Hillary for the Court?

With Supreme Court Justice John Paul Stevens announcing his retirement, the speculation game is rampant — who will President Obama name to replace the retiring liberal?  According to a Fox News report, Utah Senator Orrin Hatch added an interesting name to the list:  Secretary of State (and former rival to then-Senator Obama in a hard-fought contest for the 2008 Democratic nomination) Hillary Rodham Clinton.

Secretary Clinton would certainly be a controversial choice.  Remember the Whitewater scandal and Kenneth Starr?  The missing Rose Law Firm files, the FBI files in the White House (illegally), the suicide of aide and friend Vincent Foster that had the conspiracy theorists in a tizzy:  Mrs. Clinton has had a past filled with controversy and infamy.  However, she's also now served as a Senator from New York, First Lady, on the Board of Directors for Walmart, and, an alumna of Wellesley and Yale Law School, was previously named as one of the 100 most influential lawyers in the United States.  While lacking the judicial pedigree of most recent successful nominees, she does have a broad range of legal experience.

The political machinations would also be fascinating.  President Obama's poll numbers have been sinking like a stone, with pollsters like Rasmussen and Gallup putting the President at less than 50% approval.  While primary challenges to sitting Presidents — even unpopular ones — are rarely successful, low poll numbers might encourage challengers to the President in 2012; as the 2nd place finisher in 2008, Secretary Clinton would be a prime consideration.  Putting her on the Supreme Court would take her out of play as a potential challenger — there's no way she would resign a lifetime appointment to the Court to pursue a long-shot bid at the Presidency.

A Clinton nomination would likely be an easy Senate confirmation — the Senate is an exclusive club, and its members tend to confirm their colleagues; her confirmation vote for Secretary of State was 94-2, and while she'd get more scrutiny for a lifetime on the SCOTUS — and probably a few more "nays", she would certainly not get filibustered and would most likely pass easily.

Putting Clinton on the Court would also allow President Obama to get a Secretary of State that he trusts... and likes.  Watching body language and reading between the lines of public discourse, one gets the feeling that theirs is still an uneasy alliance, and she hasn't been the most impressive diplomat.  She would be a fairly predictable vote with the liberal bloc on the Court, taking Justice Stevens's place with Justices Ginsburg, Breyer, and now Sotomayor, with Kennedy as the swing vote.  She would be unlikely to rule against Obama's interests in cases involving health care, EPA regulation of greenhouse gases, financial regulatory reform, and other policy agenda items.

Of course, there are pitfalls.  First of all, while she does have her own still-loyal constituency, there are still many on the left who are still made at Clinton for the 2008 nomination fight, particularly her and her husband's criticisms of Obama, and for her support of the Iraq war.  And, don't forget the double-edged sword of the lifetime appointment — Obama would be giving her a position that would most likely outlast his job as President, even if he wins re-election in 2012.  Also, the current trend is towards nominating younger candidates to the Court, in hopes of choosing someone who will be around influencing decisions for decades to come; Mrs. Clinton is 63 already.

With every big nomination, it seems that there are always some courtesy mentions — names that are floated or leaked but never seriously considered.  Doing so can flatter a potential ally, placate a potential opponent, or pander to a particular constituency or special interest.  In some cases, people who wish to be considered a candidate float their own name, hoping to get a bite.  In the case of Secretary Clinton, the Obama White House didn't take long deny the potential candidacy of Secretary Clinton.  Which brings us to the question:  what kind of news boomlet was this?  Did the White House float her name, to check the waters?  Was her name floated out of courtesy?

One most intriguing — and Machiavellian — possibility is one I haven't heard discussed yet:  that Senator Hatch made the whole thing up, with the possible intention of stirring up some support for Mrs. Clinton among those who still have loyalty for her and putting the Obama Administration in a tough position — one where they feel like it is necessary to consider her.  In doing so, Hatch would be ensuring that a more liberal candidate, possibly even a very young one who would be on the Court for years to come, would be bypassed in favor of the Secretary, or else there would be some more dissension in the ranks — either way, it puts the Administration on the defensive.

At any rate, while it appears Secretary Clinton won't be the choice, Senator Hatch's gambit — if it was in fact intentional — at least made the White House scramble a little to quash the story.  That's time that wasn't spent on new taxes, spending, and entitlements.  These days, every little bit counts.

 

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