Predicting Judicial Greatness in A Theoretical Justice Barack Obama

Predicting Judicial Greatness in A Theoretical Justice Barack Obama

In the wake of Justice Antonin Scalia’s death, President Barack Obama can nominate a potential successor to Scalia’s seat on the Supreme Court of the United States. Republicans in the Senate are lining up pretty rigidly behind the “No Hearings, No Votes” position.1 Their claim is that the voters should express their preference for what kind of a judge fills that seat next, by picking the next President.

Implied in the claim is that if a Republican is elected President in 2016, that suggests a majority of the American people prefer to see a more conservative-voting Justice there, someone similar to the kind of Justice that Scalia was. Leaving aside the rather dubious logic underlying such a contention, offering this as a political claim leaves them vulnerable to the converse: should a Democrat be elected President in 2016, then their own logic suggests that a majority of Americans prefer that a more liberal-voting Justice take that seat, and thus steer the court decisively leftward.

It still seems the most likely scenario to me now2 that come January 20, 2017, Hillary Clinton will become the forty-sixth President of the United States and will nominate Justice Scalia’s successor. This left some people half-joking that come 2017, a newly-elected President Hillary Clinton ought to give the Republicans exactly the outcome they would hate the most, and nominate former President Barack Obama to the Supreme Court. She could, after all, claim his nomination had the popular mandate which the Republicans put in play. This would be an easier thing for her to do if Clinton’s election came with some coattails that shifted the balance of control in the Senate more towards the Democrats.3

Bear in mind, I heard this on the radio while driving to a jury trial out of town, that I began trying a few days ago. Once I start a jury trial like this, I descend into a bit of a monastic intellectual focus. In idle moments, I thought about this but didn’t seek out a lot of news or chatter from the world. Still, I found myself dubious about the idea of a Justice Barack Obama. In wrestling with the idea, I found that my discomfort came from two sources.

First, Obama’s background in legal scholarship is light. He was a remarkable law student. But the fact is, I have more published articles in the canon of legal scholarship than the President. This is not a disparagement. The title of Editor-in-Chief of the Harvard Law Review is not given to intellectual lightweights. The Editor-in-Chief of that publication has too much on his or her hands between completing the third year of law school and overseeing the publication of one of the nation’s premier journals of legal scholarship to write his own piece for it. Obama did not do this. He is informally credited with an unsigned squib surveying the question of whether a fetus may sue its mother, and concurring with majority published opinions that it cannot. Law Student Obama clerked for noted Constitutional scholar Laurence Tribe and Professor Tribe remains impressed with that scholarly work to this day. He was an adjunct professor of Constitutional Law at University of Chicago Law School, which is pretty cool, but adjuncts don’t do the same sort of scholarly work that full-time professors do. Thus, the annals of legal scholarship are devoid of significant scholarly contributions by Barack Obama.

So, while he hasn’t done legal scholarship, there really isn’t any reason at all to think he couldn’t. And he’d have law clerks supporting his work. So what if he hasn’t been a legal scholar before? He could become one without too much difficulty.

Second, Obama has never before served as a jurist in any capacity. So far as I can tell he hasn’t even volunteered an afternoon to serve as a traffic judge. His professional background has been entirely political. Is that a bad thing in a Justice? Let’s consider the “modern era” to begin at the turn of the Twentieth Century. 54 Justices have been appointed to the Court since 1901, of whom 14 have held elected office prior to their service:

  • Chief Justice William Howard Taft (President)
  • Chief Justice Charles Evans Hughes (Governor of New York).
  • Chief Justice Fred Vinson (U.S. House of Representatives).
  • Chief Justice Earl Warren (Governor of California).
  • William Moody (House of Representatives).
  • Joseph Lamar (Georgia Legislature).
  • Mahlon Pitney (U.S. House, New Jersey Legislature).
  • George Sutherland (U.S. Senate).
  • Hugo Black (U.S. Senate).4
  • James Byrnes (U.S. House and U.S. Senate).5
  • Frank Murphy (Governor of Michigan).
  • Harold Burton (Ohio Legislature, Mayor of Cleveland, and U.S. Senate).
  • Sherman Minton (U.S. Senate).
  • Sandra Day O’Connor (Arizona Legislature).

Indeed, it’s fair to say that the current composition of the Court, insofar as none of its members have ever held elected office6 is somewhat unusual in the Court’s history, even in the modern era. But also, please note that nearly all of the Justices in the modern era have had substantial political experience of some form or another in appointed positions prior to service on the High Court, most often in the U.S. Justice Department. Every Chief Justice from 1901 forward meets this description.

Now, look at it the other way around. Barack Obama is both a lawyer and President: how often has that happened? Limiting our inquiry again to the twenty Presidents to have served from 1901 to today, nine have either been admitted to practice law or at least completed a course in formal legal education.7 A large minority of Presidents, then, are lawyers.

Then there’s the issue of prior judicial experience. Of the 112 Justices to have served since the Washington Administration, 40 of them had no prior judicial experience. Limiting the inquiry to Justices appointed in the twentieth century or later, we find that 21 of 54 Justices had no prior judicial experience. Some of them were quite good. Some of them were mediocre.8


I see no evidence in history that either holding public office, or having prior judicial experience, predicts greatness for a Supreme Court Justice.

So — I had to ask myself, why not Justice Barack Obama? We know he’s really smart academically. We know he hasn’t groomed that facet of his C.V. all that much. There’s no reason to think he wouldn’t be capable of it on the bench, the way so many other Justices did.

My own sources of discomfort for the idea turn out to not be based on anything that history can illuminate. After some reflection, the biggest issues I can foresee that stand up to reason would be protocol and recusal.

A Justice Obama would be an Associate Justice of the Court, and the Court adheres with a high degree of rigidity to seniority as a matter of precedence. The most junior Justice does things like open and close the door in conference, which is to the extent that any of them are subordinate to one another, a subordinate position.

We don’t like the idea of seeing a President, even a former President, be subordinate in pretty much any way. Extraordinary honors and social precedence are afforded to former Presidents. Granted, it’s no small honor to be on the Supreme Court, but it’s a greater honor to be a former President. It’s all mapped out nicely in a rather formal listing of our national order of precedence. So a former President as a junior Associate Justice creates something of a dilemma for protocols, and on a near-daily basis in the Court, we’d see Barack Obama in a subordinate position to John Roberts, regardless of whatever respect and regards would be afforded between the two.9

There’s also the question of Justice Obama potentially ruling on the validity of something that President Obama had done previously. When Elena Kagan became an Associate Justice after having served as Solicitor General, she recused herself from several matters that she had worked on personally as the government’s advocate. There were a non-trivial number of cases that the Court had to hear with only eight members during that time. That time is largely past by now. All eight of the current Justices now only recuse themselves from cases involving parties with whom they have significant financial interests.

A theoretical Associate Justice Barack Obama would have this problem, only substantially magnified. Maybe a third of the cases on the Court’s docket involve actions of the Federal government in one way or another, and it’s well within imagination that for the 2017-2108 Term, Obama would probably have to recuse himself from dozens of those cases. Over time, as the Court’s focus would move from decisions made by the Obama Administration to decisions made by the Second Clinton Administration, the need for such recusals would diminish.

So these are problems, but they’re pretty clearly not insurmountable or intolerable problems. Obama would have the intellectual ability to serve, and administratively, managing a staff of four law clerks would be cake for him after running the White House. Some former politicians became really capable and influential Supreme Court Justices. Others were no better than baseline, and still others turned out mediocre. We have no way of knowing in advance whether Barack Obama would become a jurisprudential giant like Warren or Black, or if he’d fall into a less esteemed category.

But, there is another problem with this clever, schadenfreude-heavy plan which would make Democratic partisans so very very happy: turns out, Obama doesn’t want the job.


So much for that!

  1. N.b., not all of them. []
  2. I admit that at one point I thought this was exceedingly unlikely. []
  3. A proposition which some claim would be facilitated by the presumably-unpopular-to-the-general-electorate Donald Trump gaining the Republican Party’s Presidential nomination. There’s some unknown and potentially false assumptions baked into this hypothetical scenario. []
  4. Black’s mostly admirable judicial record was a remarkable mirror image to his decidedly, shall we say, unappetizing political career. []
  5. After he resigned from the Supreme Court, Justice Byrnes was elected the Governor of South Carolina. []
  6. The late Antonin Scalia had not, either. []
  7. McKinley, TR, Taft, Coolidge, FDR, Nixon, Ford, Clinton, and Obama. Future Presidents Wilson, Harding, and LBJ each formally studied law for various periods of times, but did not complete courses of formal legal education. []
  8. Note that by “good,” I do not mean “wrote opinions I admire or voted in ways that conform to my preferences.” Rather, I mean, “demonstrating a level of legal ability above the already-high baseline for the Court, and laying an intellectual foundation that influences the law beyond the scope of an individual holding.” I might not particularly care for how Justice Robert Jackson directed his jurisprudence, for instance, but there ought to be no doubt Justice Jackson exercised a powerful intellectual influence on the law in a way that most of his peers did not. By this definition, Antonin Scalia was a great Justice, as is Ruth Bader Ginsburg. []
  9. A considerable amount, no doubt. The Chief is reputed to be a great gentleman. []

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Pseudonymous. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Lives in Southern California (for now). Former Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. Likes: respectful and intelligent dialogue, good wine, the Green Bay Packers, and long romantic walks on the beach. Dislikes: mass-produced barley pop, magical thinking, ketchup, and insincere people. If you follow him on Twitter at @burtlikko you may be disappointed.

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34 thoughts on “Predicting Judicial Greatness in A Theoretical Justice Barack Obama

  1. 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.


    • 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.


  2. 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.


    • 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.


      • 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?


  3. 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.


    • 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.


        • 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.


          • 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.


            • 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…)


    • 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.


    • 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.


  4. 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.


    • 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.


      • 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.


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  7. 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?
    3. Does anyone disagree that “no” and “no” are completely obvious?


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