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!
- N.b., not all of them. [↩]
- I admit that at one point I thought this was exceedingly unlikely. [↩]
- 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. [↩]
- Black’s mostly admirable judicial record was a remarkable mirror image to his decidedly, shall we say, unappetizing political career. [↩]
- After he resigned from the Supreme Court, Justice Byrnes was elected the Governor of South Carolina. [↩]
- The late Antonin Scalia had not, either. [↩]
- 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. [↩]
- 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. [↩]
- A considerable amount, no doubt. The Chief is reputed to be a great gentleman. [↩]