Friday, January 04, 2008

Justice Clinton? Yeah, Right.

The speculation about President Hillary nominating her husband to the Supreme Court bench seems, to me, a bit much. The Wall Street Journal hit it first, presumably to trump up further right-wing indignation about a prospective Clinton Dynasty. Now CNN is in on the action, explaining that federal anti-nepotism laws don't apply to a President's judicial nominations.

So it could happen. But would it?

One key issue that I haven't seen discussed is recusal. I went on Westlaw a moment ago. In 2007 the Supreme Court issued 16 orders or opinions in cases in which President Bush was a named defendant. These are all "official capacity" cases, of course, and many of them relate to Guantanamo detentions. So it's possible and even likely that a President Clinton would find herself sued in federal court less frequently than her predecessor. Still, though, it's pretty much a certainty that a case will land in the Supreme Court in which she's on one or the other side of the "v."

It seems to me an open question whether Bill should recuse himself from reviewing executive actions taken by his wife. Recusal would be pretty much automatic if Hillary were sued in her personal capacity. Official capacity is a different matter: Justice Scalia invoked the distinction in a case involving official actions taken by a certain hunting buddy of his. So there is precedent for a Justice Clinton to stick around in an official capacity case against his wife. And for that matter, the precedent comes from a right-wing justice in a case against a Republican Vice President. But all the ingredients for a firestorm of conservative outrage are here, nonetheless. In politics, if there's an occasion for outrage, there will be outrage — whether or not it's warranted or hypocritical.

As I see it, it just wouldn't be worth the grief. To be sure, I think Bill Clinton would be a more-than-adequate Supreme Court Justice. Bill could bring to the bench eight years' experience with matters of national security on the executive side. We've seen an unprecedented expansion of executive power in recent years, and the questions about the constitutionality of the President's arrogated (and to be fair, occasionally delegated) powers are steadily making their way to the Supreme Court. I think it's fair to say that the Court could rule more confidently in these cases if a former Chief Executive sat on the bench. The extent to which a President needs to be able to do X to keep the nation secure from cataclysmic harm is probably not, in most cases, an appropriate consideration when the Court is asked to review the President's authority to do X. That said, you can bet the Court takes this and other practical considerations into account when it rules on the constitutionality of X. Having former President Clinton on the bench would add value on this score.

But again, I say it wouldn't be worth the grief. The recusal question would occur and recur, and even in cases when it wouldn't be on the table per se — for example, in any other case challenging executive action that does not rise to level of the President's desk (suits against the Attorney General, or executive agencies) — you'd hear howls of bias from the nongovernmental party. Moreover, if a Justice Clinton did have to recuse himself, he'd not be very useful to the President. You nominate justices who you think will advance your interests while on the bench (see, e.g., Chief Justice Roberts and Justice Alito). Toward that end, you want a full-timer.

Finally, there's the Perfect Storm Scenario: Bush v. Gore all over again, but in 2012, with President Hillary Clinton's reelection hanging in the balance, and her husband on the Supreme Court bench. In this case Justice Bill would have to recuse himself: it's his wife, suing or being sued in her personal capacity, and the stakes couldn't be higher. What if Justice Bill opts out and the Court splits 4-4? Wow.

In the end, I just don't think Hillary cracks open this can of worms. It may make for interesting speculation, or easy fearmongering, but it just wouldn't happen. Bill seems pretty committed to the prospect of traveling the world as American goodwill ambassador, if Mrs. Clinton wins. He can do a lot of good in that capacity — indeed, with his name recognition, charisma, and cachet abroad, he's uniquely suited to fill that role. There are a dozen or so accomplished liberal jurists who would do as good or better a job on the Court. Let Bill do what Bill does best, and don't — er — "Court" controversy.