When I was an undergraduate at the University of Texas at Austin, I took a course with Lucas A. Powe, Jr. titled: The Supreme Court and Public Policy. This was by far one of my favorite courses I took at UT—Powe is a brilliant lecturer, and his experience clerking for Justice William O. Douglas really filled in some great details that brought his stories to life.
The object of the class was to understand how the personal ideologies of each Justice played a key role in the decision-making process—that, when studied academically, the Supreme Court is, in fact, a political body rather than a traditional court of laws. The individual members making up the Court each play a pivotal role in deciding how the Court as a whole will view certain cases. Whenever there would be a death or resignation on the Supreme Court, it would become a political game for the incumbent President. Since the court decisions are often decided by a vote of 5-4, a strategic “swing” seat appointment can prove invaluable to the President’s agenda.
All that being said, the President can’t simply appoint anybody. The nominee must be somebody who meets the necessary qualifications of a Supreme Court Justice—that is to say, somebody that will be approved by the Senate. If you look at our current Supreme Court bench, you will notice some similarities:
- All of the current Justices graduated from Ivy League Law Schools: five from Harvard Law School; three from Yale; one from Columbia
- Also, interestingly, three of the Justices attended Princeton for undergraduate—which is sort of unusual given the relatively small size of the school. Apparently Princeton-Harvard is the winning combo to be a Supreme Court justice.
- Six of the Justices are Roman Catholics. The remaining three are Jews. We actually haven’t had a Protestant Justice since John Paul Stevens’s retirement from the bench in 2010.
- All of the Justices but one—Elena Kagan—served as judges for the U.S. Court of Appeals. Kagan, not to be outdone, only served as the Solicitor General—the attorney that represents the Federal government before the Supreme Court.
- Five out of nine of the Supreme Court justices have served in academia—usually teaching Constitutional Law. The four who haven’t served as professors of law, yet, are usually the younger Justices: Roberts, Alito, Sotomayor, and Thomas (who isn’t actually younger).
Historically—or at least, according to Powe—there have also been certain seats that have been “reserved” for certain…demographics…of people. In the past, there has been a “Jew seat” and a “Woman” seat, but the arguably most famous seat has been the “black seat” that was created in 1967, when LBJ appointed Thurgood Marshall to replace Tom C. Clark.
In 1991, when Marshall retired from the Court, George H.W. Bush—not wanting to upset the racial balance of the court—nominated the ultra-conservative Clarence Thomas.
Powe told us that he feels it is unlikely that any President would upset the so-called “racial balance” of the Court. Clarence Thomas’s confirmation was met with significant difficulty, largely because the Senate felt that he lacked experience serving as a judge—although the sexual harassment complaints didn’t help his case. A year prior to Thomas’s nomination to replace the outgoing Marshall, President George H.W. Bush had nearly nominated the young judge to replace William Brennan. However, because Thomas had only had—at the time—eight months of experience serving as a Federal judge, he was passed over in favor of the more experienced David Souter. Eight months later—now having enough experience as a Federal judge, Thomas was nominated.
Clarence Thomas is by no means an old Supreme Court Justice—he’s only 65 years old—but he’s also not going to live forever. And, it’s still unlikely that the future President is going to break the chain of black Justices holding that seat on the Court. I argue that Barack Obama would make an excellent—if not, the ideal—candidate for that Supreme Court seat.
Now, before you grab your torches and pitchforks, hear me out. Let me list some of Obama’s achievements and see if they might fit the description of a Supreme Court justice:
- Graduated from Columbia as an undergraduate.
- Graduated Magna Cum Laude from Harvard Law School, and was the first black President of the Harvard Law Review in the Spring of 1990. He’s obviously no slouch when it comes to legal academia.
- He was a Professor of Constitutional Law at the University of Chicago from 1992-2004. Technically, he was a lecturer rather than a tenured “Professor”, but he taught at a top law school nonetheless. In fact, he taught constitutional law alongside Elena Kagan.
- He has served as a U.S. Senator, as well as President of the United States. I would be hard-pressed to find somebody with more impressive credentials than that for any job.
Having somebody jump from the Presidency to the Supreme Court is not unheard of—it happened once before with William Howard Taft in 1921. Eight years after having served as President, Taft was nominated by President Warren G. Harding to become Chief Justice of the Supreme Court.
Taft had once been quoted to say:
“there is nothing I would have loved more than being chief justice of the United States.”
I guess President Harding made his life in 1921. For some people, the Presidency is not the ultimate goal. For Taft, his dream was to oversee the highest court. And, apparently, he was a great justice who was well-respected by his peers—in contrast to his difficult Presidency which was marred by criticism.
Justice Felix Frankfurter once remarked that it was,
“difficult for me to understand why a man who is so good a Chief Justice…could have been so bad as President.”
President Obama’s tenure in office has been…controversial to say the least. His opposition in the House has been unprecedented, and everything he touches seems to be immediately viewed as poison by the Republican party—despite my beliefs that he is actually very moderate in his personal policy goals and beliefs. I think he would be an ideologically central Justice, and could maybe even become the new swing vote on the court—assuming the ideological make-up stays more-or-less the same.
On another note, President Obama’s written legal opinions would make for a fascinating read; with such a wealth of real, political experience, one has to wonder what the man would have to say about controversial rulings on controversial issues: What would he say about abortion, rape, or drugs if he were finally given tenure to voice his opinions honestly? Adios, Scalia opinions! If Dreams from my Father is any indication, I would say that his writing would be highly readable, but also walking on egg-shells. He probably wouldn’t attack a case the way Scalia does with his legal logic—like a knight on horseback wielding a mighty lance and charging wildly at full gallop—but rather, he would probably be very mild, even-tempered, and probably careful not to contradict his Presidential decisions—but also strict and knowledgeable.
Of course, if President Obama were to be nominated to the Supreme Court, it would likely have to be when Thomas retires—which will most likely not be for many years. But, since Obama is thirteen years his junior, it is not an impossibility. Also, in order for President Obama to be nominated, the future President would have to be from the Democratic party, and the Democrats must control the Senate. And, even if the Senate were controlled by the Democratic Party, it would likely still be a close approval. If the Senate keeps polarizing at the rate it currently is—and if Obama’s nomination successes during his Presidency are any indication whatsoever—I would expect something like the Clarence Thomas approval at best.
If he pulled it off, Obama would become the first man to serve in all three branches of the U.S. Government. That would be quite an achievement. Personal ideology aside, that accomplishment alone probably deserves a statue somewhere.
It’s anybody’s guess as to what President Obama plans to do come January 21st, 2016. He has a lot on his plate between now and then, and I’m sure he is going to need some time to recover once it’s all over. But I volunteer that President Obama is unlike Presidents Carter, Bush, Clinton, and Bush. I believe he has a great legal, academic mind—qualities that make a good Supreme Court justice—and I assert that such a man would be better suited serving the nation as a judge, post-Presidency, rather than as a traveling speaker, fundraiser, or philanthropist like his predecessors.
President Obama is still relatively young. Who knows what’s in store for our nation’s future—politically or otherwise. It would take an alignment of the stars to happen, but I, at least, would salivate at the prospect of Barack Obama in a black robe—I think the color suits him. Also, there is a great little basketball court on the second floor of the Supreme Court building…just something to consider, Mr. President!