A closer-than-it-looks call. Reid could face a tough re-election race in 2010.
(24) Jeanne Shaheen (D-NH)
(25) Frank Lautenberg (D-NJ)
(26) Robert Menendez (D-NJ)
(27) Jeff Bingaman (D-NM)
(28) Tom Udall (D-NM)
(29) Chuck Scumer (D-NY)
(30) Hillary Clinton (D-NY). Duh.
(31) Sherrod Brown (D-OH). With re-election looming in 2012, this could be tough, but Sherry is very liberal.
(32) Ron Wyden (D-OR)
(33) Jack Reed (D-RI)
(34) Sheldon Whitehouse (D-RI)
(35) Patrick Leahy (D-VT)
(36) Bernie Sanders (I-VT)
(37) Patty Murray (D-WA)
(38) Maria Cantwell (D-WA)
(39) Herb Kohl (D-WI)
(40) Russell Feingold (D-WI)
(41) Robert Byrd (D-WV). Though, if he were to leave office, he could be replaced by Shelly Moore Capito, who would vote ‘no’.
(42) Jay Rockefeller (D-WV)

We should therefore see 42 sure ‘aye’ votes, a fair sum away from the necessary 50 (plus the Vice President’s tie breaking vote) needed for confirmation. The Democrats would need to find eight more Democrats to confirm the nomination. Let’s now look at the other 20 Senators one by one.

Senators who could vote either way
(1) Lisa Murkowski (R-AK). While she is a woman, I doubt she would vote in favor.
(2) Ted Stevens (R-AK) or Mark Begich (D-AK). If Stevens survives in November, he would assuredly vote against Clinton, and Begich would have a very hard time supporting her given he would have just won a first term in Alaska mainly because of his opponent’s corruption. Probably a ‘no’ too.
(3) John McCain (R-AZ). This is an interesting one. While there is always the chance he could give the middle finger to his party on the way out the door, his conservative record makes it very likely he would vote to oppose.
(4) Bill Nelson (D-FL). Nelson would have a tough choice to make. He is popular back home, but he is also moderate and having Clinton on the Supreme Court could come back to bite him. For me, the tie-breaker is that he was a supporter of Clinton’s presidential bid—I just couldn’t see him turning his back on her. Count him as a yes.
(5) Mary Landrieu (D-LA). An excruciating tough vote. Since she would have just won re-election in November 2008, I bet she would stay quiet and quietly vote yes at the end, but she would face intense pressure to oppose.
(6) Ben Nelson (D-NE). Nelson has a lot of principle and integrity, and part of me thinks he would like to vote in favor, but he comes up again 2012, and a vote for Clinton in Nebraska could bring dire political consequences later. Close, but a ‘no’ vote.
(7) Tim Johnson (D-SD). All logic says he would have to oppose, but I think he knows he will be in his last term and can get away with supporting his colleague.
(8) Mark Pryor (D-AR). Unlike Lincoln, Pryor is more moderate and probably not quite as safe, though he is pretty safe. Could go either way, but I predict he votes in favor.
(9) Ken Salazar (D-CO). He is very principled. I bet he votes in favor.
(10) Olympia Snowe and Susan Collins (R-ME). Very tough to say. Gun to my head, I would say Snowe votes in favor, and Collins, having just won re-election, who knows? Though it could either more, or both could oppose or both could support.
(11) Max Baucus and John Tester (D-MT). Baucus is famously cautious, even though is very safe, and will win easy re-election this November. I have no idea. In terms of Tester, he would have to vote against since he could face a brutally difficult re-election fight in 2012.
(12) Kent Conrad and Byron Dorgan (D-ND). I honestly have no idea how either would vote given their state.
(13) Gordon Smith (R-OR) or Jeff Merkley (D-OR). Depends on who wins in November. The Democrat would be a sure ‘yes’, but Smith would likely vote against.
(14) Arlen Specter (R-PA). Perhaps the most intriguing one of all. If he is not running for re-election, Specter could tell many of his long-time detractors to go to hell by voting in favor, but he is already giving strong indications that he intends to run again in 2010, in which case he would have to vote against to protect himself from a strong (and currenly likely) primary challenge. Even if he decides to retire, my gut tells me he would still vote 'no', though.
(15) Bob Casey (D-PA). His support is no sure thing. Gun to my head, I say he votes ‘aye’, but a ‘no’ is possible.
(16) Mark Warner and Jim Webb (D-VA). Another tough set of votes. Both would face intense pressure to vote against the nomination. I think each of them could survive voting in support of the nominations, but it is easy for me to say that. Plus, if Webb becomes veep, his replacement selected by Gov. Kaine would have a hard time voting in favor with an election looming. Let’s say an unknown for both.

Tabulating these, we get five probable ‘no’ votes, six probable ‘yes’ votes, and the rest are toss-ups. Adding these to the guarantees, there would be

43 ‘nos’

48 ‘ayes’

9 that could swing either way.

Sure, my total puts Hillary just one vote away from confirmation, but several Senators could waffle or switch out of fear of the electoral consequences. Furthermore, the President’s staff and the Senate whip staff count votes far in advance. They would figure out these numbers before anybody, and if they were advising President Obama, they would assuredly tell him that it would be a very hard vote for many, many members of the caucus, and it could very well actually be voted down in the end. Potential failure by itself should be enough to deter Obama from putting the nomination up, but even disregarding this consideration, the nomination simply would not be worth the immense political capital it would take to get it through, assuming that is even possible in the end.

Conclusion. The reasons are many for why Obama should not and could not realistically put Hillary Clinton on the High Court. It would be a disaster for the young administration, and imperil numerous red state Democratic Senators who would face enormous consequences back home if Hillary were to make it to the Court with their votes.