Think it over

Hillary Clinton and the Supremes

Compared to the 2004 election, Supreme Court appointments were not so much of a noteworthy issue this year. Of course, after Bush won in 2004, he appointed John Roberts as Chief Justice and Samuel Alito as an Associate Justice, leaving a hyper-conservative legacy for decades. Thus the swing vote on the Court switched from Sandra Day O’Connor to the more conservative Anthony Kennedy.

Still, had McCain won the election, there could have been dreadful consequences for the Court. Three of the so-called liberals or moderates on the Court want to retire (John Paul Stevens, Ruth Bader Ginsberg and David Souter). McCain, according to his campaign promise, would have appointed replacements similar in their radical thinking to Antonin Scalia, Clarence Thomas, Roberts and Alito. These guys, despite claiming to adhere strictly to the Constitution, are judicial activists certainly as much as the former liberal justices they disparage.

Thankfully, Barack Obama will get to appoint the people to replace Stevens, Ginsberg and Souter. He will have a dilemma considerably different than that faced by Bush and Cheney. The Republicans’ quandary was to find someone who passed all their litmus tests and who also could be passed off as qualified to be elevated to the Supreme Court. It wasn’t always easy (remember Harriet Miers?).

Obama faces a totally opposite challenge, that of choosing from a veritable cornucopia of extraordinary candidates—judges, law professors, attorneys general and many politicians who also are legal scholars—who are not locked into a rigid ideology. I’m sure every advisor and wannabe advisor to Obama will have a suggestion. His choice, then, won’t make everyone happy.

So my suggestion is Hillary Clinton. No, she has never sat on a judicial bench, but that’s not a prerequisite for the Supreme Court. Neither had Earl Warren or William Rehnquist. One of my favorites, William O. Douglas, only had experience on the Securities and Exchange Commission.

Hillary graduated from Yale Law School and was listed as one of the hundred most influential lawyers in America before she was 30. She’s been a U.S. Senator now for eight years. Many Supreme Court observers credit the conservative O’Conner’s pragmatism and independence to her experience in the Arizona legislature.

No one doubts Hillary’s tenacity or mental capacity. In fact, her detail-oriented intellect is perfect for the intricacies of the thorny legal questions that come before the Court. She would breeze through the Senate confirmation process and be ready for the job from day one.

The main drawback is her age. Bush appointed men in their forties and fifties, who could be on the bench for at least three decades. Obama will want to counter with young justices as well. Hillary is 61, but she appears to be in great shape.

Hillary is most charming and persuasive in small groups, a talent that could bring Kennedy around on a lot of issues. What’s more, she could go toe to toe with Scalia and give him nightmares. That would be worth the appointment just by itself.

The last time a U.S. Senator was appointed to the Supreme Court was in 1945, when Truman selected a liberal Republican named Harold Burton. I always wondered why Lyndon Johnson didn’t name Sen. Wayne Morse of Oregon to the Court. Morse, perhaps the most astute constitutional scholar of his era, was a thorn in LBJ’s side over the Vietnam War, though otherwise they were on the same page. LBJ could have muted Morse’s constant criticism of the war by taking him out of the Senate and putting him on the Court. Instead he chose Abe Fortas.

I’ve always thought Morse would have made an excellent justice, but Hillary will be even better.