In politics, there are two guiding principles: Anything is possible, and always expect the unexpected. Therefore, it is conceivable that if Hillary Clinton is elected 45th president of the United States she could nominate the 44th president to the Supreme Court.
For starters, it is perfectly legal, and President Obama would not be the first former president to hold the title of Justice. That distinction went to William Howard Taft, the 27th president of the United States. After his reelection defeat in 1912, Taft did not don the robe of Chief Justice of the Supreme Court until 1921 when appointed by Republican President Warren G. Harding. Taft then led the high court for nine years until 1930.
It is doubtful that Chief Justice John Roberts would step aside for President Obama to follow in Taft’s exact footsteps, so technically Obama could be the first former president to serve as an Associate Justice. But like I said, anything is possible.
A Google search shed some light on this possibility. A Washington Times headline from January 27, 2016, read: “Hillary Clinton ‘loves’ the idea of appointing Obama to the Supreme Court.” Times reporter Kelly Riddell wrote that Clinton told the crowd at an Iowa campaign event that the next president “may have to appoint up to three Supreme Court justices.” Then, when someone mentioned that Obama could potentially fill one of those vacancies, Clinton replied: “Wow, what a great idea. No one has ever suggested that to me, I love that, wow.”
Then she added, “He may have a few things to do, but I tell you, that’s a great idea. I mean, he’s brilliant, he can set forth an argument and he was a law professor, so he has got all the credentials, but he would have to get a Democratic Senate to get him confirmed.”
Just two weeks later on February 13, Justice Antonin Scalia died suddenly. Scalia’s passing increases the likelihood that the next president could be tasked with filling four vacancies considering that three of the eight sitting justices are over the age of 75 — Ruth Bader Ginsberg is 83, Anthony Kennedy is 80, and Stephen Breyer is 77.
Obviously, four potential appointments would drastically impact court decisions for several decades, and this is the reason why, on May 18, Donald Trump released his list of potential SCOTUS nominees.
Then on July 30, The Hill reported that Clinton’s SCOTUS “short list” had emerged. It was no surprise that Obama’s name did not appear, but here are some reasons why President Obama might find the high court an enticing place to spend a decade or two of his post-presidency.
A seat on the Supreme Court would enhance Obama’s overall legacy — the building and perception of which he is keenly aware. Recent accolades for post-presidential activity (especially among the last two Democratic presidents Carter and Clinton) has greatly contributed to their legacies, increasing the pressure for future former presidents to continue to “make a difference.”
Moreover, “Justice Obama” could further influence issues that impacted his presidency when hot-button cases involving Obamacare, gun control, immigration, and executive overreach come before the Supreme Court. Justice Obama would not be forced to recuse himself because with very few exceptions (like having a financial investment in a company that is before the court) justices make their own decisions of when to recuse themselves.
Another positive factor that could sway Obama’s decision to accept a Supreme Court nomination is that a seat on the high court is a prestigious, cushy job allowing him plenty of time to play golf, write, speak, and travel on someone else’s credit card.
A Washington Post expose that ran on February 19, the day before Scalia’s funeral, revealed the justices’ lavish lifestyle with a headline that read: “ ‘Supreme Court justices are rock stars.’ Who pays when the justices travel around the world?”
Reporters Mark Berman and Christopher Ingraham wrote:
When justices do venture outside of Washington, the tabs are frequently picked up by outside organizations. A review of annual financial disclosure forms filled out by the justices’ shows that in recent years, Scalia and the eight current justices took at least 365 trips for which an outside group picked up some or all of the tab.
“We live in a world now where all the Supreme Court justices are rock stars,” said Ronald D. Rotunda, a law professor at Chapman University. “They’re invited all over the place. They publish their books, they go on book tours…. People just like to have them around.”
How perfect does a “rock star” job sound for future former President Obama?
And, if Obama needed more reasons to wear a flowing black robe, here is another: the former president would be working in a protected policy-wonk bubble surrounded by Harvard and Yale law school graduates while pontificating over the Constitution and contributing to controversial rulings that can transform the nation compatible with his views.
With all that in mind, how likely is President Hillary Clinton to appoint Obama to the Supreme Court? It could depend on the “pay-back” factor.
Consider these scenarios: the election is close, and Hillary believes that President Obama helped turn the tide in her favor. Or, if elected in a landslide where Obama’s voter coalition turned out in force (after his non-stop campaigning on taxpayers’ dime), my guess is a 50 percent chance based on her enthusiastic reaction back in January.
However, Obama would likely be Clinton’s third or fourth SCOTUS appointment, providing adequate time for him to adjust to his post-presidential life after being inundated with job offers. Remember that President Taft was appointed to the Supreme Court eight years after leaving the White House.
Then one must consider that Obama turns 55 this month, still young for a former president. But sometime during Hillary’s term he might be ready for a new “rock star” title with some pomp and circumstance that could carry him well into his 80s.
Finally, Obama has trampled the Constitution and super-sized the executive branch over what is supposed to be three co-equal branches of government. And given that the Supreme Court has ruled against the Obama Administration more than any other presidential administration, a “Justice Obama” would be the ultimate irony.
Once again remember that in politics, anything is possible, and always expect the unexpected.
Myra Adams is a media producer, writer and political observer who served on the McCain Ad Council during the 2008 McCain campaign and on the 2004 Bush campaign creative team. Her writing credits include National Review, WND, Washington Examiner, PJ Media, The Daily Beast, The Daily Caller, RedState and BizPacReview. E-mail her at MyraAdams01@gmail.com. Follow her on Twitter @MyraKAdams.