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 12:01 a.m. EST 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.
