Nominating Clinton to the Supreme Court Would Be a Terrible Idea
Ezra Klein questions the conventional wisdom that the president should avoid a contentious nominee to replace Justice Stevens, who will be stepping down from the Supreme Court this summer. Given the politics of the coming midterm elections, the confirmation battle is likely to be nasty even if the nominee is relatively benign or even considerably more conservative than Justice Stevens himself. Maybe a more aggressively liberal nominee would fare just as well in the confirmation struggle while having an energizing effect for Democrats in the midterms. Maybe.
Ezra casually tosses out the name Clinton as a desirable nominee with experience in legislative politics and statecraft—experience that breaks the mold of the career legal technicians on the Court today. Clinton, as in Hillary.
I can’t even really begin to enumerate the ways in which this would be a terrible idea. But suffice it to say this: While the Court is not impervious to the sway of politics, it should aspire to be and appear to be above the naked political preferences of its members. And its members should have and appear to have unquestionable integrity.
The appearance of integrity on the Court is crucial to its constitutional role and to the maintenance of some semblance of rational order in the legal system. I do not assume that Secretary Clinton lacks integrity. But I do not think it possible that a confirmation hearing that revisited Whitewater and the rest could conceivably end beneficially for the Court, the president, or the nominee.
We need not achieve consensus in the eventual nominee’s judicial philosophy, but we absolutely do need consensus that that the nominee is of the highest integrity. However unfair it may be, Hillary Clinton will not ever achieve that consensus. Even her marriage to the former president, famously disbarred from the practice of law, taints her public image more than we can or should overlook in a Supreme Court nominee. Caesar’s wife must be above suspicion, as they say.
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It is unfortunate that Hillary’s integrity is in question on trumped up charges. As rabid as the teabaggers are today, at least their distasteful hatred of President Obama is transparent. Why the wingnuts so fiercely hated the Clintons I never could figure out.
I agree with you that Hillary would be a bad pick because of all that history, and for that I feel bad.
Indeed, and I hope that Obama picks someone who really isn’t part of any game other than legal theory. I think it would be totally palatable to nominate a thoughtful scholar of any background. I have to say, though, that the lack of a protestant right now is probably a political problem; surely Obama can find a qualified White Anglo Saxon Protestant. . . or are they no longer competitive? I joke, but I do think there is an issue with the lack of Protestants.
Michael Dorf had a good post recently that analyzed the religiousness of the current court. Protestants had a good 200 year run dominating the court. What happened? Was it because the Repubs thought catholics would be a reliable anti-abortion vote?
I’m up for an atheist. Someone who won’t get confused about the text that governs the country. I like Dorf as a candidate, although I have not seen him write about his religious views. I like Jack Balkin too.
We’ll not have an atheist, so that’s idle contemplation. We also won’t have a homosexual, or a Muslim, or a homosexual Muslim; that leaves almost everyone, so I trust Obama will be able to find someone.
Why should we not have an atheist if we should have a protestant? Atheists, like muslims and gays, make up substantial portions of the population. If religion is to be taken into account, why not not include all religions? Not that gay is a religion, but diversity means including representing everyone. Speaking as an old white dude, I think we have been represented enough. I’m willing to give others a chance.
We might already have an atheist, or even a homosexual. How would we know? It seems worthwhile to point out that what we’re really talking about is Senate confirmation of openly gay or atheist (or whatever) judges. Were it not for the filibuster, I’d not be the least surprised to see such a person confirmed. And I don’t think it’s impossible even with the filibuster. The Supreme Court has often been out in front of other institutions in breaking barriers.
Good points Jim, thanks!