Bench Memos

Justice Clinton

What would Hillary Clinton do with Bill if she were to occupy the White House?  Doug Kmiec suggests a disquieting possibility: Nominating him to the Supreme Court.

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. . . .

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.

Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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