Outlook: Supreme Court Justice Barack Obama?

Jeffrey Rosen
Law Professor, Editor, Author
Monday, February 22, 2010; 11:00 AM

Jeffrey Rosen, a law professor at George Washington University, legal affairs editor of the New Republic and the author of "The Supreme Court: The Personalities and Rivalries That Defined America," was online Monday, Feb. 22, at 11 a.m. ET to discuss his Outlook article titled "Supreme Court Justice Barack Obama?"


Jeffrey Rosen: Good morning, everyone. Jeff Rosen here. Thanks for joining and look forward to your questions.


Winston-Salem, N.C.: Professor Rosen,

Sandra Day O'Connor was a legislator (Ariz.). Earl Warren was a governor (Calif.). I tend to think that these Justices had a different perspective than their colleagues in ruling on cases because they better understood the real world impact of the Court's decisions. I was curious as to your perspective as to whether the Court would be better served by having more Justices with such experience?

Jeffrey Rosen: Thanks for this good question. I agree with you that former politicians often make the most effective justices, and the Court would be well served by having some more justices with political backgrounds today. It's striking that the Court that decided Brown v. Board of Education in 1954 had a majority of former politicians -- not only Governor Warren but former Senators, a former Attorney General, a chairman of the SEC -- and no former appellate judges. By contrast the Roberts Court has nine former appellate judges and no politicians. President Obama on the campaign trial said he would seek someone with political experience, like Earl Warren, and I think that would be a good perspective to bring to the Court.


Rochester, N.Y.: What is the purpose of a piece like the one you wrote? Obama is president now and is not likely to nominate himself for the Court.

So why would you speculate about something so far from the realm of reality? Isn't this kind of silliness exactly what The New Republic is mocked for?

Jeffrey Rosen: The piece is a playful thought experiment, and the topic was suggested by the editors of Outlook. Of course, I don't think it's likely to happen -- or even that it should. But I thought the hypothetical was worth entertaining, because the qualities that Obama might bring to the Court are ones he might think about in choosing future justices.


Cumberland, Md. : Is the case noted in your article the only one where a president has become a member of the Court?

Jeffrey Rosen: Yes, William Howard Taft is the only former president who has gone on to the Supreme Court. Taft, like Obama, also taught constitutional law (at Yale). In addition to Taft and Obama, two other constitutional law professors have served as president: Woodrow Wilson and Bill Clinton.


washingtonpost.com: Supreme Court Justice Barack Obama? (Post, Feb. 21)


Fairport, N.Y.: I always thought that Obama's problem was that he seemed too much like a judge and now you've spelled it out. Why do people hate judges so much? Are there any judges the American people would like to have a beer with?

Jeffrey Rosen: I'm not sure it's true that Americans hate judges so much -- the Supreme Court's approval rating is generally higher than the president and Congress. Part of this may reflect the fact that judges, unlike Presidents, Representatives and Senators, are mysterious -- they wear black robes, generally don't appear on TV and as a result are able to sustain a sense of impersonal authority. In other words, it's precisely because people don't imagine having a beer with Supreme Court justices that they're more likely to respect them. But all that may be changing -- as the justices are beginning to appear on TV more, promoting books, writing memoirs, and chatting on talk shows. After reading Justice Thomas's memoir, I'm sure lots of Americans might want to have a beer with him -- by all accounts, he's a very friendly man who has a knack for connecting to people. But I'm not sure that's great for the long term legitimacy of the Court.


Washington, D.C.: Is there anything in the Constitution that would prohibit Obama from serving as a Supreme Court Justice and president at the same time? He probably couldn't win reelection that way, but if a vacancy occurred less than a year before his second term expires or a week before he leaves office otherwise, could he serve in the roles simultaneous? And what about congressional reps and senators?

Jeffrey Rosen: If Obama appointed himself to the Court, would be have to resign as president. He couldn't hold both jobs at the same time.


State College, Pa.: What an interesting article -- thanks for writing it. This idea never occurred to me, but I can see how Obama might be a better fit for the Supreme Court than the White House. Perhaps he wandered into politics by mistake. Would it really be that easy for him to get onto the Supreme Court?

Jeffrey Rosen: Thanks for the nice words. It certainly would be easy for Obama to nominate himself to the Court. Of course, confirmation battles are tough these days. Republicans would have to decide whether they'd rather run against Obama or Joe Biden in 2012! But Democrats have enough votes to get Obama through.


New York, N.Y.: In the unlikley scenario where there are two Supreme Court Justice vacancies at the same time, what would you think of a show of bipartianship by appointing both Bill Clinton and George W. Bush to the Supreme Court?

Jeffrey Rosen: There used to be a time when this sort of bipartisanship was conceivable. FDR, for example, choose to promote Harlan Fiske Stone, a Coolidge nominee, to Chief Justice in 1941 -- as a show of bipartisanship during the war. (Stone, a liberal, had also endeared himself to FDR with his support of the New Deal.) But nowadays, our judicial politics are so polarized that I couldn't imagine a Democrat appointing a former Republican president, or vice versa.


Miami, Fla.: To turn the question around: you say that Justice Thomas is the kind of guy people want to have a beer with...will Thomas ever run for president? He seems to have a lot in common with Obama, both are well-spoken black men with a lot of charisma.

Thomas 2012?

Jeffrey Rosen: In their excellent book Supreme Discomfort: The Divided Soul of Clarence Thomas, Kevin Merida and Michael A. Fletcher of the Washington Post report that Justice Thomas has another ambition: "I would l-o-o-ove to be the NFL commissioner."


Fairfax, Va.: When you propose that Obama might be a good Supreme Court justice, do you mean he would be good at what a Supreme Court justice is supposed to be, or he would be good at advancing his agenda?

Because correct me if I'm wrong, but the role of the Supreme Court is to determine the constitutionality of laws. When you list attributes such as "empathy" and "willingness to compromise," it seems like you are actually listing attributes that are the exact opposite of what a Supreme Court justice should have.

Jeffrey Rosen: Of course, the job of a justice is to determine the constitutionality of laws. But many Court observers and justices recognize that the most effective justices are able to compromise on occasion in order to build majorities for their constitutional views. Chief Justice John Roberts, for example, has lamented the fact that his colleagues sometimes behave more like law professors than members of a collegial Court, and has suggested that it's appropriate for justices to think about their institutional role -- and the legitimacy of the Court -- rather than simply trying to pursue a narrow ideological agenda. This kind of thinking requires a degree of empathy, pragmatism, political savvy, and so forth. That doesn't mean that justices should be politicians, only that they have to consider what Roberts called the "team dynamic."


Arlington, Va.: If you would name a politician to the Court, do you have any other selections from the current senators and governors? Bob Byrd is known for carrying a copy of the Constitution with him but he is now 92 and probably not interested.

Jeffrey Rosen: Among Senators, there are lots of possibilities. Russell Feingold, for a scholarly civil libertarian; Dianne Feinstein for a tough on crime New Democrat. And of course, you don't have to be a lawyer to be a justice: based on his performance in the last Supreme Court confirmation hearing, Al Franken might be an interesting pick, too!


Boulder, Colo.: I think this is a brilliant idea. I also believe Hillary Clinton would be very well suited for the job in 2012, especially with the added experience of her current post. So, are you saying by implication that you think Obama is vulnerable for re-election to the White House?

Jeffrey Rosen: As I said, the scenario wasn't my idea; it came from the editors of Outlook. Personally, I think Obama is doing a fine job as president and expect him to be reelected.


Rockville, Md.: What was the possible point behind the article? It was just the sort of navel-gazing that you find over at Slate- making up stuff just to start up a conversation. How about this for a talking point: no president has ever politicized the Supreme Court as much as Obama has in the short time that he has been president. No president has ever called out the SC during the SOTU, and no president has been so blatantly transparent in trying to pack the Court.

Jeffrey Rosen: It's not true that no president has called out the Supreme Court during the State of the Union: FDR did the same thing in his own State of the Union address in January, 1937. Here is what FDR said: "The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. the process of our democracy must not be imperiled by the denial of essential powers of free government." And of course, FDR, unlike Obama, actually tried to pack the Court by changing the number of justices, but his court-packing plan failed.


Frederick, Md.: Is it because we hate to see a smart President?... Would you have suggested Bush?

Jeffrey Rosen: Not all smart presidents would make good Supreme Court justices -- Bill Clinton, for example, could never flourish in the monastic isolation of the Court. And it's also true that the three other former constitutional law professors (Clinton, Taft, and Wilson) weren't entirely successful presidents. Maybe this gets back to the idea that a pragmatic temperament is more important than constitutional brilliance in determining a former professor's success or failure as president. I hope that Obama, in the end, will be more of a pragmatic leader than a detached academic -- or else, like Clinton, Taft, and Wilson, he may not fully achieve his potential.


Harrisburg, Pa.: Do you believe the office of president presents special insights into serving on the Supreme Court?

Jeffrey Rosen: From Obama's perspective, after courting Joe Lieberman, courting Anthony Kennedy would be a piece of cake! More generally, although I wrote the article in a playful spirit, it reminded me of how much former politicians can bring to the Court. So whether Obama nominates himself or someone else for the next slot, I hope he'll consider people with a political background.

Thanks to all for a good conversation!


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