By Dr Russell Bentley, Associate Professor in Political Theory and Associate Pro Vice-Chancellor (Education) at the University of Southampton.
It will never happen, but the question was put directly to Hillary Clinton by a voter in Iowa: if elected president, would she consider nominating Barack Obama for a seat on the Supreme Court? It isn’t an idle question. Nominations to the Supreme Court might be the sleeper issue in the 2016 presidential race. Three, possibly four current justices could retire during the next president’s first term. On a court that so frequently breaks 5-4 on issues that traditionally divide conservatives and liberals, appointing even one or two new justices could define the character of the Court for a generation. Appointing three or four? The constitutional implications could be profound.
Confirming Obama would be an interesting spectacle, to say the least. The only former president to serve on the Court was William Howard Taft, who was nominated to be Chief Justice in 1921 and received Senate confirmation with ease (only four nay votes out of sixty-four). The practical considerations of nominating Obama would certainly be more fraught. The modern Senate is not the place that confirmed Taft. Lengthy and occasionally inquisitorial hearings before the Senate Judiciary Committee confront any nominee. Witnesses are called and a kind of prosecutorial grand-standing typically characterises the event. Since we have every reason to assume that Republicans will retain control of the Senate, that simple majority could be the insurmountable obstacle for nominee Obama – which further assumes that the nomination survives the committee stage. Practically, then, this suggestion is dead from the start. Some will surely cling to the idea that he is especially qualified, nonetheless. There is sometimes a suggestion that he would be an appealing nominee because of that Harvard Law Review background and the law professor style. This hardly makes him different from the rest of the Court, however. There are currently five justices with a Harvard education (three from Yale and one from Columbia).
Nevertheless, the prospect of Justice Obama makes an interesting thought experiment. What kind of justice would he be? Advocates of same-sex marriage and LGBTQ rights (or simply, and more accurately, “civil rights”) could rejoice that a president who had steered America away from the dark days of “Don’t-Ask-Don’t-Tell” and the Defense of Marriage Act (both legacies of Bill Clinton’s years in office) would now be sitting on the highest court. Those who thought they would never see a major health care reform bill make it out of Congress might also rejoice. Obama can be congratulated for marshalling support for the Affordable Care Act (ACA) and for getting it signed before Republican majorities took over both houses of Congress. He can also be congratulated that the Supreme Court upheld key provisions of the ACA (twice – in NFIB v. Sibelius and King v. Burwell). He might be congratulated a bit less, though, since the bill that became the ACA bore much more resemblance to Hillary Clinton’s health care proposals in 2008 than the plan on which Obama campaigned that year. Nevertheless, with a Justice Obama on the bench, the Affordable Care Act would likely see off any future challenges.
Happy days, then, if this sounds like your kind of progressive legislation. However, Obama inherited a fairly awful foreign policy situation from George W. Bush. Besides the era of endless war that Bush’s disastrous doctrines and policies ushered in, he also greatly expanded the scope of executive authority. Obama has dismantled none of that and, arguably, has taken it to new levels. Under Obama, the worst kept secret is that the United States engages in an Oval Office-directed programme of assassinations through the use of drones. Cloaked in language about targeting suspected terrorists, the US launches what are called signature strikes. These are targeted killings of individuals whose signature behaviours and other indirect evidence suggest that they are dangerous militants. The individuals in question may not be known to the drone operators, but their behaviours provoke the appropriate suspicions, so to speak. The programme is reported to have killed many innocent people. It has said to have killed four US citizens. The programme has raised more than a few legal questions and criticism has not been muted.
Less happy days, then, if this does not sound like your kind of progressivism. Justice Obama would be a friend of the executive branch if any challenges to presidential privilege were to make it to the court. Moreover, the phrase “extrajudicial killing”, which is what the drone programme does, is a somewhat curious piece of baggage to bring into the judicial branch. Hillary Clinton, no doubt facetiously, responded to the Iowa voter that getting Obama on the Supreme Court would be a great idea. Maybe that would be the dish served cold, her revenge for a first-term senator denying her the Democratic nomination that she had been preparing to accept at least since the end of Bill Clinton’s presidency. Obama was less warm to the suggestion of joining the highest court.
Many Democrats are already wearing rose-tinted spectacles for the Obama years. The domestic legacy is held up as monumental. The foreign policy legacy and the never-ending war that calls for a never-ending commander-in-chief mode of presidency – well, the accolades fade out on those points. It is difficult to say if we should be grateful that Obama is not interested in joining the Court. The presidency has been transformed practically beyond recognition since the 9/11 attacks. No one in the executive branch has really had to give an account of themselves since then. Obama appearing before the Senate Judiciary Committee might be the open airing of some unflattering history that the US sorely needs. However, Justice Obama will never be.