Justice Obama

So in his turn writing “Tilting at Windmills” in the latest issue of the Washington Monthly, contributing editor (and esteemed friend) Steven Waldman needs just three sentences to toss out a very interesting idea:

If Hillary Clinton wins, Obama should be her first Supreme Court appointment. It’d be good for her, and very good for progressives.

Would he want it? It’s possible he’d view it as too confining, but it may be the only job a former president can get that won’t seem like a step down.

Jeffrey Toobin actually devoted a long op-ed back in 2010 to Obama’s sterling qualifications to serve on the Supreme Court, with all the temperamental factors that frustrated liberals about his presidency appearing as excellent credentials for the bench. Obama was, of course, a constitutional law professor, and there’s plenty of precedent for former pols being appointed to the High Court (Charles Evans Hughes, Hugo Black, Earl Warren, James Byrnes, and of course former president William Howard Taft, all being twentieth-century precedents). The average age of newly appointed Supreme Court justices is 53; Obama will be 55 upon leaving office.

Like Steve, I have no idea whether the idea would appeal to the president–less because it is “confining” but because, frankly, by 2017 he could be ready for a vacation of a decade or so, before retiring.

But if he is inclined to emulate Taft, how could a President Hillary Clinton possibly turn him down–unless she thought he could not be confirmed.

And here’s the thing that is fascinating about the idea: can you imagine the confirmation fight an Obama SCOTUS appointment would touch off? Presumably most of the people who would have voted for a President Clinton would think (a) she should be able to appoint any minimally qualified Justice she wanted, and (b) it would be a no-brainer to crown Obama’s career with one more stint of service. But the Right would absolutely melt down in ways that would not help the conservative cause.

As it happens, I was working in the Senate when Clarence Thomas was appointed to the Court, and afterwards I could not have imagined there would ever be a confirmation fight as loud and nasty as that one. I mean, seriously, it seemed every single American had a strongly felt opinion on the subject, in no small part because Anita Hill’s testimony struck a huge nerve in drawing attention to workplace sexual harrassment. But that whole scene would be a sunny late-spring picnic compared to an Obama confirmation debate. Assuming Democrats were in control of the Senate at that point, the confirmation would probably succeed. The question is whether the two presidents involved would relish this kind of fight–in Obama’s case, a last chance to stick it to his tormenters. I’d be all for it, if he were willing.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.