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Bench Memos

NRO’s home for judicial news and analysis.

Re: Justice Bill Clinton?



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Jonathan Adler calls it a “disquieting possibility,” which is an understatement.  I’m not sure why Douglas Kmiec offered the speculation that Hillary Clinton might appoint her husband to the Supreme Court.  But even less clear is why Bill Clinton is in any way to be compared to William Howard Taft when it comes to a Supreme Court appointment.  Aside from the fact that Taft was president before he was chief justice, Kmiec musters only two similarities between the two men–a “warm, gregarious personality,” and the fact that both were law professors at some point in their careers.  Kmiec mildly notes that “[t]here are also differences.”  Yeah, you betcha.

Here’s the most barebones summary of Taft’s résumé before he began his final career as chief justice in 1921:

Assistant prosecuting attorney, Hamilton County, Ohio, 1881-1883
Collector of internal revenue, City of Cincinnati, Ohio, 1882
Private practice, Cincinnati, Ohio, 1883-1887
Assistant county Solicitor, Hamilton County, Ohio, 1885-1887
Judge, Superior Court of Ohio, Cincinnati, Ohio, 1887-1890
Solicitor General of the United States, 1890-1892

Judge, U.S. Court of Appeals for the Sixth Circuit, 1892-1900

Professor and dean, University of Cincinnati, Cincinnati, Ohio, 1896-1900
President, U.S. Philippine Commission, 1900-1901
Civil Governor, Philippine Islands, 1901-1904
U.S. Secretary of War, 1904-1908
President of the United States, 1909-1913
Kent professor of law, Yale University, 1913-1921

And of Bill Clinton we can say what?

Assistant professor of law, University of Arkansas, 1973-76

Attorney general of Arkansas, 1977-79

Governor of Arkansas, 1979-81, 1983-1993

President of the United States, 1993-2001; impeached 1998, acquitted 1999

Suspended from the practice of law, 2001-06

Further comparison would only highlight even more distance between Taft’s and Clinton’s qualifications–such as Taft’s impressive record as a constitutional scholar before his chief justiceship, contrasted with Clinton’s  . . . nonexistent one.

Then one might turn to the constitutional dimensions of the Clinton presidency.  Bill Clinton’s administration asserted more outlandish constitutional claims than that of any president in living memory, including Richard Nixon.  Clinton is the president who lost, in a unanimous decision of the Supreme Court, a claim that the president is personally immune (in all but the rarest cases) from all civil damages litigation while he serves in office.  He is the president who advanced–and lost, in the D.C. Circuit Court–the argument that White House attorneys “may refuse, on the basis of a government attorney-client privilege, to answer questions about possible criminal conduct” by the president.  He is the president whose administration invented a “protective function privilege,” allegedly grounded in the Constitution, intended to prevent Secret Service agents from testifying to what they might know of a president’s criminal conduct–also a claim rejected by the D.C. Circuit.  And Bill Clinton is the president who illegally maintained Bill Lann Lee in the office of assistant attorney general for civil rights, notwithstanding both the Constitution and the Vacancies Act.

Take it from someone who has taught “con law” for over 20 years: doing it for just three years is hardly sufficient preparation for service on the Supreme Court of the United States.  In the thirty years that have passed since he taught in a law school, what can we say of Clinton’s relationship to the law?  Not much that is favorable to him.  Unlike William Howard Taft, Bill Clinton’s interest in the Constitution and laws of the United States has always run in a single track–how he can use them to advance his self-aggrandizement and achieve his narrow political aims. 

Clinton is less qualified for the Supreme Court than was Harriet Miers, and his nomination would be far more controversial than hers was.  This kind of firestorm Hillary would not need.  But maybe that’s just what Douglas Kmiec had in mind with this mischievous suggestion!



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