May 21, 2008

The absolutely insane talk of Obama promising Hillary Clinton the next seat on the Supreme Court.

I have avoided talking about this but now there's a WaPo column on the subject and I can't stand it anymore. James Andrew Miller writes:
It's likely that the next president will face at least one Supreme Court vacancy. Obama should promise Hillary Clinton, now, that if he wins in November, the vacancy will be hers, making her first on a list of one.
How could Hillary Clinton possibly be considered an appropriate Supreme Court nominee?
Obama could ... appreciate Clinton's undeniably keen mind. Even Clinton detractors have noted her remarkable mental skills; she would be equal to any legal or intellectual challenge she would face as a justice. The fact that she hasn't served on a bench before would be inconsequential, considering her experience in law and in government.
Now, why did WaPo publish this? Miller was a special assistant to Senate Majority Leader Howard H. Baker Jr. and he has a book about the Senate, but he sounds like a complete fool here. His notion that Hillary Clinton belongs on the Supreme Court is just: Everybody seems to think she's pretty smart. And it doesn't even matter that she has no judicial experience and has never done anything to indicate that she is any sort of a legal scholar or has anything like a judicial temperament.
If Obama were to promise Clinton the first court vacancy, her supporters would actually have a stronger incentive to support him for president than they would if she were going to be vice president.
No, they wouldn't! They'd think that Obama shouldn't be trusted with the responsibility of appointing federal judges.
Instead of subjecting herself to a long wait and another possible defeat, [Hillary] could don one of those roomy black robes, make a potentially ineradicable impact on the course of the republic -- and never again have to worry about being liked.
"Roomy black robes" — is he calling her fat?
Senate confirmation would be all but certain, even putting aside the gains that Democrats are likely to make in November.
Why not just beg people to vote for McCain? The Senate is going to rubber-stamp whatever unqualified, politicized judicial nominations a President Obama would send its way? Well, then, we must have the opposite party in the White House!
President Obama would engender praise (at least from Democrats) at the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito. Clinton's gumption and determination might make her one of the most powerful forces ever on the court, particularly when it comes to swaying other justices when the court is closely divided.
Miller thrills at the prospect of law as a raw political battle. Democrats who respect the rule of law and want rights to be taken seriously should not cheer at that spectacle. And conservatives will once again get strong traction arguing — as McCain did the other day — that their judges are the ones who are faithfully subservient to the law. I know liberals don't believe that, but they must present themselves as wanting judges who bring legitimate interpretative skill and diligence to their task and operate independently from politics. Or all is lost.

134 comments:

SGT Ted said...

It just seems to be a rehash of the leftish "Hillary is the Smartest Woman on the Planet" nonsense from the 1990s.

Because everyone knows that an attorney who failed the DC bar and was fired from her first lawyer job for conspiring to deny a sitting President his Constitutional rights would make a GREAT Supreme Court Justice.

Simon said...

Poor politics vel non, it's illegal: should Obama "directly or indirectly promise[] or pledge[] the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy[, he] shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both."

Henry said...

I think Obama should promise Hillary that he'll make her head of Mensa. If she's not overqualified.

former law student said...

Fine if you want outcome-based legal decisionmaking. Her insistence that in spite of the established party rules, as a consequence of being the sole candidate on the ballot that she should get the Michigan votes is the height of chutzpah.

Based on her disrespect for rules, the only appropriate public office for Hillary is Queen of Everything.

P. Rich said...

Damn. An excellent piece I find myself in agreement with. Must. Get. New. Prescription.

Balfegor said...

I love the "stupid" label.

Original Mike said...

His notion that Hillary Clinton belongs on the Supreme Court is just: Everybody seems to think she's pretty smart.

Hey! I'm pretty smart. [blushes] Can I be on the Supreme Court too?

Simon said...

And, come to think of it, in "counsel[ing]" that Obama violate 18 U.S.C. § 599 ("Obama should promise Hillary Clinton, now, that if he wins in November, the [next Supreme Court] vacancy will be hers"), Miller has potentially implicated himself as an acessory under 18 U.S.C. § 2 should Obama take his advice. Paging Jeralyn Meritt!

George said...

She needs a roomy robe because she's got wide margins.

kimsch said...

Of course, since Barry taught ConLaw, he could advise his new SC Justice when she had a question...

RMc said...

I know liberals don't believe that, but they must present themselves as wanting judges who bring legitimate interpretative skill and diligence to their task and operate independently from politics.

Liberals believe all courts are packed to the brim with loony right-wing judges; therefore, they have every right to get some of their kind on there for "balance".

Bruce Hayden said...

It is pretty silly. I don't remember the last time that someone went onto SCOTUS w/o time on an appeals or state supreme court bench. White maybe - he was deputy AG under Bobby Kennedy before ascending to the high court.

Just being a good lawyer is not enough. Just being smart is not enough. There are plenty of very smart lawyers out there, many arguably smarter than Hillary! If you try to skip the appellate court gig, you get a Harriet Meirs. Hey, even Bob Bork did an appellate gig, despite having far better legal and academic credentials than Mrs. Clinton.

Simon said...

Bruce Hayden said...
"I don't remember the last time that someone went onto SCOTUS w/o time on an appeals or state supreme court bench."

Powell and Rehnquist. More recently than that, O'Connor served on a sub-Supreme state appellate court.

Simon said...

(which doesn't mean I disagree with your point, Bruce)

Henry said...

If Obama is going to promise Hillary Clinton the next seat on the Supreme Court, shouldn't he have to preselect her clerks as well? The voters should know who will write her opinions.

Anyway... Wow this is daft. It isn't even consistent in its own universe. Miller proposes that a partisan politician with no judicial experience who he admits isn't even likeable, will be somehow especially good at "swaying other justices."

Zachary Paul Sire said...

Ha!

I love the "fat" label.

Hillary is the new Harriet.

Bruce Hayden said...

As to Barrack Hussein Obama having taught Con Law, BFD. He too would need to do a gig as an appellate judge before going on the Supreme Court.

The problem is that Con Law is only a small fraction of what the Court does - maybe even the easier part. Much of the job involves parsing statutes, rules, contracts, etc. Neither of these two probably has as much experience in this area as the average lawyer, even ignoring their lack of appellate experience. Hillary! did have some limited experience in this while at the Rose Law Firm. Obama has almost none. (Of course, neither does McCain, but since he isn't a lawyer, he would never be considered for SCOTUS).

Seven Machos said...

Here's the general rule: people auditioning for the big stage need to show that they can do the little stage. That's why few serious people supported H. Ross Perot, or Lee Iacocca, or Steve Forbes for president. (We may make an exception for you if you've been a brilliant general in a really vital war.) Hence, no one gets to be a Supreme unless they have shown that they can do hit .300 and drive in runs in the minors, or something like that.

The same principle applies most everywhere else in the country, too. It's a good principle.

Bruce Hayden said...

Simon, thanks for the correction.

I do though think that the experience that O'Connor got on the AZ Ct of Appeals was relevant - it was appellate experience, though apparently only two years worth.

Also, the Maricopa Cty. Superior Ct. (where she served for 4 years) does hear appeals from the Justice Courts. Not much appellate experience, but I did go up before a judge there twice appealing a conviction for attempting to exit a freeway where prohibited. The Justice Court just couldn't quite grasp inchoate crimes and that they were not applicable to traffic violations. Not surprising really, since most of the AZ JPs still weren't lawyers, last I knew. Luckily, the Superior Court judge was a lawyer, and justice (or at least I) prevailed.

Bissage said...

The female law clerks would have to come up with some sort of early warning system for when the spouse of Justice Clinton comes for a visit.

Imagine the blur of motion.

Hey there. How y’all doing? What’s a pretty young thing like you doing surrounded by all these musty ol’ books?

*wooosh*

Revenant said...
This comment has been removed by the author.
rhhardin said...

Hillary could be on the court under the legal doctrine of uxor turpis.

Too many jims said...

Maybe the next Washington Post op-ed will be a column by a former special assistant to George Mitchell or Tom Daschle. I suggest they write about what a great idea it would be (for the sake of Republican party unity) for McCain to promise the Secretary of Defense slot to Cheney and the Treasury post to George W. Bush.

Trooper York said...

There is some precedent for the appointment of a political figure to the court in the service of former president William Howard Taft as Chief Justice. The only precedent for the appointment of a spouse was of course when Rudy Giuliani appointed Judge Judy to the seat formally held by Judge Wapner on the People’s court.

Trooper York said...

Unfortunately, Hillary Clinton is not as qualified as Judge Judy.

Think about that one for a while.

Bissage said...

I will vote for Obama if he promises to put this highly esteemed jurist on the high court.

The Drill SGT said...

Bruce and Simon,

o'Connor served in all three branches of government.

- couple of execuive branch positions including AZ Asst AG

- AZ Senate Majority Leader

- two AZjudgeships

she understood the roles

The Drill SGT said...

ann said...that their judges are the ones who are faithfully subservient to the law. I know liberals don't believe that, but they must present themselves as wanting judges who bring legitimate interpretative skill and diligence to their task and operate independently from politics.

Remember Obama's vote against Alito? How Alito didn't feel for the little guy?

The only thing worse than Hillary making legislation from the bench would be Edwards doing it.

PatCA said...

I would have guessed other Dems would welcome her appointment to the SC. You know, a "fighter" for abortion rights and all that. Most Dems at this point think every governmental post is an advocacy or social engineering position, so why would this one be different?

John Stodder said...

All of Althouse's points are extremely well taken, but despite that, I believe it's a virtual certainty Obama will promise Hillary the next seat on the Supreme Court (unless Clarence Thomas dies.) He's not doing this for any other reason than to win the presidency and then to have her safely tucked away and out of his life as a political force. I'm sure every objection Ann raises has occurred to Obama himself, but between the devil of HRC on the Court and the deep blue sea of HRC as VP, there isn't a choice. Michelle simply won't allow it.

So now it'll be Hillary needing a food-taster! Oh, and Antonin Scalia ought to watch his step too.

Steven said...

...the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito

They would rip her positions to shreds.

MadisonMan said...

I believe it's a virtual certainty Obama will promise Hillary

The beauty of a belief is that it needs no facts to back it up.

I will say that if (a tremendously large IF) it does happen (count me among those who would be very surprised), it would be very very interesting to see if any Democratic Senators vote against her confirmation.

vbspurs said...

"The absolutely insane talk of Obama promising Hillary Clinton the next seat on the Supreme Court."

Not only did I agree with this sentiment last night, vehemently, but I keep wondering to myself why this story is being pushed?

Because you know this is not what Hillary wants.

Why, WHY, would any woman as ambitious as Hillary Clinton, who wants genuine power give up a chance at that, for pie in the sky?

Because it's not certain that Obama will win anything at this point. Neither the nomination (though it's very likely), nor the Presidency (without her, unlikely).

So basically he would be promising her nothing, because nothing is what he has right now.

That is assuming she would want the SCOTUS position, which I have absolutely no doubt, she doesn't. She'll be 69 in 8 years, 73 in 12. The lady won't stop seeking the nomination, even if she has to divorce Bill Clinton to do it.

Instead, this is surely a clear example of media punditry trying to work a story of a non-existent angle.

They might even be trying to inject the idea into Hillary and her adviser's mind.

Cheers,
Victoria

shade said...

There's at least some precedent for it, though not directly on point. Per Wikipedia, Earl Warren was a favorite son candidate for the Republican nomination in 1952 but withdrew in support of Eisenhower. Of course, Eisenhower nominated him to the Supremes in '53. I don't know if evidence of a quid pro quo (other than res ipsa loquitur (hey! two Latin phrases in one sentence!)) has ever been found, though.

shade said...

Here's more on Eisenhower-Warren:
http://query.nytimes.com/gst/fullpage.html?res=950DE6D91F3AF937A15751C1A96F948260

vbspurs said...

The more I think about it, the more this story gives me the dry heaves.

It's not entirely sure a case involving the Clintons, past or present, will one day not reach the Supreme Court.

She would then have to excuse herself from the bench when Bill shows up.

Seriously, though, Simon -- were there ever conflict of interests with William Howard Taft, when he was Chief?

Let's try to get some knowledge from this otherwise insane topic.

Cheers,
Victoria

Henry said...

Why not make her chairperson of the Joint Chiefs of Staff? Even Clinton's detractors have noted her remarkable defensiveness. Imagine her going toe-to-toe with the likes of General James E. Cartwright, USMC.

Or why not head of the CIA? Even Clinton's detractors have noted her remarkable knack for secretiveness. She would be equal to any of the demands for paranoia and dissembling she would face as head of the CIA.

John Stodder said...

The beauty of a belief is that it needs no facts to back it up.

It's all speculation. This site could become a once-a-month newsletter if speculation wasn't permitted.

But I'll defend this one. I bet it's at least an Obama trial balloon. You're not going to see any Democrats or Dem-sympathetic media saying it's a bad idea, because that would be perceived as compounding the "Democratic Party is sexist" meme that is all the rage now.

But to reiterate, the biggest draw this idea has for Obama is that it is at least as big an offer for Hillary as the offer of VP.

Obviously, if he loses, she gets nothing in any scenario. Senator Obama, the presidential loser, isn't going to be able to deliver on any promises. If he loses with HRC on the ticket, she's somewhat tainted as well, so that's another reason for her not to insist on that gig.

The "It Takes A Village" Hillary would love to be an activist judge, in my opinion. She would figure out a way to turn the job into a very public bully pulpit, despite tradition and precedent. It would be all about bringing law to the people, involving moms, town halls for blue collar workers, etc. etc.

Who would stop her? Justices speak in public now. Building on that, she could go on a "listening tour" on constitutional issues, a perpetual campaign for where she wants to take the court.

pct said...

The idea may be unwise for the country, but it is certainly not without precedent. John Marshall had no prior judicial experience. Neither did Earl Warren. As others have mentioned, Warren's appointment was widely believed to be a payoff.

Denever said...

"The only precedent for the appointment of a spouse was of course when Rudy Giuliani appointed Judge Judy to the seat formally held by Judge Wapner on the People’s court."

Well, most judges are someone's spouse (Justice Souter is an exception). But since Judge Judy has never been married to Giuliani or Wapner, what does "appointment of a spouse" mean in this context? Are you confusing Jerry Sheindlin's wife with Giuliani's ex-wife, Donna Hanover, who sometimes played a judge on Law & Order?

peter hoh said...

Roomy robes does not suggest that Hillary is fat. Rather, the implication is that once on the bench, she'll never have to spend any more time on a treadmill.

vbspurs said...

Henry wrote:

Why not make her chairperson of the Joint Chiefs of Staff? [...]
Or why not head of the CIA?


Because she's had the brass ring.

She knows what being President of the United States of America is close-up, and what it represents to her gender and generation.

It's what kept her going during the Gennifer Flowers, Juanita Broderick, Paula Jones, and Monica Lewinsky scandals and many other scandals we'll never be privy to, when she knew she was betraying all the tenets of feminism by staying with a man who treated her like trash.

The thought of being head of the CIA didn't burn inside her since she was a kid. The thought of being on the Supreme Court wasn't what allowed her to face the light of day when her husband stood impeached by the House of Representatives.

These positions are sloppy seconds given to her by men of lesser calibre, and Hillary Clinton better than that.

Padre Steve said...

This is just more proof of the left's sense of entitlement. Let's pray Obama never gets a chance to name any judges and gets a chance to finish his term as Senator. God bless! Padre Steve

Revenant said...

Could someone explain how, exactly, this nomination is supposed to get past the inevitable filibuster?

Trooper York said...

Well you see Jerry Sheindlin supplied Rudy with the pretty gowns he wore on Saturday Night Live and when he just wanted to feel pretty. They both liked to dress up in pretty gold lame gowns and smoke cigars in a cross trainers bar in Midtown. In return he appointed Judge Judy to the bench. She got the job on her husbands coattails, or dress tails so to speak. In return Judy and Jerry were the soul of discretion. Being elected because of sympathy due to her husbands sexual indiscretions are exactly analogous don't ya think?

Trooper York said...

I mean, I don't know if that's true, I just heard it on the Chris Matthews show.

EnigmatiCore said...

Well, most judges are someone's spouse (Justice Souter is an exception).

But if ever New Hampshire follows the lead of Massachusetts or California, that could very well change.

Chip Ahoy said...

Yuk. This Militec® gun oil tastes awful.

Methadras said...

Ann,

I'm starting to believe the way you write out your labels, that you are doing it in a specific way to conjure a certain type of imagery. I love this one too. But let me break it down.

Labels: (Alito, Clarence Thomas, fat,) (Hillary, lameness, law,) (McCain, Obama, partisanship,) (Scalia, stupid, Supreme Court)

Is this deliberate or just the way your labels sprung forth?

vbspurs said...

Is this deliberate or just the way your labels sprung forth?

Do you know how mysterious labelling on Blogger is?

When I click on one, then another until I'm finished, when I press "post" I am flabbergasted that my last choice is the first, and so on.

So maybe you're right and sure, it's probably occured to us that's what Ann is doing.

But Blogger has tricks up its sleeves which confounds us, the bastard.

EnigmatiCore said...

"Is this deliberate or just the way your labels sprung forth?"

You know you really need to take a break from partisan politics, because it is infecting your soul and impacting your very intelligence, when you see political slams that appeal to you (or, if you are one of those angry and paranoid types, that offend you) rather than a list arranged in alphabetical order.

paul a'barge said...

How?

Harriet Myers.

Pastafarian said...

Ann --

I'm starting to believe some of your liberal detractors, who have accused you of being a closet conservative. Only a conservative would object to a purely political appointment to the Supreme Court.

For most Democrats, I'd wager that the biggest disadvantage to a Hillary appointment is her age. They'd probably rather find someone equally unqualified, committed to socialism, in her early 40s, excellent health, family history of longetivity, etc.

John Burgess said...

With Ted Kennedy about to leave this mortal coil, HRC stands to become the Senator to whom all pay obeisance. That's far more power than any USSC Justice could ever hope to hold.

The Exalted said...

the only result of this inane and preposterous story is to do damage to obama -- therefore, i have some ideas as to why it was written

Revenant said...

How? Harriet Myers.

How what Harriet Myers?

vbspurs said...

If things don't work out for her, Hillary could always go work for KFC.

Beldar said...

Obama's votes against Roberts and Alito prove that he is already completely disconnected from the kind of merits and qualifications analysis that you're arguing, Prof. A. Yes, "Democrats who respect the rule of law and want rights to be taken seriously should not cheer at [this prospective] spectacle." But Obama isn't one of those Democrats.

Since, instead, he views the key qualification for the SCOTUS as being how one reacts from the heart, why should he not make the promise of a SCOTUS slot to the Clinton who taught con-law instead of procedure, to the Clinton who more famously "feels [everyone's] pain" more than any politician in modern history?

It's surely no more outrageous to appoint someone who resigned from the bar of the SCOTUS (under threat of immediate involuntary disbarment from it, after his Arkansas license suspension) than to appoint someone who flunked the DC Bar exam.

Iapetus said...

"Clinton's gumption and determination might make her one of the most powerful forces ever on the court,.." This has got to be one of the stupidest comments ever uttered by man. He sounds like Lou Grant talking about Mary Richards on the Mary Tyler Moore show ("You've got spunk. I like spunk!"), not about whether someone is qualified to serve on the US Supreme Court. Good grief. Shoot me now. Please, I beg you.

Trooper York said...

Lou Grant: You’ve got spunk.
Mary Richards: Thank you.
Lou Grant: I hate spunk.
(Mary Tyler Moore show, 1970)

Sharpen up! Get it right.

The Ghost said...

Talk about a dream come true for the GOP. They would get the fundraising and political windfall of a Hillary presidency without even having to endure her as President.

Hers would be a disaster as far as SCOTUS nomination processes go. Most judicial nominees are low-profile enough (read: nobody knows or cares anything about any of them except legal wonks) that it's difficult for the opposition party to drum up an outcry. When Bush nominated Roberts and Alito, the public response ranged from utter indifference to mild irritation at the politicking. Hillary Clinton would be a very different story.

In any case, I think this is all moot. Reading legal briefs and being ignored roughly 364 days a year isn't Hillary's idea of power.

Clint Wolbert said...

Ann,

You never stated exactly WHY you think putting Clinton on the Supreme Court would be such a bad idea. From Obama's perspective, it wouldn't necessarily be a bad idea. He eliminates a potential 2012 primary challenge, he gets twenty years of a reliably liberal-ish vote on the Court, and he's hailed as a Lincolnesque Team of Rivals builder.

From the Court's perspective, you obviously know that many politicians have made it to the high court, chief among them Earl Warren, the former governor of California. The trend of appointing only federal circuit court judges is a relatively new phenomenon. What exactly is the problem with a Justice Clinton?

Trooper York said...

Because it against the laws of God and man to put the words Justice and Clinton in the same sentance.

Seven Machos said...

Clint -- There's the veneer of a nonpartisan hearing.

Simon points out that it's illegal to make such a promise.

Clinton isn't qualified, nor has she the temperament.

What else do you want?

Wouldn't you also say that judges, like everyone else, should prove that they can do the job at lower levels first? And wouldn't you say that it's a good idea to avoid putting politicians in the Supreme Court?

ricpic said...

These positions are sloppy seconds given to her by men of lesser caliber, and Hillary Clinton better than that.

Name some of these men of lesser calibre, won't you please, O divine Vickums. I can't think of anyone of either sex with less calibre than the utterly predictable rote Marxist, Hillary. But please, enlighten us, dispenser of pure undiluted bilge.

Cheers,
ricpic

Seven Machos said...

The first 100 hundred names out of the Boston phone directory, sans the attorneys?

We don't want yahoos on the Supreme Court. I mean, for crying out loud, look at Roe. Look at the entire Warren era.

Clint Wolbert said...

Seven,

It's perfectly fine to have politicians on the Supreme Court. Sandra Day O'Connor was a politician, along with many other former justices. Politicians add to the diversity of experience on the court, not to mention gives the Court the voice of someone who actually knows how the statutory sausage is made.

Other than that, a Yale Law graduate, former partner of a law firm (I know, I know) and United States Senator all seem to fit the bill when it comes to qualifications. It certainly suffices for constitutional qualification. You don't even need a law degree to qualify for the Supreme Court under the constitution. I don't think either of us knows enough about her judicial temperament to discuss whether hers is sufficient for service on the Court.

PHenry said...

I really don't see how Hillary is any less qualified to be on the SC than Obama is to be president?

TitusTheLookOfLove said...

Three to Four postings of Obama is awful and Hilary is awful are not enough.

I expect 8-9 a day at a minimum.

That is the independent, neutral, moderate thing to do.

Thank you.

Seven Machos said...

I don't think either of us knows enough about her judicial temperament to discuss whether hers is sufficient for service on the Court.

Dude, you made my argument for me. We should have a very good idea about the judicial temperament of the nine people we are going to give lifetime appointments to the most powerful court in the land. We want them to have the right kind of temperament for judging -- which is far different than legislating or executing. Few other criteria are as important and it's one of those things that you don't know until you see it.

As you suggest, and I agree, I don't think either of us knows enough about her judicial temperament to discuss whether hers is sufficient for service on the Court.

Therefore, Hillary Clinton should not be on the Supreme Court.

QED.

Seven Machos said...

See, Titus. That's funny shit. Perhaps political was a poor choice of words.

Just be funny. Don't not be funny.

Revenant said...

It certainly suffices for constitutional qualification.

Especially since there aren't any constitutional qualifications for the Supreme Court.

ricpic said...

Seven Marcos and Seven Marcos alone knows funny. When he says jump the only proper response is how high, ain't that right Mr. Measurer and Judger of All things?

Iapetus said...

I stand corrected, Trooper York. Spunk is definitely out. You can pull the trigger now.

Clint Wolbert said...

Nothing was demonstrandum there. My point was that you and I aren't in a position to put Clinton's temperment on the table because you and I don't know anything about it. Which doesn't really matter, because we aren't in a position to make the decision.

The Senate, where Clinton has worked for the past seven years, has the task of confirming her if she's appointed. Luckily for the senators, they know a bit about her temperment. (She's worked across the aisle quite a bit in her two terms. That would at least get her a FEW R's to vote down any filibuster. Especially considering how many D's will be in the Senate in 2009, I doubt Obama would sweat a filibuster threat too much).

My point was that we can't get sidetracked on that issue because all we'd base our arguments on would be our gut feelings. WE have no evidence. The propriety of her appointment is the issue, and I still haven't heard anything to convince me she'd be a bad choice.

Middle Class Guy said...

"Obama should promise Hillary Clinton, now, that if he wins in November, the vacancy will be hers, making her first on a list of one."

I absolutely agree one hundred percent. He should promise her a seat on the high court. This will set the tone for her graceful pull out for her run for the Presidency, an office she is totally unqualified for.

If he is elected and a vacancy occurs, he nominates a qualified judicial candidate. "Oh, sorry Hill, he/she is way more qualified than you. I am sure something will come up in my administrtation that meets your qualifications. Maybe social director or something like that."

Politicians break promises all the time.

Seven Machos said...

Clint -- It's not going to happen.

Patm said...

Yes, he is calling her fat. It is the cheap, easy swipe of 2008.

Clint Wolbert said...

I'm not arguing that "it will happen." I'm arguing against "this is a horrible idea that would make a mockery of the Supreme Court."

I still don't see what the SPECIFIC problems are that everyone is so up in arms about. Are there any? Or is it just a Good for Hillary = Bad for Country mindset?

Meade said...

PHenry said...
"I really don't see how Hillary is any less qualified to be on the SC than Obama is to be president?"

PHenry nails it.

The truth is: neither one of them is even qualified to hold the positions they now have, much less the presidency. What has Obama accomplished as senator? Hillary's greatest legislative achievement?

Simon said...

Clint Wolbert said...
"It's perfectly fine to have politicians on the Supreme Court. Sandra Day O'Connor was a politician, along with many other former justices."

The point isn't that nominees must have prior judicial experience (Bill Rehnquist turned out to be one of the best Justices in the court's history, and he'd never served a day on the bench before his appointment), or that politicians can't go on to be good judges (one of my heroes, Hugo Black, springs to mind). The concern is that most will not be. Rick Garnett said something at the FedSoc symposium this year that I can't reiterate verbatim, but it was something to the effect of, if you want to be a law professor, you shouldn't spend too much time in practice because you'll develop the habits of mind of a lawyer approaching the law, rather than a scholar approaching the law, and habits can be hard to change. That also goes for politicians, in my view. Politicians aren't used to thinking seriously about law, and may well develop utilitarian result-oriented views on law that they may not be able to brak when they go on to the bench. O'Connor might well be a classic example of what can go wrong when you put a politician on the bench.

Seven Machos said...

Clint -- I am available for the Supreme Court. Would it make a mockery to select me?

Meade said...

Beldar is right. You have to prove that you're a 300 hitter in the minors before you get moved up to the bigs.

Clint Wolbert said...

Seven-- you aren't addressing my question. It's kind of proving my point that people so upset about this possibility don't have a rational reason that they can articulate to support their opinion.

Simon-- we simply have different judicial philosophies. I don't see a problem with a SCOTUS justice behaving as O'Connor did. She strove for pragmatic solutions, and when an issue is as important (and hotly contested) as it generally is when it gets to the Court, O'Connor's approach doesn't strike me as inherently flawed. Sometimes it's GOOD to take extra judicial things into account, at least when we're talking about the highest court in the land.

Trooper York said...

Iapetus, if you keep pulling the trigger there will be a lot of spunk invovled. This isn't the site for that.

Seven Machos said...

Ricpic -- Not sure why you want to pick a fight with me. I was hoping you would put up a spirited defense of yourself and (1) explain that you never said that you would never vote for a black person for president, or (2) explain why you think that is a defensible position.

Instead, I get this. Oh well.

Seven Machos said...

Clint -- Address my question. I have a law degree. I have served in government. Am I qualified to be on the Supreme Court?

You can't say that you don't know. You've already argued your way into a corner on that one above. If I am qualified, why? Who would not be? If I am not qualified, why? How am I different from Clinton?

Clint Wolbert said...

Respectfully, since you have a law degree, you know who has the burden of persuasion in this discussion. I'm simply asking you to state some reasons why you think that Clinton is so unqualified for the Supreme Court, or, alternatively, why it would be such a bad idea politically for Obama to appoint her.

PHenry said...

Sometimes it's GOOD to take extra judicial things into account

so, a judge shouldn't interpret the law, so much as make sure his political desires are furthered?

Thats not 'judicial philosophy'. That is turning the law on its head.

Somehow I don't think this 'taking extra judicial things into account' will look so good when it doesn't happen to work out in the ways you agree with. Judicial activism and creative interpretation of prenumbras can cut both ways.

Seven Machos said...

I already have. I've said that she has a poor temperament. Althouse and Simon teased that out far better than I have.

It would also create a big fight that Obama can't possibly want. Does Obama really want to spend time and political energy nominating a lightning rod like Clinton when any competent junior staffer could come up with a thousand names who would come to the same basic judicial results? No.

It's a bad idea. It's a stupid idea. For all the things Obama is, he is neither bad nor stupid.

Clint Wolbert said...

Interpreting the law means a lot more than reading dusty case books and trying to uncover what a judge in 1932 meant by his long winded opinion. You take the mores of society into account. This is one of the reasons why there is no requirement for Supreme Court justices to have a law degree in the Constitution.

Seven-- I already said I don't think you and I have the capability to discuss her temperment, since we've never, you know, experienced it in any way. So I guess we're unable to come to a resolution.

PHenry said...

You take the mores of society into account.

So why bother with the constitution, or congress, or even democracy? The judges in the end will decide, based upon their idea of the current 'mores of society', what the law is!

Clint Wolbert said...

haha we're clearly not going to get anywhere tonight because I have to go. But "mores of society" was a generalization I banged out while watching the Sox and talking to my roommate. There is definitely room for nuance there.

Enjoy your evenings!

Seven Machos said...

Clint -- Remarkable. So judges shouldn't judge based on the words of the Constitution. It's so long, and even older than 1932. They shouldn't judge based legislative intent. That's just the stupid will of the people and a bunch of similarly ridiculous tripe.

No, judges should judge based solely on the mores of society. I like common law as much as the next guy but, Clint, tell me: if judges should judge based on the mores of society, how do you explain Roe? How do you explain Griswold?

PHenry said...

I'm a bit bleary eyed myself. Good night!

The Pathetic Earthling said...

Of course, that would mean HRC would have to hold the door for Clarence Thomas coming in and out of conference. Heh.

Bill said...

His notion that Hillary Clinton belongs on the Supreme Court is just: Everybody seems to think she's pretty smart.

I'm not convinced that this is absurd, on the face of it. When you think about it, it makes a lot of sense that mid-level judges have a lot of background in the law.

But a Supreme Court Justice? Suppose (to use a person who's dead and known for being smart) Richard Feynman, as he approached 60, started taking a greater and greater interest in government and, ultimately, let it be known that he'd like one of those roomy black robes.

Would a lack of experience rule him out?

reader_iam said...

I'm simply asking you to state some reasons why you think that Clinton is so unqualified for the Supreme Court

OK. That's it. Fine. I'll give you one. I know have more of an actual judicial record to go on with your average district judge in Chester County, Pennsylvania, for example, in order to make that judgment than I do for Hillary Clinton in a judicial role.

This has been truly hilarious, folks.

I don't think you and I have the capability to discuss her temperment, since we've never, you know, experienced it in any way.

Jumpin' judiciary, Clint! The answer is right there, in your words, and in what you've been saying! Before you get to "starters," that'd be the trump card. It doesn't even have to get personal or partisan, for crying out loud.

What the hell?

reader_iam said...

Bill, the short answer is: YES!!! To be fabulous in one area, and even breathtakingly brilliant in not just that area and others, does not necessarily fit one for any specific area.

I would reject Feynman, for SCOTUS (though not for, say, district judge) via the trump card to which I referred in my just previous comment.

Randy (Internet Ronin) said...

Of course, that would mean HRC would have to hold the door for Clarence Thomas coming in and out of conference.

I wasn't going to write a comment about this post, but you deserve applause for that line. Gave me a real chuckle.

reader_iam said...

I'm going to repeat that, edited--as opposed to deleting and reposting--to make sure I'm being crystal clear (bolding indicates edits, clarifications and additions):

Bill, the short answer is: YES!!! To be fabulous in one area, and even breathtakingly brilliant in not just that area but others or even generally, does not necessarily fit one for a specific role in any specific area unrelated to core expertise.

And it sure doesn't provide a necessary OR sufficient track record on which one's fitness for that **"a specific role"** for which one is being considered
.

I would reject Feynman, for SCOTUS (though not for, say, district judge and certain other like roles, even a bit up from that, perhaps) via the trump card to which I referred in my just previous comment.

reader_iam said...

OK.

Now, Clint (assuming you come back after your good night's sleep): Would you like me to get started on a political reason or two?

Simon said...

Clint, as you say, we have a difference in judicial philosophy. It's reasonable to take pragmatic concerns into account where the Constitution so allows, I think we'd agree, but we would likely disagree on where and how often those conditions hold. :) The problem I have with O'Connor's jurisprudence is her willingness (in my own view, at least) to look for pragmatic compromise solutions even when the answer in the Constitution is (again, in my own view, at least) abundantly clear and not susceptible to such balancing. O'Connor also strikes me as having been averse to the sort of rules (as opposed to multifaceted balancing tests) that I think are at the heart of the rule of law and essential to avoiding the preservation of a role for the court in reviewing the application of doctrine to every conceivable set of facts.

Fat Man said...

People who think that Hillbilly would want to be on SCOTUS just don't know anything about her or her hubby.

They want power, wealth, and fame. Bright lights, Big city. Being on SCOTUS is like joining a monastery. It's like asking Perelman to play second violin third chair in an orchestra. Forget about it.

If Obama is the Dem nominee, Hillary will endorse him and work hard to make sure he loses so she can run in 2012.

"Democrats who respect the rule of law and want rights to be taken seriously"

Null set.

Clint Wolbert said...

I wasn't sleeping, just hanging out with my partner :)

Iam, you're conflating two issues. I said earlier that the reason we can't bring up Clinton's judicial temperament is because WE DON'T KNOW IT. That isn't to say that she has a good temperament or a bad temperament. It is only to say that whatever her temperament is, senators are likely to know what it is, and we are certain NOT to know what it is. Because we don't know what her temperament is, it's stupid for us to add that as a variable in our discussion of whether she would be a good Supreme Court justice. We would be swaggering and using our preconceived biases as proof. That doesn't cut it. We're not in a position to discuss her temperament, but the Senate, if she were nominated, would-- due to the close working relationships and one-on-one contact most of the senators have had with Clinton. And this is important because if we're talking about why Clinton would be an unacceptable nominee, we have to have actual reasons to put forth, not just vague assertions about her temperament that no one in our positions could possibly verify.

Simon I agree to an extent with your criticisms of O'Connor. It would certainly make things easier to have a hard and fast rule with many areas of law where O'Connor has had a hand. But my point is that particularly on the Supreme Court, it is LESS necessary to strictly adhere to precedent. It is more desirable (but not necessarily actually desirable) for Supreme Court judges to take into account the effect their rulings will have upon the rest of the judiciary and the nation at large. It's simply a different institution.

Trumpit said...

I scanned the comments and I noticed that not a single soul suggested Ann Althouse for the Supreme Ct. By not doing that you bite the hand that feeds you. I think she'd be great justice! Imagine if she continued to blog while on the court. Brilliant!
I know she'd say yes to the appointment, so I won't ask her.

Jose Chung said...

I nominate Sean Penn.

reader_iam said...

Ah, but if it's a choice between that fate and directing the future of the preeminent symphony and musical organization of the land, which would you choose?

***

That quip offered, please do recall that when this topic came up here yesterday, I did make *a point* of making the point (amidst a more passionate, well, point, true--but that merely underscores my commitment to thought amidst passion) that I'd like to see some actual evidence that a) Obama is truly considering offering this particular consolation prize, b) that H. Clinton has requested or will request it, much less c) both.

Fun, or not, to think that we're all being stirred up as the test audience for a trial balloon? Fancy that ... .

reader_iam said...

Clint: It seems to me that you're doing your share of conflation, and also ignoring.

(I don't think I was conflating, by the way, but rather trying to focus--OK, even "re-focus"--on the lack in a "harder" area, one which has relevance BEFORE the issue of temperament comes in, but is also necessary for determining the latter. That's why, in my judgment, it ought to be dealt with first, on the list of things that are relevant and need to be dealt with.) Where's the judicial-role record, of any kind, on which to make a judgment of fitness for the particular role, in the relevant areas, including temperament?

Clint, I gave you an actual reason. You have not addressed it, but rather have gone back to the more "squishy' area. Why?

Seven Machos said...

I still want to know why anyone thinks Obama would do this thing? Where is the win for him?

Also, I don't think it's a trial balloon. I think it's a bullshit meme created by some pundit somewhere who needs to do a profoundly more thoughtful job at punditry.

reader_iam said...

7M: I perhaps need to discover some cute diacritical to signal double-meaning, double questioning ... and, more generally speaking, layered suggestion/implication. 'Cause I see evidence, all the time, that I could use some work at getting that across more clearly, so to speak.

; )

Kansas City said...

I think Hillary would be a terrible choice because judges should be neutral, not liberal politicians (and not conservative politicians either), but I agree with the point that any smart lawyer could be a fully competent supreme court justice -- it is not rocket science.

Kansas City said...

Fat Man,

You may be wrong about Hillary not wanting to be a supreme court justice, because you accurately state the Clinton's are after "power, wealth and fame." The have wealth and fame, and the ability to continue to accumulate wealth and fame even if she is on the court, and the court would give her power, even to the point of perhaps someday being the swing vote -- more power than anyone other than the president and, on some issues, more than the president. She might well be interested in the job.

Seven Machos said...

Anyway, about Obama being interested in giving the job to her?

....silence....

Seven Machos said...

...Crickets chirping...

reader_iam said...

Well, 7M, I've already said I'd like to see evidence that he actually is interested in doing that, here on this thread and on one yesterday. So I've been assuming you're not talking to me. Which is what I'll continue assuming unless you say otherwise--though it's not my answer that would be the particularly interesting or revealing one, in my opinion, and in context.

TitusTheLookOfLove said...

Don't be not loving repubicans and President Bush-that is not funny.

Funny is loving everything republicans do and everything President Bush does.

Got it. I will make sure I do this from now on. I have got my marching orders.

Thank you.

TitusTheLookOfLove said...

I just feel awful that we now need to say conservative activists justists considering the Californa Supreme Court.

reader_iam said...

If you're gonna march, Titus, I want details. Details! Describe that marching-band uniform: new-fangled, or old school?

In any case, the thing that jumped to ear, regardless of which uniform I pictured you in, is this:

Seventy-six trombones led the big parade,
with a hundred and ten cornets close at hand.
They were followed by rows and rows of the finest virtuos,
the cream of ev'ry famous band.


(uh huh-huh-huh)

reader_iam said...

virtuosos

reader_iam said...

Now that I think about it, dear Titus, if you aren't familiar with ALL the lyrics to that, you ought to be.

(Chuckle.)

Revenant said...

I'm simply asking you to state some reasons why you think that Clinton is so unqualified for the Supreme Court

She has no judicial experience.

Yeah, yeah, I know, Earl Warren didn't have any experience either. Now there's a winning argument -- compare Hillary to the guy who helped screw up the Judicial Branch for the latter half of the 20th century. That'll get Republicans to vote for her.

or, alternatively, why it would be such a bad idea politically for Obama to appoint her.

Well let's see.

(1): The appointment would fail, since no Republicans would support it. Vote for an unqualified candidate the Republican base views as a heinous vindictive bitch? Yeah, that'll happen.

(2): She's old for a nominee.

(3): She doesn't like Obama.

(4): There are easily a dozen Democratic senators with more political juice than Hillary who would actually LIKE the job and aren't going to be pleased if Obama offers it to Hillary in exchange for... what, exactly? Support he doesn't need?

There are more reasons, of course, but those are enough to underline what a monumentally stupid idea it would be to nominate Hillary.

dc universe said...

"Roomy black robes" — is he calling her fat?

Of course not. The black robes are cut roomy for "growing in office" - the laudatory phrase for judges when they swing (further) to the left and become more activist after they are appointed.

Kevin Hayden said...

First: while it's illegal to offer the job to her as any quid pro quo, it's not illegal to dangle a comment that one certainly thinks she'd be good in that role.

Second, every Supreme Court justice has been a lawyer, even though for many years, lawyers gained their practice by serving apprenticeships. That's a good precedent to maintain, and it would rule out Feynman.

Third, even with probable Dem Senate gains in 2008, they won;t have enough to invoke cloture without Republicans on board. And there are several moderate Republicans still: Snowe and Specter for starters.

Fourth, yes, it would create a political uproar, though the only real assumption that could be legitimately made is that she'd consider Roe v. Wade to be settled law. As Stevens is likely to step down during the next President's term, I'd consider it a matter of timing. If he leaves in 2009, does Obama want to risk his honeymoon on such an appt? Likely not. But in 2010 or 2011, he might.

Fifth, the evidence suggests Clinton has performed well as a children's advocate, as an attorney and as an options trader. She has been least effective as a legislator pushing through bills that could be labelled 'leftist' or 'socialist.' So her supposed disqualification for political views fails to take into account that she's politically pretty moderate.

Sixth, a prez, several senators, a governor or two have all served on the Supremes. That precedent exists. LBJ nominated his personal lawyer in Abe Fortas. Successful as a children's rights advocate, he ultimately resigned under pressre for an ethics violation. Still there remains lots of precedence for nominees with extraordinary portfolios and decided political leanings.

Seventh, her age is perfect for the job as she'd likely be able to do it for the next 25 years.

Eighth, the strongest argument against Clinton remains. As she's neither a judge nor a published legal scholar, her chief qualification is she excelled in legal practice. Which usually is not enough.

Finally, I see no advantage to floating the idea. To placate her supporters? Please. Any split in the Dem party is the same one that occurred in the mid-Sixties after the passage of the two CR Acts. Most Clinton supporters will vote Obama. The ones who don't aren't going to let their hatred be bought off by trial balloons.

I think Clinton, like anyone, would love to be appointed and believe the position wields enormous power. But it would require a lot of stars to line up just right, like Stevens lasting till November 2010, to improve the odds of enough Dem Senators to provide cloture. She has both the intellectual heft and temperament. I'm sure she'd love to be out of the constant field of fire where her decisions are weighed as a group thing rather than a Clinton thing.

Sure, the GOP would howl, but other than the rare abortion vote, there's little lasting impact it would have on the body politic.

Simon said...

Trumpit said...
"I scanned the comments and I noticed that not a single soul suggested Ann Althouse for the Supreme Ct. ... I know she'd say yes to the appointment, so I won't ask her."

I've suggested it before, but she's said on several occaisions that she's not interested, so it's futile to press the point.

Kevin Hayden said...
"Second, every Supreme Court justice has been a lawyer, even though for many years, lawyers gained their practice by serving apprenticeships."

That's because the vast, vast majority of what the court does is lawyer's work. Obscured though it may sometimes be by high profile decisions, the court i a court.

shade said...

Feynman would have been fine for the Supreme Court. Give him about six months time to get through law school.

Henry said...

All this talk about Earl Warren suggests that people don't know much about Earl Warren.

Hillary's law career goes thus:

1. Member of the Nixon impeachment inquiry staff (1974)
2. Faculty member at the School of Law at the University of Arkansas, Fayetteville
3. Rose law firm

Earl Warren's law career is just a little more extensive:

1. Private practice (Robinson & Robinson)
2. Deputy city attorney of Oakland
3. Deputy district attorney of Alameda County
4. District attorney of Alameda County (1925-1939)
5. Attorney General of the State of California (1939-1943)

Ann Althouse said...

Trumpit said..."I scanned the comments and I noticed that not a single soul suggested Ann Althouse for the Supreme Ct. By not doing that you bite the hand that feeds you. I think she'd be great justice! Imagine if she continued to blog while on the court. Brilliant!
I know she'd say yes to the appointment, so I won't ask her."

As I've said many times, I lack judicial temperament, much as I'd love to blog the inside of the Supreme Court — which is further indication of my lack of judicial temperament. You can't write those opinions stream-of-consciousness, you know. And they aren't really "your" opinions in the ordinary sense of actually having opinions.

Brian said...

If it is a trial balloon its a stupid one, since Hillary would never consider the offer genuine.

There's too many unknowns even if one or two vacancies appeared on Obama's watch.

"Sorry Hillary, but even if I nominated you, you know the votes just aren't there right now"

"I need you in the Senate fighting for the change we believe in"

Etc, etc.

Hillary knows that a promise from anyone on something as rare as a Supreme Court appointment is worth as much as a promise from Bill Clinton on say, middle class tax cuts.

She's hoping Obama stumbles in his GE campaign between now and the convention, otherwise she's going to be positioning herself for 2012 and picking up the pieces after Obama fails. A true "I told you so" moment, as in "I told you he couldn't get elected."

Revenant said...

Clinton has performed well [...] as an options trader.

That's certainly a, uh, euphemistic way of putting it...

Bill said...

Okay, so you'd rule ouf Feynman, essentially, because of a lack of experience.

Is legal experience, e.g. being a lawyer and a judge, the only experience that would be sufficient?

Let's take another dead guy who was rumored to be smart: Robert Nozick. A philosopher who won a National Book Award for a work of political philosophy (Anarchy, State, and Utopia).

Is Nozick also ruled out by the same trump cards?

If so, if the only people who can interpret the constitution are those who have been steeped in the legal tradition from an early age (to the point of earning a professional degree in it and then practicing in a legal trade), aren't we getting awful close to being inbred (or, at least, hidebound)?

Mind you, I'm not sure inbred or hidebound are bad things in this case. But it does seem like we're closing the door on a lot of people.

memomachine said...

Hmmmm.

@ Clint Wolbert

"It's perfectly fine to have politicians on the Supreme Court. Sandra Day O'Connor was a politician, along with many other former justices."

Ummmmm. Actually that's precisely an argument *against* having a politician on the SCOTUS bench.

Remember "GRUTTER V. BOLLINGER (02-241) 539 U.S. 306 (2003) "?

Quote:
"We take the Law School at its word that it would “like nothing better than to find a race-neutral admissions formula” and will terminate its race-conscious admissions program as soon as practicable. See Brief for Respondents Bollinger et al. 34; Bakke, supra, at 317—318 (opinion of Powell, J.) (presuming good faith of university officials in the absence of a showing to the contrary). It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today. "

So. It's ok to use racial discrimination because it's only been 25 years since racial discrimination against whites started. And what the hell. Maybe in 25 years nobody will need to discriminate against whites.

So good deal! Yeah!

What a crock.

reader_iam said...

e.g. being a lawyer and a judge

I think it would be good to have one of the two in the background, with regard to SCOTUS and a lifetime appointment.

Note that I never said that ONLY a sustained legal career ladder is acceptable, much less exclusively a legal career. What I said is that, with regard to, in particular, SCOTUS, I want something directly relevant, and of some significance, on which to make a judgment.

reader_iam said...

I think it would be good to have one of the two

That is to say, yeah, I want to see one of the two, as a standard for having the information I want to make a judgment. More precisely to the point, I'm uncomfortable with the lack of both. I'm not wild about making leaps of faith with regard to SCOTUS appointments.** Sorry.

---

Also, though I assumed everyone knows this, I do want to point out that it's possible to achieve some degree of record of service as a judge of some type without a law degree.

---

**Luckily for those who disagree, and in any case in the actual event, it doesn't matter what I think or whether I'm comfortable or what I like.