- The Washington Times - Wednesday, May 28, 2008


What would you think about a President Barack Obama nomination of Sen. Hillary Clinton to the United States Supreme Court?

Would she accept the nomination? Would she be confirmed?

Would she have clout with her Supreme Court colleagues?

These questions are not academic. In a politically astute May 21 column in The Washington Post by James Andrew Miller, former special assistant to Senate Majority Leader Howard H. Baker, Mr. Obama promising Mrs. Clinton a nomination in the event of a vacancy was recommended as a shrewd tactic for unifying the Democratic Party in November. Justice John Paul Stevens is 88. His retirement during the next presidential term would not be a shock.

But the attractions of a Supreme Court seat for Mrs. Clinton are not self-evident. The number of Supreme Court written opinions issued each term has plunged from 150 to about 70, an earmark of the court’s dwindling relevance. The towering constitutional issues of the day are fought out between Congress and the White House. The federal judiciary in slow motion plays something akin to the Rosencrantz and Guildenstern roles in Hamlet.

Constitutional law, in any event, is fueled largely by forces outside the courtroom. The Supreme Court’s landmark desegregation decree in Brown v. Board of Education (1954) would have been toothless without Rosa Parks, Martin Luther King, the Little Rock Nine, the Freedom Riders, and other civil rights heroes.

Finally, a commanding court majority sport a conservative philosophy at variance with Mrs. Clinton’s visceral liberal instincts. The lion’s share of her opinions would be in dissent. She would not likely have an opportunity to author a landmark opinion like Roe v. Wade (1973).

Yet, Mrs. Clinton might find the Supreme Court a step up on her professional ladder. She would be one of nine, not one of 100. She might find the Senate tedious and dull after the intoxication of a spirited presidential run. She prides herself as an inspiration for women seeking the presidency or other electoral office. As the third woman on the Supreme Court, she would broaden her role model shadow.

Mrs. Clinton would certainly be confirmed. The Senate is notoriously kind to its own. The last senator nominated to the high court directly from the Senate, Harold Burton in 1945, was confirmed on the same day as his nomination without a hearing or Senate floor debate.

The last former senator nominated to the court, Sherman Minton in 1949, was confirmed despite his rebuff to the Senate’s request that he testify in person about his support for Franklin D. Roosevelt’s court-packing plan. Accordingly, the Senate would not shipwreck a Clinton nomination over suboptimal features of her background.

Her assertion during her presidential campaign that, as president, she would unilaterally attack Iran in retaliation for an Iranian attack on Israel betrayed her constitutional ignorance that Congress enjoys the exclusive power to authorize the initiation of warfare.

In his book, “Hillary’s Pursuit of Power,” Jerry Zeifman, former Democratic chief counsel to the House Judiciary Committee, chronicles Mrs. Clinton’s ethical derelictions and slipshod legal work as a member of the Nixon impeachment staff that ultimately occasioned her termination. Among other things, Mrs. Clinton urged that President Nixon be denied counsel despite the contrary impeachment precedent for Justice William O. Douglas. But Mrs. Clinton was a callow 30 years old at the time, an age when stumbles are more venial than venal.

Justice Clinton would probably not be an intellectual powerhouse on the Supreme Court. Judge Learned Hand observed: “I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the topic.”

That does not sound like Hillary Clinton’s reading list. A mastery of health-care statistics provides no insights into whether the Military Commissions Act of 2006 unconstitutionally suspends the Great Writ of habeas corpus. The Supreme Court is no place for on-the-job training. The last two senators who sat on the court, Burton and Minton, left no imprint.

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