The Next Supreme Court Justice?

By Tom Goldstein
on Dec 21, 2007 at 3:22 pm

The following column of mine ran in the Daily Journal papers on Thursday.

Pepperdine Law professor (and Mitt Romney adviser) Doug Kmiec predicts in a recent Wall Street Journal op-ed (“Justice Clinton?” Dec. 15, 2007, available here) that, if elected, Hillary Clinton may appoint husband Bill to the Supreme Court. It’s a provocative notion – one spouse appointing another to the high court. But while Kmiec is among our most insightful legal thinkers, this particular idea has zero chance of coming true.

Kmiec begins from a solid premise: The next president is likely to make several Supreme Court appointments. Justice John Paul Stevens is already 87, making it actuarially unlikely that he could serve until the next election in 2012. Justice David Souter is two decades younger, but of all the justices, he is reported to be the most enthusiastic about leaving, having never viewed his seat as a lifetime commitment. Justice Ruth Bader Ginsburg is 74 and appears to be in great health, but she seems likely to retire under a Democratic administration, so as not to risk a conservative successor.

So, would a President Hillary Clinton turn to Bill to fill one of those seats? Kmiec claims to think she might, in order to “solve [her] dilemma of what to do with her husband.” And he sees two parallels with another former president who sat on the court – William Howard Taft: Both were law professors and share a warm, gregarious personality.”

Kmiec’s palpable disdain for Bill Clinton – and perhaps the desire to stir up the conservative legal establishment – has gotten the best of him here. In the eyes of most of the country, Hillary Clinton would not need to hide Bill out if the way – he is more popular than she is. It is also hard to imagine a job for which he could be less well-suited – cloistered away in a marble palace, when his strengths lie in personal human contact.

Although he was once (briefly) a law professor, Bill Clinton’s time at the University of Arkansas School of Law in Fayetteville was just a stepping stone to politics – he needed a job on returning from Yale Law School. Within a year, he ran for Congress; he lost, but was soon elected attorney general at age 30.

By contrast, Taft’s life’s ambition was to be chief justice of the United States, and he was well-trained for the position. Before ever becoming president, he had been (in succession) a prosecutor, state court judge, solicitor general of the United States, federal appellate judge, and chief judge. He had also accepted appointments from President William McKinley to posts in the Philippines in order to enhance his chances of a Supreme Court appointment.

Theodore Roosevelt actually offered Taft a seat on the court in 1903, but he turned it down because he felt obliged to remain governor general of the Philippines. When Roosevelt later named him Secretary of War, Taft emphasized that he wanted to be chief justice instead – but the position was occupied by Melville Fuller, who would serve until 1910. After serving as president (appointing an extraordinary six justices in only four years), Taft became a law professor at Yale and president of the American Bar Association. He wrote significant works, including a series on American legal philosophy.

Taft finally got his coveted seat as chief justice in 1921. He would later famously say, “I don’t remember that I ever was president.”

Here is what the next president – Democrat or Republican – is actually overwhelmingly likely to do. First, appoint a woman. The gender imbalance on the Supreme Court is ridiculous. How can it be that in the 21st century, we regressed from two women on the court to only one?

Second, appoint a Hispanic. As with gender, symbolism matters greatly in racial politics. Thurgood Marshall and Clarence Thomas were both appointed in part because of their race, as signals to African-Americans of their full participation and equal standing in the nation and its law. The next president will almost certainly seize the opportunity to name a Hispanic justice in order to enhance the party’s standing with that community.

Third, name someone who is relatively young. Recent Republican appointments have put justices on the bench who are likely to serve for decades: Chief Justice John G. Roberts is still only 52, and Justice Samuel Alito is 57.

At age 61, Bill Clinton is many things, but he is not a young Hispanic woman. Democrats have not one but two candidates who meet all of those three criteria. First, Judge Sonia Sotomayor currently sits on the U.S. Court of Appeals for the 2nd Circuit, a job she took after having been appointed by the first President Bush to a district court judgeship. The second potential candidate, Judge Kim McLane Wardlaw of the 9th Circuit, has much more extensive political experience and is closer to the Clintons – she served as Hillary Clinton’s scheduler in California, and her husband was the chair of Bill Clinton’s campaign in the state. Both women are almost universally respected as judges and would be easily confirmed.

What about later seats? I expect a second woman will be appointed to bring the court more into gender balance, particularly if Hillary Clinton wins the presidency. For that seat, she could turn to three candidates regarded as genuine intellectual heavyweights – Judge Diane Wood of the 7th Circuit, Harvard Law School Dean Elena Kagan, and former Stanford Law School Dean Kathleen Sullivan. If Barack Obama prevails instead, it would not be surprising to see a second African-American named to the court, perhaps Georgia Supreme Court Justice Leah Ward Sears, or, if the seat opens up after his term ends in 2011, Massachusetts Gov. Deval Patrick.

A Republican president would face a much greater dilemma than a Democrat for two reasons. First, the Senate is likely to be controlled by Democrats for quite some time, which will virtually require a moderate nominee in order to obtain confirmation. Second, movement conservatives will see the appointment – likely of the successor to Justice Stevens, who is the leader of the left on the court – as a defining moment in the nation’s judicial history, because it will present the opportunity to create the first working conservative majority in the modern era.

Thus, we finally arrive, I think, at Kmiec’s goal in penning his Wall Street Journal piece. In an election year in which Republicans have had trouble motivating voters, the future of the Supreme Court is one of only a few effective rallying cries. Kmiec’s trifecta – Hillary Clinton, Bill Clinton and the Supreme Court all wrapped into one – is the ultimate in red meat for red states. It is just not something that deserves to be taken remotely seriously.