Next Stop, Supreme Court?

By James Andrew Miller
Wednesday, May 21, 2008

As the primary season nears a merciful end, the Clinton-Obama conflict is giving way to Obama-Clinton conjecture. Many in the Democratic Party support a so-called dream ticket of both, with Barack Obama at the top. They believe Hillary Clinton has earned the No. 2 spot through her feisty, never-say-die campaign, and they worry that her supporters will stay home in November if she isn't part of the ticket.

Opponents counter that in terms of the electoral vote, Clinton might not help carry any states that wouldn't already go for Obama. Moreover, the possibility of both Clintons ganging up on a President Obama could make life more difficult for him than anything the Republicans could ever put together.

But there is another way to foster party unity without forcing a political marriage.

It's likely that the next president will face at least one Supreme Court vacancy. Obama should promise Hillary Clinton, now, that if he wins in November, the vacancy will be hers, making her first on a list of one.

Obama and Clinton have wound up agreeing on nearly every major issue during the campaign; at the end of the day, they share many orthodoxies. Unless the Supreme Court were to get mired in minuscule details of what constitutes universal health care, Obama could assume that he'd be pleased with most Clinton votes, certainly on major issues such as abortion.

Obama could also appreciate Clinton's undeniably keen mind. Even Clinton detractors have noted her remarkable mental skills; she would be equal to any legal or intellectual challenge she would face as a justice. The fact that she hasn't served on a bench before would be inconsequential, considering her experience in law and in government.

If Obama were to promise Clinton the first court vacancy, her supporters would actually have a stronger incentive to support him for president than they would if she were going to be vice president. Given the Supreme Court's delicate liberal-conservative balance, she would play a major role in charting the country's future; there is no guarantee that a Clinton vice presidency would achieve such importance.

For nearly a year and a half, Clinton has been fighting a bruising battle. Many appointees and officials from her husband's administration have turned their backs on her; she has lost the support of friends she had every reason to believe would stand by her. She has campaigned tirelessly only to discover that, according to polls, more than half the populace mistrusts her. Yes, she can still hope for 2012 or 2016, but why trust that she will be viewed differently next time around? (A recent CNN "quick poll" found that nearly 70 percent of respondents believed someone other than Clinton would be the first female president.)

Instead of subjecting herself to a long wait and another possible defeat, she could don one of those roomy black robes, make a potentially ineradicable impact on the course of the republic -- and never again have to worry about being liked.

Senate confirmation would be all but certain, even putting aside the gains that Democrats are likely to make in November. Clinton could be confirmed in the current alignment. Democrats would want to support their new president, and those who like Clinton would vote for her. Members of either party who aren't fans might also be happy enough about her leaving the Senate to vote to confirm her.

Obama could also trust that Clinton would maintain her image as a fighter after arriving at the court. Her tenacity has never been more apparent. President Obama would engender praise (at least from Democrats) at the prospect of Hillary going toe to toe with Clarence Thomas, Antonin Scalia and Samuel Alito. Clinton's gumption and determination might make her one of the most powerful forces ever on the court, particularly when it comes to swaying other justices when the court is closely divided.

Bill Clinton has set the family bar high in terms of overcoming setbacks. It's not inconceivable that Hillary could rise again and one day be elected president -- but it couldn't happen for at least four years. An Obama promise to nominate Clinton to the Supreme Court would more than go a long way toward forging the unity Democrats want and need for November. It would preserve Clinton's role as a dedicated public servant and guarantee her the role of a lifetime.

James Andrew Miller, who served as special assistant to Senate Majority Leader Howard H. Baker Jr., is the author of "Running in Place: Inside the Senate."

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