Minority Leader McCain

Slate's blog on legal issues.
May 21 2008 2:36 PM

Minority Leader McCain

There's no question but that a President Obama would have to find an attractive position for Mrs. Clinton other than the vice presidency. The problem with the vice presidency is, of course, Bill. Absent a Lincolnian desire for a team of rivals, the former president's presence hanging about the West Wing vice-presidential office would greatly complicate executive decision-making.

So some now suggest the Supreme Court. Bracketing the effect on the court of Mrs. Clinton's appointment, the problem with the judicial post is that it doesn't solve Sen. Obama's immediate problem—allowing Mrs. Clinton the opportunity to exit the electoral stage with a prize in hand that reaffirms the achievement of women. It is unseemly to use court appointments quite this brazenly, and the glass ceiling has already shattered upon the O'Connor and Ginsburg heads. Finally, it is not self-evident why Mrs. Clinton would trade life in the highly visible, political lane for the cloister. It would be more likely to suppose that Mrs. Clinton would desire to be Senate majority leader or the secretary of health and human services in order to single-mindedly pursue her health care reform.

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That said, a Clinton on the court has been speculated about before. Back when Mrs. Clinton was the likely nominee, I wrote a column for the Wall Street Journal suggesting that were Mrs. Clinton to become president, she herself would have had to extricate her husband from the executive branch and a plausible place to put him might be on the Supreme Court bench.

William Howard Taft found the court far more attractive than the presidency itself.   Taft was able to shape not just judicial doctrine, but by virtue of his network of friends as the former chief executive, he had considerable influence over the appointments to not only the Supreme Court but the lower federal courts. Mrs. Clinton would like that, too.

James Andrew Miller , who writes about the possibility of nominating Mrs. Clinton to the High Court in today's Washington Post , suggests that Mrs. Clinton's policy and political perspectives would recommend her strongly to a President Obama. Perhaps. By virtue of Sandra Day O'Connor's retirement and her outspoken advocacy for a female replacement, whether it's McCain or Obama who is the next president, a female nominee for the court is highly likely. While the apointment would not be a "first," a Justice Hillary Clinton would not be without contemporary significance and effect. Her appointment from elective office, in itself, diversifies the bench in ways that others recommend, even as Eric Posner  thoughtfully questions whether it is right to see the court as a third policy apparatus, rather than as a body doing narrowly focused legal work.

Mrs. Clinton's far more legally gregarious perspective would be a counterpoint to the Chief Justice's minimalism, and she would likely galvanize the overly hypothetical Breyer/Ginsburg/Souter wing.  All pretty exciting  for her. All equally frightening for Justices Alito, Thomas, and Scalia. Dizzying for Justice Kennedy.

The GOP, one suspects, will discover newfound respect for the judicial filibuster, which would complicate Mrs. Clinton's confirmation, as Dahlia suggests. But then, will the GOP have 40 seats in the Senate? And who knows what Minority Leader McCain, whose term runs through 2010, might negotiate as part of a reconstituted gang of 14.

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