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Bench Memos

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Go Ahead, Make Our Day



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James Andrew Miller, a former aide to Senator Howard Baker, writes today in the Washington Post that Barack Obama could “foster party unity” and best employ the talents of Hillary Clinton not by making her his running mate, but by publicly promising her the first Supreme Court seat that comes open while he is president.  The thought comes unbidden to mind that Miller, presumably a Republican, is making mischief with this suggestion.  But he seems to mean it seriously as an idea that is good for the Democrats.  On the contrary, this would be one of the biggest gifts that Obama could give John McCain and the Republicans.

Miller writes: “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.”  This might be true; it strikes me as plausible but not certain.  But what is certain is that such a public announcement on Obama’s part would work wonders in energizing the base of the Republican Party behind John McCain.  Imagine that McCain gave a speech a week on the subject of the judiciary and the Constitution, each three times as good as the speech he gave earlier this month–indeed, each better than the one before.  That would have roughly the effect of a “Clinton for SCOTUS” promise made by Obama.  Offhand references on a regular basis to a “bargain to sell out the Constitution for votes” would be all McCain would have to make.

Perhaps anticipating an objection like “won’t she just be a left-wing Harriet Miers?” Miller writes:

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.

Presumably she could study up, under the tutelage of former “distinguished lecturer in constitutional law” Barack Obama.  There are, of course, multiple examples of politicians without judicial experience becoming successful Supreme Court justices–John Marshall and Earl Warren being the most obvious.

But Miller misses the most obvious blunder such a move would commit.  Promising the Democratic Party that he would appoint Hillary Clinton to the Supreme Court would put Barack Obama on record as committed to the proposition that the Court is just another political institution like any other.  Its vacancies would be viewed as political chips, to be wagered in a presidential campaign without regard to legal or constitutional categories of thought.  Obama would be marked as profoundly unserious about one of a president’s weightiest responsibilities.  And it’s not simply the qualifications of Clinton that would be the issue; a Clinton nomination in the ordinary course of a vacancy arising during an Obama administration would be far less objectionable (though her confirmation would not at any time be the cakewalk Miller predicts).  It would be the instrumentalization of a Supreme Court vacancy as a tactic in a political campaign that would, rightly, strike countless voters in both parties as appalling.

It would be a field day for McCain and the GOP.  Bring it on.



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