Clinton on the Supreme Court? By Tony Mauro
As Sen. Hillary Clinton ponders the next chapter of her formidable career, the prospect of returning to the Senate might be just as unappealing as running for vice president. There's a third path: a seat on the Supreme Court.
Of course, she does not get to pick that job on her own. It would be up to a President Obama to appoint her to the nation's highest court when a vacancy arises and up to the Senate to confirm her. Cynics would describe it as a crass way for Obama to bench ? literally ? a past and possibly future competitor. Some might question her qualifications; unlike every other justice on the current court, she has no prior judicial experience.
But history tells us that a Justice Hillary Clinton is more than possible. At least twice before, presidents have named rivals to the Supreme Court, rivals who hadn't been judges. Results were mixed, but instructive.
Consider Abraham Lincoln. One of his "team of rivals" that historian Doris Kearns Goodwin described in her 2005 book was Salmon Chase, a distinguished lawyer and senator who had run against Lincoln in 1860. Once elected, Lincoln held his enemy close by appointing Chase secretary of the Treasury. But Chase continued to spar with Lincoln and tried to oppose him again in 1864. When Chief Justice Roger Taney died that year, Lincoln decided to appoint Chase to the court, though he worried in a letter that Chase would "neglect the place in his strife and intrigue to make himself president." He made the nomination anyway.
Chase's ambitions persisted after he joined the court, and he tried to launch two presidential campaigns from there ? something that would be unthinkable today. In his rulings, Chase also undercut Lincoln's wartime policies. All in all, Lincoln's appointment of Chase is not an admirable model for Obama and Clinton to follow, though it wasn't all bad. Chase was a longtime abolitionist, and one of his first acts as chief justice was to admit Massachusetts attorney John Rock as the first black lawyer to argue before the high court.
The Warren bid
Almost 90 years later, another president appointed a rival to the Supreme Court with far better results. In 1952, California Gov. Earl Warren, a former district attorney and state attorney general, was one of Dwight Eisenhower's early opponents for the Republican nomination for president. When Warren's campaign fizzled, he campaigned for Eisenhower, who carried California and won the presidency. At some point, before or after the election, Eisenhower promised Warren the first seat that came open on the Supreme Court. The vacancy came suddenly when Chief Justice Fred Vinson died in September 1953. Within days, Warren went from governor to chief justice.
Warren left politics behind and went on to become the architect of Brown v. Board of Education in 1954, which ordered an end to school segregation. He was one of the most-admired chief justices in history ? except by Eisenhower himself, who reportedly said that because of Warren's liberal positions, appointing Warren was his "biggest damn-fool mistake" as president. But Warren's divergence from Eisenhower's policies has not been viewed as the same kind of betrayal that Chase perpetrated on Lincoln.
What are Clinton's qualifications? Like her husband, she is a Yale Law School graduate who has taught law. Her years in private practice in Arkansas were controversial but have not held her back. She has also served her profession. Twenty years ago, I covered her work as the first chair of an American Bar Association commission on women and the legal profession.
Justices don't always need to be drawn from the ranks of lower-court judges. Many recent presidents ? including Clinton's husband ? have said that the membership of the Supreme Court should be leavened with a politician or two who'd bring a practical rather than theoretical approach to resolving legal dilemmas.
And chances are that a Justice Clinton would not undercut Obama from the bench the way Salmon Chase did. On the campaign trail, their positions were similar, and both Obama and Clinton have criticized the court's sharply conservative turn.
Would the court suit Clinton?
The bookish, even monastic life of a Supreme Court justice might not appeal to someone like Clinton, who has thrived on the jousting and public spotlight of politics. She might chafe at being unable to pursue her passion of achieving universal health care. And unlike Chase and Warren, she might have to settle for an associate justice slot; Chief Justice John Roberts is 53, so it is likely to be the Roberts Court ? not the Clinton Court ? for years to come.
Even so, nearly all the major debates in the USA ? issues of equality, privacy, presidential power ? eventually make their way to the Supreme Court. She could make a lasting difference, especially on a panel that often divides 5-4 on hot-button issues. At age 60, she might welcome a respite from the triathlon pace she has maintained for years.
When Warren was named to the Supreme Court, he had the same ambivalence that Clinton might feel about leaving politics. But at a farewell lunch in Sacramento before he headed to Washington, Warren spoke these words that could resonate with her: "I am glad to be going to the Supreme Court because now I can help the less fortunate, the people in our society who suffer, the disadvantaged."
Tony Mauro, Supreme Court correspondent for Legal Times and American Lawyer Media, is a member of USA TODAY's board of contributors. Opinion Piece
