Predicting Judicial Greatness in A Theoretical Justice Barack Obama

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. On Twitter, to his frequent regret, at @burtlikko. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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34 Responses

  1. Francis says:

    I also think that the Republican Party leadership would see the appointment as a direct slap. No matter how many snarky jokes I make about Republicans, the party will likely hold about 1/2 the Senate, 1/2 the House and a significant percentage of Governorships for the foreseeable future. Escalating partisanship is not healthy.

    for gods’ sake if the next Sup Ct nominee is to be some raging liberal with no judicial experience, at least appoint Erwin Chemerinsky.Report

    • Morat20 in reply to Francis says:

      Well, while it’s rather catty — part of me thinks the GOP could use a good metaphorical slapping.

      In the age old “cure for hysteria” since. What’s it going to do, make them worse? These were the guys who had decided “total obstructionism” before Obama even took office.

      More pragmatically, I rather like the idea of appointing a justice with more elected experience. A former Senator especially, would likely have interesting and useful insights into cases wherein the Justices wrestle with the “intent” of Congress.

      I seriously doubt Obama would want the job, however.Report

  2. Christopher Carr says:

    Here’s a theory:

    Trump wins most to all caucuses but not the support of the party brass. They use some procedural nonsense to block his nomination at Team Red’s convention and give it to Cruz or Rubio or JEB or Paul Ryan or someone.

    Hilary/Bernie nominates Trump to be her VP and wins 80% of the popular vote with the lowest voter turnout in history.Report

    • Marchmaine in reply to Christopher Carr says:

      Heh, well a Hillary/Trump combination would pretty much confirm all the conspiracy rhetoric, no? I expect it would alienate his supporters right good. That one would be a huge net negative.

      Bernie/Trump – the shoot-the-moon duopoly? Divided portfolios (though, I’ve no idea how you might split areas of focus with these two). Why not?

      Seems it would depend on who they were up against… could probably beat Cruz, maybe Rubio, but would certainly invite a Rump Republican challenger… maybe a Bloomberg/Kasich sort of thingy.

      would be awesome to watch.Report

      • Stillwater in reply to Marchmaine says:

        would be awesome to watch.

        It’d be icing since it’s already awesome to watch. This whole primary cycle has been nuts. The Dem primary started with liberals hoping (HOPING!) Bernie could generate enough support to pull Hillary a bit to the left on her carpet-walk to the nom. Now there’s two points separating them nationally. The GOP primary started with Jeb! rolling out his own carpet and Trump announcing he was gonna build a Wall, which was universally viewed by opinion-makers as signalling the beginning as well as the end of his campaign. Could it really get any crazier?Report

    • North in reply to Christopher Carr says:

      She’d never need to. In that scenario Trump would likely mount a 3rd party bid and she’d get all the benefit of having him in the race without any of the downside of having him on her ticket.Report

    • Kim in reply to Christopher Carr says:

      Floor fight means there is no longer a GOP establishment to speak of. Seriously, that is just the most stupid idea ever if you want any of Trump’s supporters to vote for you.Report

  3. Michael Drew says:

    It’s a completely daft and dumb idea AFA I can see, almost completely because of the recusal-related issues. I say “-related,” because, whether the issue would be the diminished Court resulting from Obama in fact recusing himself, or, I think more significantly, hew and cry for him to do so, and resulting diminishment of the Court’s prestige and authority any time an issue related to Obama’s administration came up, the problem presented would be obvious and unmanageable.

    I’m trying to get my head around exactly why it was apparently so copacetic for Taft to make the move (approved 60-4). Taft was an accomplished jurist before becoming president (federal judge and SG): that probably helped somewhat. But Taft’s administration was fairly activist; I’m not sure how much of it actually ended up before the Court while he was Chief, but it stood to reason a lot of things would when the idea was being considered.

    I think as much as anything it was probably just that the machinery of protest simply didn’t exist then as it did now, while the set of people who were in a position to have their opinion matter about SC nominations was an extremely exclusive group. That’s all changed. Now there is huge media-political-activism infrastructure that makes every last thing controversial, and the genuinely controversial things complete maelstroms. And it focuses on little more intently than it does Supreme Court nominations. I would say that Taft’s administration (i.e. his executive acts, not the offices/people) and major legislative acts were not as controversial as eg. Obamacare and DACA/DAPA, and they weren’t, but I think that is significantly an effect of the media age in which we live and the apparatus of political activism that has developed since then. If you look at Taft’s record as president and try to imagine him being nominated for CJOTUS in a media environment like ours, it’s just about as hard to imagine as Obama’s being nominated for Ass. J.

    Taft, btw? *Massively* (heh) underappreciated figure in U.S. history – and I’m not necessarily saying that as a fan (though I hardly think he was a particularly bad president or public servant overall, either). The GOP isn’t what it is today (or let’s say, was from the ’30s to the Aughts) without him. He made some important reforms in government, as well. It’s a mistake to just think “Taft, bathtub, HA ha!” when thinking of Big Bill. Though I suppose it would be a mistake to just think that even if he were a totally inconsequential figure in history too, come to think of it. But I think that that association can too often get in the way of remembering much else about the man.Report

    • My first draft of this post had a whole lot of love for Taft. I am a proponent of naming the Supreme Court’s building after him. He was, after all, the reason it even exists.

      It’s quite likely that the position Taft always wanted was to be chief justice. He was not particularly attracted to the presidency. He served in that capacity as a loyal soldier, and stepped up to the plate when TR was ready to move the side by tradition, because there was really no one else who could command his level of respect. But he didn’t like the job. There are a lot of jokes about Tafts weight, and he was always a heavy man. But he only became morbidly obese during his presidency, and lost nearly 100 pounds after he stopped being president. Seeing that during his presidency he suffered a significant weight gain, I think that overeating was his way of dealing with the stress of that job.

      And if for nothing else we should remember him for his authorship of the decision in Olmstead v. United States, which is the bedrock foundation of the modern exclusionary rule. Chief Justice Taft gave teeth to the fourth amendment, the strongest continuous imperative of government left over from the Declaration of Independence — making manifest and relevant in contemporary society the ideas of the Revolution, to the enhancement of everyone’s Liberty.

      Maximum respect for William Howard Taft.Report

  4. Kazzy says:

    Are we sure Obama would be the liberal Justice some of us want?Report

    • Gabriel Conroy in reply to Kazzy says:

      I have that same question, Kazzy. Apparently we won’t find out, but it would be a mistake to assume automatically that he would.Report

    • Burt Likko in reply to Kazzy says:

      No guarantees there, either.

      Ask the ghost of Dwight Eisenhower about William Brennan.

      Ask George Bush the Elder about David Souter.Report

    • Burt Likko in reply to Kazzy says:

      For that matter, look at Hugo Black. Zero hints that the politician he was before appointment would transform into the Justice he became afterwards.Report

      • Kazzy in reply to Burt Likko says:

        But is Obama even that liberal a politician?Report

        • Morat20 in reply to Kazzy says:

          No, he’s really not. He’s a fairly pragmatic centrist whose primary methodology is consensus building. If the GOP was, say, the GOP of 30 years ago — it would have been interesting to see what got done.

          Sadly, one of his primary strengths was pretty useless. Compromise and consensus requires two willing parties, after all.

          His particular skillset would be fairly solid as a Chief Justice, though. But again, I’d rather someone WITH his skillset be on the court than him in specific.Report

          • Doctor Jay in reply to Morat20 says:

            He was noticeably to the right of Hillary in the 2008 primaries. Except that there was a cadre of his supporters who willfully declined to notice that, and then pronounced themselves surprised and disappointed when he turned out to be exactly who he said he was.

            This is amusing to me in the context of this year’s contest, though somewhat darkly so.Report

            • Morat20 in reply to Doctor Jay says:

              Bernie supporters are akin to early Obama supporters who are akin to Dean supporters who are akin to…

              Well, you get the picture. There’s always people who fall in love during a primary. Their first big political awakening. They get enthusiastic and involved and deeply committed. And then, you know, life happens like life and not like a story.

              Sometimes the candidate with all those newly fallen in love supporters wins. Sometimes they don’t.

              I leaned Obama in 2008 over Hillary, but being a sane American with a working memory of the last 30 years and willing to read newspaper articles, it wasn’t like I was going to be voting for a Republican anyways. I wasn’t drawn to hope and change in the first place — I thought it was the naive part of his platform.

              I lean Hillary over Bernie now. But again, that’s not going to affect my vote in November no matter who wins.

              But I’m 40. I like pragmatic candidates. I’m suspicious of revolutions. I prefer incremental change a lot of the time. Slow and steady wins the race. I don’t want to burn it all down and build again. Mostly. (Some topics, yes).

              And to be honest, like half the reason I lean towards Clinton over Bernie is simply some of Bernie’s supporters irritate me. Petty and not the best reason (thankfully I have a few others), but…I remember being that young and enthusiastic and, in hindsight, really blind.

              But I don’t think Sanders would make a bad President at all, and it’s not like I’d be voting for the more adamant of his supporters. 🙂 So I can be petty. My one Texas vote won’t matter in either the primary or the general election anyways. (Well, for local offices yes — Houston is getting bluer every cycle…)Report

    • Jesse Ewiak in reply to Kazzy says:

      I mean, even neoliberal DOMA supporting crime bill passing mentally ill killin’ moderate Bill Clinton appointed Breyer and Ginsburg. Obama has appointed two more liberals to the Court. There’s no reason Obama wouldn’t be part of a strong liberal wing with those justices.Report

  5. I could see a president Jeb! appointing Ted Cruz, both to appease the Tea Party and to get him the hell out of the Senate. (On the second point, Lincoln did something similar with Chase.)Report

    • If your goal was “replacing” Scalia as opposed to “appointing a successor,” Cruz would seem to be about the ideal choice.

      With the proviso that Justice Scalia seemed able to easily engender the affection and esteem of his peers, a skill that it seems Senator Cruz may have yet to cultivate.Report

  6. Saul Degraw says:

    I think that all the stuff about appointing Obama is largely to troll Republicans combined with inchoate wishful thinking. I suspect that many people doing the trolling will see that Obama is perfectly capable of writing positions that enrage them.

    I say this as a Obama supporter.Report

    • It’s completely to troll Republicans. And it’s fun to imagine what would ensue: McConnell would do whatever was in his power to stop it (prevent and/or boycott hearings, invoke senatorial courtesy to prevent a vote, filibuster, blow up the Capitol building like the end of The Producers), the lobbying groups (like Heritage! Action!) would threaten to primary any senator who broke ranks, David Bernstein would insist that there’s a 200-year-old precedent for not nominating a former president to be an associate justice (or a former president at all: Taft was an ex-president), The pitch of Sean Hannity’s voice would rise until he was only annoying dogs.

      Fun for the whole family.Report

      • North in reply to Mike Schilling says:

        Yeah in reality a triumphant Pres. Hillary would not nominate Obama for several reasons:
        -Obviously he’s a trolling candidate, that doesn’t play well with the electorate.
        -more importantly, Obama is too old. You’d want a younger candidate with a longer expected shelf life.
        -equally importantly Obama simple isn’t a career judge. The Liberals have a full stable of judicial candidates. There’s no reason to nominate Obama.
        -Most importantly, Obama wouldn’t accept.

        But just typing it out gave me a happy glow. If the GOP holds the door all the way to election day and loses, I can just… imagine it… Scalia’s seat lost, and probably a couple other judges on that court replaced by Hillary. The tears would be so.. so… sweet.Report

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  9. Thought experiment: something bad mysteriously happens to President Obama and VP Biden. Subsequently, President Ryan nominates a solid conservative to the Court,

    1. Does Majority Leader McConnell stick to the principle of “This should wait until the people have spoken in the 2016 election”? (Which would become more relevant given an unelected president.)
    2. If he doesn’t, would he be criticized by any of the pundits also invoking that same principle?
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