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Patriot Games
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http://www.opinionjournal.com/extra/?id=110011001
Justice Clinton?
President Taft went on to the Supreme Court. Maybe Mrs. Clinton will park
her husband there.
BY DOUGLAS W. KMIEC
Sunday, December 16, 2007
Hillary Clinton's commanding lead in the polls has diminished, and with
Oprah Winfrey stumping for Barack Obama, she's called increasingly on the
"star power" of husband Bill. But the ubiquitous presence of the former
president on the campaign prompts a question: What will Hillary do with Bill
if she is elected?
Of course, one might say Hillary has been wondering what to do with Bill for
quite some time. But Mr. Clinton's prominent role in his wife's
campaign--whether going head to head with Oprah for airtime or defending
Hillary from "swift-boat-like attacks" from rival Democrats--has renewed the
question: What exactly will he be doing on Jan. 21, 2009?
Several job ideas have already been floated. He might be appointed by Gov.
Eliot Spitzer of New York to serve the remainder of Mrs. Clinton's U.S.
Senate term. While there is precedent for former presidents--even a former
impeached president (Andrew Johnson) returning to the national legislative
body--few close to former President Clinton think being one of 100 would
satisfy his boundless persona.
In any event, Gov. Spitzer is already under some considerable pressure to
appoint a minority to Sen. Clinton's seat, and even though Mr. Clinton was
described by writer Toni Morrison as "the first black president," that won't
cut it with the practitioners of identity politics.
Mr. Clinton has also been contemplated for something dubbed "ambassador to
the world." But the federal government's anti-nepotism law would likely
preclude her naming Bill to her cabinet.
The issue of Mr. Clinton's potential role has a serious side for Democrats
already concerned about her persistently high negatives. The notion that Mr.
Clinton will be a "shadow president," effectively circumventing the
constitutional limitations on presidential service, presents a campaign
opportunity for the GOP.
So if neither a Senate nor executive position will do, what does work? While
it's probably not something the Hillary campaign would want us to
contemplate, we should remember that there are three branches of government,
and that it is widely anticipated that there will be one or more vacancies
on the Supreme Court during the next presidential term.
Before dismissing the possibility of Justice William Jefferson Clinton, it
is worth recalling a bit of history--most notably, the history of another
former president who landed on the Supreme Court, William Howard Taft. Taft
would come to love his fellow justices and the court so much that he later
described them as his ideals "that typify on earth what we shall meet
hereafter in heaven under a just God."
That seems a little strong for Bill Clinton, but Taft and Mr. Clinton are
not without their similarities. For example, both started out in life as law
professors--Taft at the University of Cincinnati and Mr. Clinton at the
University of Arkansas. Mr. Clinton also shares with Taft a warm, gregarious
personality that is well received at home and abroad.
There are also differences. Taft never had his law license suspended (Mr.
Clinton's suspension for "serious misconduct" formally ended in 2006), and
Taft had extensive judicial service on lower courts before the presidency.
Indeed, Taft always preferred the judiciary over the executive office,
assessing his own presidential term as "a very humdrum, uninteresting
administration" that failed to "attract the attention or enthusiasm of
anybody." President Clinton's service, by no one's calculus, was
uninteresting.
The attractiveness of the high bench to Bill Clinton might well increase
once he familiarized himself with the details. The former president could
not help but admire how Taft personally mapped out a Machiavellian strategy
for appointment.
Among other things, Taft as president deliberately chose appointees of
advanced age. This was especially true of Edward Douglass White. Taft named
him chief justice at the age of 65, passing over Charles Evans Hughes, a far
more logical choice and a vibrant 48.
It's too much of a stretch to see either of Mr. Clinton's appointments in
the same light, though when Hillary would be in the oval office, both
Stephen Breyer and Ruth Bader Ginsburg will be in their 70s and John Paul
Stevens pushing 90. It would be untrue and insulting to the integrity of all
three to think of them as just biding their time, but back in 1920, it was
reasonably clear that Justice White was, in the words of the historians,
"keeping the seat warm for Taft."
While Taft did manage to angle the center seat, mercifully that would not
appear to be in the cards for Mr. Clinton. Notwithstanding a curious and
worrisome summer seizure, Chief Justice John Roberts seems young, vigorous
and at the start of a long tenure. So why would Bill Clinton take the lesser
job of associate justice?
Well, instead of being one of a 100 he would be one of nine. And like the
late Associate Justice William Brennan, he would have the personality to
influence outcomes on the court--especially given its currently teetering
5-to-4 composition--disproportionately to his single vote. Moreover, his
influence on the bench could extend well beyond "the marble palace." Taft,
for instance, reshaped the entire federal judiciary for decades to follow.
Would anyone doubt a Justice Clinton's ability and inclination to remake a
federal bench in a manner calculated to erase its current edge of Reagan and
Bush appointees? Or that his influence would be limited to chatting up
whomever Hillary is thinking of naming as attorney general?
In short, a seat on the Supreme Court solves Sen. Clinton's dilemma of what
to do with her husband if she becomes president. It keeps Bill formally out
of the White House and structurally out of the executive branch. And lest
that dampen Mr. Clinton's interest, he might be reassured by Taft's practice
of continuing to advise the president on the substance of legislation and to
lobby to sustain various presidential vetoes.
True, some of this activity would be seen as well beyond the precepts of
modern judicial ethics, but even if Justice Clinton stayed solely within his
judicial role, his impact need hardly be minimal. During Taft's service, the
court called the shots in government getting its own building and for the
first time winning virtually complete control of its own docket.
How much more opportunity would be knocking for a Justice Clinton with an
Iraq-induced, Democrat-controlled Congress? There's no need to take this
comparison further at this point. Former President Clinton will no doubt
guffaw at the possibility of judicial service, but then, hasn't he already
stated, "I will serve in whatever capacity she deems most appropriate"?
William Howard Taft's biographer, Jeffrey B. Morris, writes that no Supreme
Court justice "has proven as audacious in conceiving his role, for Taft had
treated his job as an American Lord Chancellor--managing a system, framing
legislation and putting it through, selecting judges, as well as presiding
over a court and deciding cases." No justice that is until perhaps Justice
William Jefferson Clinton? Only time will tell.
Mr. Kmiec, assistant attorney general and head of the Office of Legal
Counsel to Presidents Ronald Reagan and George H.W. Bush, is a professor of
constitutional law at Pepperdine University and a volunteer legal adviser to
Gov. Mitt Romney.
Justice Clinton?
President Taft went on to the Supreme Court. Maybe Mrs. Clinton will park
her husband there.
BY DOUGLAS W. KMIEC
Sunday, December 16, 2007
Hillary Clinton's commanding lead in the polls has diminished, and with
Oprah Winfrey stumping for Barack Obama, she's called increasingly on the
"star power" of husband Bill. But the ubiquitous presence of the former
president on the campaign prompts a question: What will Hillary do with Bill
if she is elected?
Of course, one might say Hillary has been wondering what to do with Bill for
quite some time. But Mr. Clinton's prominent role in his wife's
campaign--whether going head to head with Oprah for airtime or defending
Hillary from "swift-boat-like attacks" from rival Democrats--has renewed the
question: What exactly will he be doing on Jan. 21, 2009?
Several job ideas have already been floated. He might be appointed by Gov.
Eliot Spitzer of New York to serve the remainder of Mrs. Clinton's U.S.
Senate term. While there is precedent for former presidents--even a former
impeached president (Andrew Johnson) returning to the national legislative
body--few close to former President Clinton think being one of 100 would
satisfy his boundless persona.
In any event, Gov. Spitzer is already under some considerable pressure to
appoint a minority to Sen. Clinton's seat, and even though Mr. Clinton was
described by writer Toni Morrison as "the first black president," that won't
cut it with the practitioners of identity politics.
Mr. Clinton has also been contemplated for something dubbed "ambassador to
the world." But the federal government's anti-nepotism law would likely
preclude her naming Bill to her cabinet.
The issue of Mr. Clinton's potential role has a serious side for Democrats
already concerned about her persistently high negatives. The notion that Mr.
Clinton will be a "shadow president," effectively circumventing the
constitutional limitations on presidential service, presents a campaign
opportunity for the GOP.
So if neither a Senate nor executive position will do, what does work? While
it's probably not something the Hillary campaign would want us to
contemplate, we should remember that there are three branches of government,
and that it is widely anticipated that there will be one or more vacancies
on the Supreme Court during the next presidential term.
Before dismissing the possibility of Justice William Jefferson Clinton, it
is worth recalling a bit of history--most notably, the history of another
former president who landed on the Supreme Court, William Howard Taft. Taft
would come to love his fellow justices and the court so much that he later
described them as his ideals "that typify on earth what we shall meet
hereafter in heaven under a just God."
That seems a little strong for Bill Clinton, but Taft and Mr. Clinton are
not without their similarities. For example, both started out in life as law
professors--Taft at the University of Cincinnati and Mr. Clinton at the
University of Arkansas. Mr. Clinton also shares with Taft a warm, gregarious
personality that is well received at home and abroad.
There are also differences. Taft never had his law license suspended (Mr.
Clinton's suspension for "serious misconduct" formally ended in 2006), and
Taft had extensive judicial service on lower courts before the presidency.
Indeed, Taft always preferred the judiciary over the executive office,
assessing his own presidential term as "a very humdrum, uninteresting
administration" that failed to "attract the attention or enthusiasm of
anybody." President Clinton's service, by no one's calculus, was
uninteresting.
The attractiveness of the high bench to Bill Clinton might well increase
once he familiarized himself with the details. The former president could
not help but admire how Taft personally mapped out a Machiavellian strategy
for appointment.
Among other things, Taft as president deliberately chose appointees of
advanced age. This was especially true of Edward Douglass White. Taft named
him chief justice at the age of 65, passing over Charles Evans Hughes, a far
more logical choice and a vibrant 48.
It's too much of a stretch to see either of Mr. Clinton's appointments in
the same light, though when Hillary would be in the oval office, both
Stephen Breyer and Ruth Bader Ginsburg will be in their 70s and John Paul
Stevens pushing 90. It would be untrue and insulting to the integrity of all
three to think of them as just biding their time, but back in 1920, it was
reasonably clear that Justice White was, in the words of the historians,
"keeping the seat warm for Taft."
While Taft did manage to angle the center seat, mercifully that would not
appear to be in the cards for Mr. Clinton. Notwithstanding a curious and
worrisome summer seizure, Chief Justice John Roberts seems young, vigorous
and at the start of a long tenure. So why would Bill Clinton take the lesser
job of associate justice?
Well, instead of being one of a 100 he would be one of nine. And like the
late Associate Justice William Brennan, he would have the personality to
influence outcomes on the court--especially given its currently teetering
5-to-4 composition--disproportionately to his single vote. Moreover, his
influence on the bench could extend well beyond "the marble palace." Taft,
for instance, reshaped the entire federal judiciary for decades to follow.
Would anyone doubt a Justice Clinton's ability and inclination to remake a
federal bench in a manner calculated to erase its current edge of Reagan and
Bush appointees? Or that his influence would be limited to chatting up
whomever Hillary is thinking of naming as attorney general?
In short, a seat on the Supreme Court solves Sen. Clinton's dilemma of what
to do with her husband if she becomes president. It keeps Bill formally out
of the White House and structurally out of the executive branch. And lest
that dampen Mr. Clinton's interest, he might be reassured by Taft's practice
of continuing to advise the president on the substance of legislation and to
lobby to sustain various presidential vetoes.
True, some of this activity would be seen as well beyond the precepts of
modern judicial ethics, but even if Justice Clinton stayed solely within his
judicial role, his impact need hardly be minimal. During Taft's service, the
court called the shots in government getting its own building and for the
first time winning virtually complete control of its own docket.
How much more opportunity would be knocking for a Justice Clinton with an
Iraq-induced, Democrat-controlled Congress? There's no need to take this
comparison further at this point. Former President Clinton will no doubt
guffaw at the possibility of judicial service, but then, hasn't he already
stated, "I will serve in whatever capacity she deems most appropriate"?
William Howard Taft's biographer, Jeffrey B. Morris, writes that no Supreme
Court justice "has proven as audacious in conceiving his role, for Taft had
treated his job as an American Lord Chancellor--managing a system, framing
legislation and putting it through, selecting judges, as well as presiding
over a court and deciding cases." No justice that is until perhaps Justice
William Jefferson Clinton? Only time will tell.
Mr. Kmiec, assistant attorney general and head of the Office of Legal
Counsel to Presidents Ronald Reagan and George H.W. Bush, is a professor of
constitutional law at Pepperdine University and a volunteer legal adviser to
Gov. Mitt Romney.