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Justice Clarence Thomas seems bored. Why doesn't he run for president in 2012?

Thomas's presidential platform would have broad appeal, especially among Republican primary voters. His libertarian leanings are reflected in his judicial opinions, such as his questioning of the federal government's regulatory authority under the commerce clause. And a bonus for Ayn Rand fans: Thomas traditionally makes his law clerks watch "The Fountainhead" after they arrive in chambers.

Would it be insane for Thomas to leave a lifetime appointment to run for president?

Well, he is a judge, so let's talk precedent. If elected, Thomas would not be the first person to serve as both president and justice: William Howard Taft was president from 1909 to 1913, then chief justice from 1921 to 1930. And Thomas wouldn't even be the first to attempt this in the reverse order: Charles Evans Hughes, appointed to the court in 1910, resigned in 1916 to run as the Republican nominee for president. He lost to Woodrow Wilson by a mere 23 electoral votes.

Lawyers tend to be risk-averse, so let's consider the downsides for Thomas if he leaves his post. The most obvious is giving Obama a third Supreme Court vacancy. But this problem should not be overestimated. Thus far, Obama has not nominated hard-core liberals to the court; his recent choice of Solicitor General Elena Kagan disappointed many on the left. Furthermore, Republican senators would subject Thomas's successor to a much higher degree of scrutiny than replacements for liberals David Souter and John Paul Stevens, possibly even filibustering a nominee they viewed as too left-wing. And, if he won in 2012, Thomas could appoint conservative justices of his choosing (possibly to fill a liberal's seat, such as Ruth Bader Ginsburg's).

What if Thomas left the high court, ran against Obama and lost? It wouldn't be the end of the world for him. Although Hughes failed in his presidential bid, things turned out well: He served in the executive branch as secretary of state under Warren Harding and eventually returned to the court, succeeding Taft as chief justice.

There's an entire world beyond 1 First Street just waiting to be explored. Thomas belongs out in that world -- not cooped up inside a marble palace, separated from the people by a bench, trapped underneath black robes.

Clarence Thomas in 2012!

david@abovethelaw.com

kashmir@abovethelaw.com

David Lat is the founding editor and Kashmir Hill is a co-editor of Above the Law, a legal blog.


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