Hillary Clinton.
This is what you have to figure if you look at Obama's real criteria for making his first selection, Sonia Sotomayor. The criteria were fairly obvious: First, find someone politically beneficial; second, find a liberal who could be cast as a moderate, more-or-less, and who therefore would sell, in the Senate and the country, without too much fuss.
Secretary Clinton meets these criteria. She is politically beneficial because she appeals to a part of the Democratic Party that has never been enthusiastic about the President (and thought she rightly deserved the nomination). This is particularly important now, as the President faces a mid-term election that could significantly curb his agenda. Having lost the independents according to numerous polls, his best strategy is to energize and unify the Democratic base without further antagonizing moderate voters. Ms. Clinton would do this far more effectively than any other choice. In addition, by putting Ms. Clinton on the Court, Obama almost certainly neutralizes her as a possible challenger in the 2012 Democratic primaries. A primary challenge is an unlikely but not a trivial possibility given the way things are going. At this point, Obama's presidency most closely resembles that of Jimmy Carter. The country is in the economic doldrums, and there is a perception that Obama is weak and irresolute abroad. Carter, of course, faced a stiff primary challenge from a popular and charismatic Democrat, Teddy Kennedy. The chances that Obama has forgotten this are zero.
Clinton would also be easy to portray as a "moderate." She ran somewhat to Obama's right in 2008, and has been reported to be slightly more aggressive in foreign policy than he. She is associated with the more-or-less moderate administration of her husband (albeit that the moderation was forced by having an opposition-controlled Congress for three-quarters of his term). She is a seasoned politician. She has baggage, but it's increasingly yesterday's news, and White House Counsel's Office can be pretty sure there are no skeletons, or at least no new skeletons, in the closet.
And there is this too about Ms. Clinton's experience: She has held elective office, something it is said Obama wants on the Court. The added bonus is that she served specifically in the Justice-confirming Senate, and senators tend to be relatively hospitable to someone who has been in The Club. (This happened, for example, with John Ashcroft, who riled the liberals but got through with relative ease anyway, in part because he had been a colleague for years).
Although she has no judicial experience, an experience-based campaign against her would be a hard road to hoe. She is Secretary of State and (as mentioned) a former senator. She has been prominent in public life for close to 20 years. Republicans are poorly positioned to mount such a challenge in any event. Two of their well-remembered nominees, Rehnquist and Powell, had no judicial experence, while a third, Sandra Day O'Connor, had only modest experience as a state appellate judge. And while judicial experience gets placed high on the llist as a pro forma matter, its real clout, either in the Senate or in the country, is questionable. Obama is correct, both in terms of history and of contemporary celebrity-based culture, in sensing that prior judicial experience is an overrated virtue.
The other candidates don't measure up in the important ways. Judge Wood, unlike then-Judge Sotomayor, brings on board no particular constituency and has no compelling life story. In addition, she is vulnerable for a confirmation fight on abortion, as she has made some, shall we say, contoversial remarks on that subject. Solicitor General Kagan is exceptionally well credentialed as a scholar (former Dean at Harvard Law), but has no judicial experience, almost no courtroom experience, and has never held political office (getting to be Dean at Harvard is very much a political enterprise, but not in the sense relevant here). Judge Garland brings nothing politically and, indeed, would be more likely to antagonize the liberal base than excite it, since he has not been a liberal firebrand on the D.C. Circuit. More radical candidates like Harold Koh and Deval Patrick would energize the base, but at too high a cost.
Whether Secretary Clinton would do a good job as a Justice -- on criminal law issues or any other -- is a different matter. I will save my own view for later. To give just a brief preview, however, one could also ask whether I would do a good job in the NBA guarding Kobe Bryant.
Leave a comment