December 17, 2007

Do voters worry that Bill Clinton will be a "'shadow president,' effectively circumventing the constitutional limitations on presidential service"?

Douglas W. Kmiec thinks this is a real worry that will dog the Hillary Clinton campaign. I know it bugs the hell out of me.

Anyway, Kmiec is talking about Bill receiving a formal position and comes up with the idea that H could appoint him to the Supreme Court! He mainly speculates about whether Bill would do it. In that regard, I note that Bill Clinton was always trying to appoint a politician to the Court (and only turned to Ginsburg and Breyer when his choices turned him down).

But isn't Bill spectacularly unsuited to the Court? His age and medical history alone would normally exclude him. And he'd have to recuse himself in some of the most important cases, it seems, as long as HC is Prez. But I'm sure he could handle the job, and it would be interesting to see how someone with his talents would transform the Court. The Justices are always so sober and scholarly. It seems to be a gray little world — for all its importance — but we all love a fish out of water story.

And imagine the hilarious turnabout when the Judiciary Committee calls in the witnesses to give him the Clarence Thomas treatment.

36 comments:

DaveG said...

You can be disbarred from being allowed to argue before the court but be seated on the court? I like the irony of that...

Ron said...

If we could get him federal funding to stay at Scores for 4 years would this fix the problem?

Wurly said...
This comment has been removed by the author.
Roger said...

Seems to me appointing a politician to the court isnt necessarily a bad idea. and Bill Clinton is certainly an adept politician who I suspect is a bit more pragmatic than his wife.

Trooper York said...

When President Warren G. Harding appointed William Howard Taft to the Supreme Court, there was some discussion as to the scandal his appetites could cause the court. Of course his appetites ran more towards mashed potatoes.

jeweejewish said...

Can somebody please show me exactly where in the piece the author says that this is "a real worry that will dog the Hillary Clinton campaign"?

Methinks Ann is projecting a bit...

BTW -- all the polls say that this is only a worry for the pundit class.

Stephen said...

Ann

I think you linked to the wrong clip. It's two guys arguing about wiretaps.

For once, I think we agree on this one.

Roger said...

Even IF voters worry about Bill Clinton being a shadow president, and I am not sure they are, somehow I can't see HRC letting Bill have big role when she will be exercising her authority.

SteveR said...

I consider it a ridiculous idea. Beyond the fact that it would be nepotism (he's certainly not qualified, even by a Harriet Meirs standard) it is not that action of a serious president.

Her basic dilemma is that she ought to make a pledge to not use Bill in any official capacity but yet she needs the support of those who want to revisit 1993-2000.

Its supposed to be about her.

George said...

Maybe Ambassador to Iraq, China, or Russia.

Not Supreme Ct. Justice, unless Hillary wants to humiliate herself.

Middle Class Guy said...

Bill Clinton, like his wife, has never been anything more than a second rate lawyer. Neither is know for their legal talent or intellect. They can win elections though. Too bad for Bill Justices are appointed, not elected.

Stephen said...

I agree that Hillary's run poses real questions about the spirit of the 22nd amendment, which was supposed to prevent the buildup of power over a lengthy time.

However, the idea that all Supreme Court justices have to be academics or accomplished Supreme Court litigators is ridiculous. We need more political figures on the court and one with the brainpower of Bill Clinton would be perfect, except for the conflict issues that the post raises.

Of course the Democrats would have to develop a spine and push him through the confirmation process: an unlikely occurence.

Ron said...

Hey, maybe they'd share control of The Button! Double the security of the Executive Branch that way!

Assumpsit said...

However, the idea that all Supreme Court justices have to be academics or accomplished Supreme Court litigators is ridiculous. We need more political figures on the court...

If you want politicians on the Court, why not just do away with the Court altogether? We've already got two branches lousy with politicians now. I've always thought of SCOTUS as above all the pettiness and hucksterism of the other two brances, Bush v. Gore notwithstanding. Putting a politician on the Court seems to me like giving a car salesman a stethoscope.

Henry said...

How about the House Democrats make him the House Chaplain. He's well qualified for that too!

Cabbage said...

He'd LOVE to have four fresh young clerks per term. He could pre-screen the applicant pool based on their facebook profiles.

hehehehe. "The clerks of Justice Clinton" would make for GREAT blogging material.

Trooper York said...

Does a Supreme Court Justice get to pound his gavel?

John Foster said...

Incredible. Just the suggestion of appointing someone to the Court who has been disbarred from it boggles the mind. Shows how weird things have become.

Cedarford said...

If it was not for Clinton's moral unfitness to be on the Court, his disbarment for lying under oath, he would be a great choice. Brilliant guy, near the top of his class at Yale Law w/o studying, Rhodes Scholar, taught law in Arkansas, AG, rich experience as an office holder.

I thought Hillary might have been a good one based on the glowing media comments on her being one of America's best lawyers - then I heard she failed the DC Bar Exam and rarely, rarely was party to formal litigation. Her job with Rose Law appears to using influence and connections to procure clients and put in 5-10 hours a week on it - like Peter Lawford's to JFK - trade on influence and his Rat Pack network to procure Hollywood starlets for the Kennedy Bros and be paid for it.

Simon said...

I really doubt that Hillary wants to put Bill in a position of working long hours with four twenty-something interns, I mean law clerks, who he's personally selected? Fortunately for the nation at large, this is one of those instances where personal motivations coincide with national necessity. If Bill wants an ongoing public role, do it the way John Quincy Adams and your own wife did: the honest way. Run for Congress.

Simon said...

Roger said...
"Seems to me appointing a politician to the court isnt necessarily a bad ide....a"

This goes for Stephen as well: unless you have a completely skewed view of what the judiciary is there to do, what could possibly be served by putting a politician on the court? A politician, it seems to me, is likely to approach the job as a politician, not as a judge, which recent experience (e.g. O'Connor, Warren) would seem to confirm. Even Hugo Black, one of my idols, took a while before he started getting it right, and Black was a towering intellect deeply respectful of our Constitution and the role of the judiciary, something that is almost completely missing in most modern politicians except as lip service and occasional support for a preferred outcome. So my question for anyone who wants a politician on the court is: why. I don't say that they have to be appellate judges or academics, but those groups do tend to be the place you'll find the relevant skillset and a paper trail to judge them by.

Roger said...

Geez, Simon: why did you have to ask why? Now you are gonna make me 'splain myself. I will stipulate that I am not learned at all in the law. And I will also stipulate that some background in legal study is a good thing. But clearly stare decisis is not a fixed thing, but a moveable thing. Witness Plessy and Brown; the impending decision where the second amendment may be judged as an individual or collective right; and perhaps the modification or overturning of Roe. I am sure the other examples where the prevailing political forces are changing. It is for those types of cases political judgment may be more important than the law in as much as the law appears to be in conflict anyway. To me, those large decisions are where some grounding politics may be an asset.

Now I am going to stick my fingers in my ears and say la la la la I can't hear you. :)

Trooper York said...

You know Simon, I agree with Roger. Some political judgment would not be remiss. I think Brennan was more of a ward heeler than a scholar. Law is too important to be left to the lawyers. Just the opinion of a regular guy for what it’s worth. Now back to Rudy Giuliani addicted to Rogaine jokes.

LoafingOaf said...

I worry about the voters, who won't tell that slimy, power-hungry Clinton couple to get off the stage.

hdhouse said...

ok legal eagles....do the rules about spouses testifying against spouse play out with the president?

certainly hillary will be impeached or at least some bozo will do an action alla Bill just for the sheer torture of it...and there might be a desposition or ten ordered....

just curious.

PatCA said...

Of course I worry about a shadow president. It's been done before--all very Peronista, to me. Blech.

Pogo said...

Too bad Sentaor Craig won't be around; maybe Bill could serve as his intern.

Simon said...

Roger said...
"But clearly stare decisis is not a fixed thing, but a moveable thing."

Well, no one disagrees that stare decisis is not an inexorable command, but I have no idea how that makes a case for putting politicians on the court. The decision to overrule an earlier case is a difficult and complex one, but the legitimate basis for doing so looks back to the original meaning, the antecedent jurisprudence and its subsequent effect in law. You don't overrule a case because it's politically expedient to do so any more than you refrain from doing so because it's politically expedient. Compare Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992) ("to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question") with id. at 959-60 (opinion of Rehnquist, C.J.) ("just as the Court should not respond to ... protest by retreating from the decision simply to allay the concerns of the protesters, it should likewise not respond by determining to adhere to the decision at all costs lest it seem to be retreating under fire. Public protests should not alter the normal application of stare decisis, lest perfectly lawful protest activity be penalized by the Court itself" (emphasis in original)). If anything, it seems to me, the likelihood that a politician might be sensitive to "alter[ing] the normal application of stare decisis" to tailor a result to political expediency militates for not appointing politicians to the court. (Brown is not to the contrary; Plessy was ripe to be overruled because it was an untenable reading of the equal protection clause, not because political winds had shifted direction in the intervening years.)

To be sure, as I've previously acknowledged, "there are some cases in which sources of law run out before the case is decided. There are some cases where plain old judgment is needed. For just such cases, you need to make sure you have good women and men on the bench - and I would rather a conservative formalist than a liberal formalist. But those cases are a very small minority of cases. In the bulk of cases, there is controlling law, either to apply or to choose between." The difference between Richard Posner and I on this point is really one of how often we think that situation genuinely arises. I think it is a very rare case where there is the need to create common law by choosing between to equally-persuasive arguments, and even if you had a politician who you had confidence in to confine their discretion and political judgment to those rare cases, I would still think a politician a bad fit.

D said...

Did either Bill or Hillary ever appear in court?

Methadras said...

How about we just call it even and keep either of these two away from the White House ever again. I'd celebrate that no matter who wins the Presidency.

Stephen said...

I didn't say nine politicians, I said a politician. And more than one should be fine.

I don't have all the particulars at my fingertips, but I believe that it is accurate that the present Court is unique in having a bench full of people who have not lived a little so that they can bring common sense to their task.

The Court has enough bloodless people who have been trained by the Federalist Society in the erroneous legal theory that our Constitutional law is in an 18th century straitjacket (or maybe chastity belt).

Your intern jokes are cheap shots, but I guess you enjoy them. You should be so lucky.

I do agree that the lying under oath and disbarment thing is a problem. Maybe U.N. Ambassador is a better choice as a little fudging from time to time seems to be the norm.

Simon said...

Stephen said...
"I don't have all the particulars at my fingertips, but I believe that it is accurate that the present Court is unique in having a bench full of people who have not lived a little so that they can bring common sense to their task."

Common sense is a construct of early socialization rather than a platonic concept, see Lakoff, MORAL POLITICS (1996), and in any event, your assertion could equally be rephrased that we have a superbly qualified bench that is far more likely to be animated by the requirements of the law than by concerns from practicality. I take it that you would not disagree with Justice Breyer's deeply impractical dissent in Hudson v. Michigan, or the court's deeply prosecution-unfriendly (yet entirely correct) decisions last week in Kimbrough and Gall. I don't want a court that compromises Constitutional rights because they think it's not politically expedient, cf. Maryland v. Craig.

"Your intern jokes are cheap shots, but I guess you enjoy them. You should be so lucky."

Given that most interns (and law clerks) are young folks, as a newcomer, there's no reason why you should know why that's so funny, but it's hilarious. Stick around, you'll figure it out.

"The Court has enough bloodless people who have been trained by the Federalist Society in the erroneous legal theory that our Constitutional law is in an 18th century straitjacket (or maybe chastity belt)."

Oh please. Pathetic. and not even accurate, for any number of reasons. But the comment does at least unmask your reasons for wanting politicians

NonVoxPop said...

Though I'd love Bill on SCotUS (I have a boy-crush on him), I think he's unfortunately too old. The latest two are younger, right? It seems SCotUS appointees are an important way for an administration to live on after it's moved on. Later administrations are thus stuck, at least in theory, with a check which not only embodies a political ideology different from theirs, but one that embodies the ideologies of several administrations. This check acts as a nice brake when the other branches want to "full steam ahead" in a way which might be a little too fast for the general good.
Re: politicians on the Court: C'mon. They're all politicians. You don't become a federal judge without being one, and constitutional interpretation is a politics in itself.
If Hillary wants to appoint someone with staying power, I say send Chelsea to law school stat!

B said...

~

And imagine the hilarious turnabout when the Judiciary Committee calls in the witnesses to give him the Clarence Thomas treatment.

Really!

Because it would be worth risking a Bill Clinton on the Court if got the "full Clarence"! Days (in his case, weeks!) of witnesses!

Delicious! He would finally be humbled enough that he could actually be trusted with some major decisions.

Seriously! Go for it!

~

David said...

Gee, nobody seemed too worried when Nancy Reagan was "shadow president."

The Exalted said...

wow, you're "worried" that bill will be a "shadow president?"

seriously?

have you read read any books on the current adminstration? any at all?