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Legal Commentary

: Balkinization

Hillary on the Supreme Court?

By Jack M. Balkin

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James Andrew Miller argues in the Washington Post that Barack Obama should promise to nominate Hillary Clinton for the next Supreme Court vacancy. It's unlikely to happen, although it's not unprecedented.

Hillary Clinton was born in October of 1947. She will be 61 years old when Obama takes office, and probably 62 by the time she would assume duties on the Supreme Court. Presidents want their Supreme Court nominees to stay on the bench a long time. 61 is just over the line. Ruth Bader Ginsburg was the last Justice in recent memory appointed at the age of 60. John Roberts was appointed at age 50, Samuel Alito at age 55, Steven Breyer at 56, Clarence Thomas at 43, David Souter at 51, Anthony Kennedy at 52, and Antonin Scalia at 50.

The idea of kicking someone upstairs to become a Supreme Court Justice, however, is not unprecedented. Woodrow Wilson appointed his irascible Attorney General, James McReynolds, to the Supreme Court, where he became one of the conservative Four Horsemen. More to the point, Abraham Lincoln nominated Salmon P. Chase to be Chief Justice in 1864. Lincoln beat Chase for the 1860 Republican nomination; Chase had served as his Treasury Secretary and sought to displace Lincoln for the nomination in 1864.

If Obama has something like this on his mind, however, he is unlikely to announce it publicly during the middle of a Presidential campaign. Telling the Republicans that he plans to nominate Hillary Clinton to the Supreme Court would be like waiving a red flag in front of a bull. It would make particularly concrete to the conservative base -- who are otherwise wary about John McCain but who are very concerned about controlling the judiciary-- why they needed to defeat Obama in the fall.

Full post as published by Balkinization on May 21, 2008 (boomark / email).