Justice Clinton? The Case for Putting Hillary on the Supreme Court

There has been some chatter lately that one option for Hillary Clinton is a potential appointment to the U.S. Supreme Court by President Obama. This is an extremely interesting possibility, and one worthy of deeper examination. This post sets out the best argument I can muster of such an appointment. In the next post, I will make the stronger case against Justice Hillary Rodham Clinton along with an overall verdict.

The case for Justice Clinton. While HRC has been casually mentioned as a potential Justice on-and-off for some years, this is a fairly radical plan, and one that would encounter stiff resistance. Nevertheless, I believe this arrangement would be beneficial to both sides for the reasons outlined below.

What position, if any, could Hillary want if she opts to leave the Senate? Assuming that she does want to leave the Senate in the next few years, this is a tough question. Still, while Clinton was defeated by Obama, there are numerous real possibilities for her going forward. Let’s look at them one at a time.

New York Governor. There has been talk that some bigwigs have tried to get Hillary to consider running for New York governor in 2010 with Spitzer now out of the picture. I find this scenario unlikely for several reasons, both political and simply pragmatic. First, governor is a stepping stone to be President. With Hillary’s defeat in the primary, her ambitions should be dead. Maybe she harbors hopes of running again in 2012 or 2016, but she has to know that being able to launch a second run and then being successful are very unlikely. Besides, nobody likes a loser, particularly in the Democratic party (John Kerry can attest to this). A repeat of Nixon's feat in 1968 (following his defeat to JFK in 1960) is incredibly tough.

In other words, there would be no point for Hillary to be governor since her chances of being President are over. Governor is a means to an end, and in this case it would probably be an end itself, one that would not be attractive to Hillary. Why the heck would anyone -- no offense to NY up-staters as I used to be one -- want to move from tony Georgetown to dreary Albany? No one in their right mind would make this choice. This is the same reason Obama supposedly rejected early on in his Senate career moving to Springfield to be IL governor in 2010 as a springboard for a 2012 or 2016 WH run. Hillary knows life in the U.S. Senate as a show-horse would be a lot easier and sweeter than taking on the thankless job of running a horribly dysfunctional state government with no rewards coming afterwards.

Second, even if she wanted to run, the dynamics would be difficult if David Patterson stays to pursue his own run, as now looks likely. Pushing out a blind, black man to further her ambitions yet again would rub a lot of people the wrong way, and not just NYC African Americans. It is uncertain that NYers would again allow HRC to blindly use the state to further her ambitions. What happened in 2000 when HRC stepped over Rep. Nita Lowey was one thing, but this would be another with her coming off of a pitiful and bitter WH loss. Hillary can let Andrew Cuomo try to force Patterson out, only to be trounced by Mike Bloomberg in the end.


Senate Majority Leader. So we can cancel out a gubernatorial run in my opinion. What else? There has also been talk that a turn as Senate Majority Leader could be in the cards, but I find this too unlikely. First, the internal dynamics of the Senate are not something any one person or small group can just control. As Trent Lott has said many times, working in the Senate is like herding cats, and each Senator can do whatever he or she pleases. I don't know if a small group of Dems could just unilaterally decide that Hillary get the position as a sort of consolation prize.

Second, I don't know if Chris Dodd, Dick Durbin, and Chuck Schumer, all extremely capable legislative leaders with their eyes in the job, would just set aside their own ambitions to give Hillary a soft landing. Maybe they would, but it would be difficult.

Third, Harry Reid is going to occupy the position until at least 2010, and at that point it is likely he will run for re-election and probably win (though Rep. Jon Porter might be a tough opponent). If Reid were to lose or retire, it would be 2011 at the earliest before Hillary could go for it, and for these reasons it would not just be something we could predict and then ensure happens all the way in January 2011 -- over two years after this primary race has concluded.

Finally, it is my belief that while she would go back to claim her Senate seat -- who wouldn't, it's a great gig -- it is something she would not do with great happiness. Let's be honest, the Senate has been a stepping stone for Hillary since she first started that listening tour with poor Daniel Patrick Moynihan at her side. It was a means to an end and not an end in itself. She will go back to the Senate because she will have nothing else as big, but there is no doubt it is not something she'll love doing for the rest of her life. Her ego just won't allow it. If she can, she wants something bigger.

Vice President. On the usual list, that leaves either the cabinet or veep, and both will not happen. First, veep. There has certainly been a great deal of discussion about this with many, many, many people advocating the so-called "dream ticket" of Obama-Clinton. For once, I am in full agreement with Nancy Pelosi that Obama-Clinton will not happen. We could discuss this for hours, but my first instinct is that Hillary's does not want to be #2 to the guy who beat her. She has been angling for the presidency for years, and her loss to the young upstart Obama -- who was elected in but 2004! (how angry this must make her) -- would be unbelievably hard for her to do coming off of a bitter loss. Sure, if Obama decides to offer the slot to her, she would have to take it as rejecting it would constitute a slap in the face and tacit indicator that Hillary Obama to lose in November. No matter anything else, Hillary could never allow this to happen.

For whatever political reasons you can throw at me, my gut tells me she won't want it; besides, in the end, her addition to the ticket would not do much in the way of strengthening the ticket. Sure, it would heal some wounds with base Dems and women who are with Hillary now, but the key to winning in November is not just carrying the base but also winning enough independents from McCain. This is a whole other treatise, but independents win big national elections. They won it for Bush in 2004, and then gave the Democrats Congress in 2006. Of course, I am presuming that the Hillary supporters will come back into the fold, but this is looking more and more likely by the day.

Finally, I do not think that Obama has any interest in teaming up with his former rival. Staging unity rallies is one thing, but there is clearly tension between Bill and Hillary and Team Obama, tension that would ensure that a political marriage would not be entirely sunshine and buttercups. Only if Obama is genuinely worried about losing the female vote would he consider the pairing, and at this point, as noted above, I think this is unlikely.

I acknowledge, though, that this is certainly something we could debate at length. Nevertheless, for these and other reasons I will spare you from hearing, I can't imagine Hillary asking for veep or being offered it outright.

The Cabinet. Second, the cabinet. As I see it, there are only two positions she would even consider: Secretary of State or Attorney General. Every other position is way "below" HRC -- she would not touch Secretary of the Interior or HHS with a ten-foot clown pole. I think that while AG is a big deal to lifetime lawyer HRC, it is not big enough. Besides, what's the point? She would serve as AG for a few years -- incidentally, constantly working under the orders of President Obama -- and then be forced to retire from public life with her Senate seat long gone. I think given this option, she would choose going back to the Senate where she has the seat for life and a daily platform to say what she wants and still get on TV regularly.

In terms of SoS, while I think that IS a big enough plum, she doesn't have the foreign policy experience to carry it well. As with AG, she would be working at the direct behest of Obama, something that would not sit well with her, despite the glamour and inherent influence of the position.

Additionally, HRC would hardly enjoy monthly pilgrimages to Capitol Hill to testify before hostile Republicans who would do their damnest to ignore her work and dredge up Whitewater and other lovely and irrelevant things. Besides, I can't see Obama as happy to hand the position to Hillary and then watch her going around the world with Bill and sometimes getting credit for any significant foreign policy accomplishments. As Madeline Albright and Warren Christopher proved, SoS should be someone capable, but also an individual unlikely to steal the spotlight or the credit from the President. So, I just don't see a cabinet position happening for HRC.


United States Supreme Court. This leaves one last option that I think would rise above all the rest in appealing HRC. The United States Supreme Court. For several reasons, there is no doubt in my mind that this position would at the very least be extremely appealing to Hillary, probably the most appealing thing outside of being President.

As we all know, the Supreme Court has become the most highly-charged legal and political battleground in the country. In terms of political appeal, it has become arguably the single most-watched venue in the nation. Big decisions involving a host of areas including abortion, prayer in schools, environmental protection, and other base political issues are treated as titanic news by the media. Important judicial nominations are the single biggest events on Capitol Hill short of debate over war. The words and statements of the nine -- yes, just nine -- Justices are scrutinized across the country as if they were written on stone tablets. In short, the only stage bigger and more exclusive is the presidency itself.

SCOTUS would be very attractive to HRC. There are obvious reasons why appointment to the High Court would be very attractive. HRC is an attorney, a smart one at that, and prior to being involved in politics she worked for the Watergate Committee out of law school, was an active member of the bar and has thought and expounded deeply on many of the legal questions of the day. She's not just a politician who happens to have a JD like many, many members of Congress. As a result, in many respects she would be a natural fit on the Court and would be well equipped to bring a very bright and liberal perspective to many of the controversial issues that come before the Justices. In short, she would be able to do the job, and do it well (at least from the Democratic perspective).

From a personal standpoint, I think Hillary would love the opportunity for a host of reasons. First, it would keep her in the national spotlight not just today and tomorrow, but potentially for decades. She would remain one of the most influential national figures, and would play a pivotal role in shaping the nation's jurisprudence. Second, it would allow her to become not just a national figure, but one of the nation's top liberal figures. The possibility of her firing back at Scalia, Thomas, Roberts, and Alito over the years on abortion, Federalism, and environmental cases would be a delicious possibility to Hillary and would lionize her further in the Democratic community. Third, the position would allow her to craft a tangible legacy for herself that would last for years to come. A legacy, mind you, that could finally put her liberal accomplishments beyond her husband's. Fourth, the job would be for life with virtually no chance of ever being fired. She can finally say what she wants -- after years of biting her tongue in the Senate to burnish her "moderate" credentials -- and not have to worry about the political consequences, at least to her own career.

An HRC SCOTUS promise would be attractive to Obama. There are also big reasons why this move would be attractive to Obama. Putting Hillary on the High Court would help heal any lasting rifts between Obama and woman still festering from the hard-fought primary race, it would remove Hillary as a political obstacle of any kind permanently, and in the end it would put a very reliable liberal vote on the Court for hopefully 20 years. It would be a home run among Dems and liberals. Sure, Barack would have to give a great position to someone he currently hates, but if it can get her out of the race, I think he'd live with it. In politics, enemies can become quick, albeit uneasy allies if it is in the interest of both parties.

Obstacles in the Senate. Going further, even if Obama wins, if the Senate is close, her nomination could be killed by a Republican filibuster. I think, however, that the Democrats are going to secure four or more new Senate seats in November (VA, NM, NH, CO, plus potentially MN, MS, OR, and AK), making it much more difficult to block a Clinton nomination. This is not to say that confirmation will be easy; Hillary is a vilified figure on the right, and the prospect of putting her on the Supreme Court to vote to uphold Roe for another 25 years would not go over well in their caucus, to put it quite mildly.

Additionally, despite Republican promises to not filibuster judicial nominees, we know that promise would probably be worth less than three cents the instant a Democrat is in the White House. Republicans have spent the last eight years whining and screeching at Democratic filibusters of about 2% of Bush's circuit court nominees, but when it comes to hypocrisy, we all know the GOP takes a back seat to no one. Furthermore, any belief that the Senate GOP would let Hillary sail through because she is/was a colleague are foolish; if the Bush years have proven nothing else, it is that the judicial nomination process is now free of any party comity or bipartisanship for years to come.

There is a good chance that Senate Republicans would oppose, but ultimately let through the nomination. Still, with all of this in mind, I think her nomination would be approved for two key reasons. First, with a much stronger minority, and Senators Snowe and Collins still there (yes, I am assuming Collins will win in November; I have been saying for some time that she is too popular to be compared with Lincoln Chafee), mustering 41 votes to block the nominee will be hard.

Second, I think in the end Republicans might want Hillary ultimately confirmed -- after a nasty fight, of course -- for the same reason many GOP strategists like having Roe v. Wade around: she would be the perfect foil for their campaigns and fundraising for years to come. Sure, they'll put a hard fight and yell and scream about how she is too political, too tainted by scandal, and too liberal to be a great jurist, but in the end it would serve their political purposes to not filibuster and allow her to be ultimately confirmed on a party-line vote. In the long run, the Republicans love running on social wedge issues -- as their terrible economic policies don't really appeal to much of their perpetually-exploited-to rural base -- and believe that it is the best way to win against Democrats. It helped them cobble together enough votes to win in 2000, and worked in similar fashion in many races in 2002 and 2004. It is a proven formula to them, and having Justice Hillary Rodham Clinton handing down liberal decisions for the next 20 years would be a fundraising and political gift that would keep on giving for their base supporters.

For these two reasons, I think the Senate Republicans would ultimately let the nomination go through, after, of course, putting up a huge fight about it.