Monday, November 3, 2008

First, Obama Justice. Then, Justice Obama.

Remember back in December when the four of us endorsed Barack Obama to be the next president of the United States? And remember when he pulled off a huge upset to unseat Hillary Clinton as the heir apparent to the Democratic Party, and then ran an extraordinary presidential campaign, putting himself in position to win the presidency (which - barring a seismic shift in the current landscape - he will do about 24 hours from now)?

You do? Good. Now forget it. We're on to the next big thing.

As Open Bar has observed before, the Internet (ok, fine, the blogosphere (just puked in my mouth)) can be a cutthroat environment. Everyone wants to be first to report, predict, or develop something. Credibility comes from scooping others, or getting to the right result faster than anyone else. And so, confident in his victory tomorrow (JINX!) I am prepared to announce Barack Obama's next government job:

Chief Justice of the Supreme Court.

That's right. You heard it here first. Barack Obama will be the first black Chief Justice of the Supreme Court. Here's why:

1). When he leaves office, Obama will be the second youngest former president in modern history. He will not reach the age of retirement until about a decade after he leaves office, even if he serves two full terms.

2). At some point during his post-presidency years, it is reasonable to assume that a Democratic president will have the opportunity to appoint someone to the Supreme Court. That's a stretch of 20-30 years, and I doubt the Republicans are going on that kind of streak.

3). Obama would be an ideal candidate. Barring a Bush-style presidency (I doubt it), or a Clinton-style scandal (I really doubt it), I think Obama can expect to leave office as a well-respected, if not adored, president. This would make him an easy confirmation, especially if there is a five- to ten-year lag between his departure from office and his nomination to the Court (ex-president's tend to become more and more popular with the passage of time. Even Nixon got a decent tribute when he died).

4). Obama would be qualified to serve on the Supreme Court. As a constitutional law scholar, he would be at least as prepared to sit on the Court as some of his co-Justices (I'm looking at you, Justice Thomas).

5). The Chief Justice thing is a little bit more of a stretch, but I think it makes sense, given the respect accorded to former Presidents, that Obama would ascend to the Chief Justice's chair in the event of a vacancy. It also assumes that there will not be another black justice named to the Chief Justice position between now and . . . say, 2020, which is also a tad presumptive on my part.

There is some precedent for this. Obama would not be the first American to lead both the executive and judicial branches of the federal government. William Taft was the twenty-seventh President of the United States, and the tenth Chief Justice of the United States.

Anything can happen in the next eight years (shit, anything can happen in the next eight hours) that would preclude this from happening, but I think it is a real possibility. Obama is going to prove himself to be an intellectual president on the order of Clinton (who would almost certainly be talked about for a seat on the Court if he hadn't been disbarred), and his post-presidential years are not going to be spent lecturing to law students in Chicago. It's just not prestigious enough for a former president. Absent a return to the Senate (which I wouldn't rule out), or a Carter/Clinton-type bid for a Nobel Prize, bank on the Supreme Court for Justice Obama.


Open Bar said...

Wow. Nothing like boldness in a post. Love it. And this forward-looking idea from the guy who still can't get his head around Facebook. Counterintuitive? Hypocritical? Rovian? Who am I to decide?

But let's examine point 4:

"Obama would be qualified to serve on the Supreme Court. As a constitutional law scholar, he would be at least as prepared to sit on the Court as some of his co-Justices (I'm looking at you, Justice Thomas)."

While I understand there's a difference between heading the executive branch and the judicial, wouldn't the fact that he was President be, at least, an equally prominent qualification for Chief Justice?

Side Bar said...

I don't think so. Executive experience as the CEO of the largest bureaucracy in the nation, if not the world, really doesn't lend itself to the ministerial executive role played by the Chief Justice. The Chief Justice is not an "executive" position in any true sense of the word. He doesn't break ties or make unilateral decisions. He (or she) has some nominal duties reserved only for the Chief (most notably doling out the authorship of opinions when he is in the majority, and facilitating discussion of a particular case), but it's not a management job like being President.

Open Bar said...

So having been President is not a plus in a potential Supreme Court justice's column, huh? And the Chief Justice doesn't break ties? What if it's 4-4?

I wasn't suggesting that being an ex-President makes one a guarantee to become a Supreme Court justice, or even that it is necessarily a more valid qualification than having been a Consitutional law scholar. But if you were to compare Obama's current law resume -- which is impressive -- it isn't nearly as impressive as almost every other recent justice. (Fair point with Thomas, but that's just one justice.)

If you add that he was President to his prior resume, I think that makes a significant difference.

Beat that, Hoya.

ChuckJerry said...

Isn't John Roberts fairly young? Are you suggesting he would step down as Chief Justice to make way for Obama?

Side Bar said...

Chuck - fair point, but Roberts is six years older, so it is not crazy to think he would retire or otherwise cede his seat while Obama was still on the Court and thus could ascend to the Chief position.

Open Bar - also a fair point, being President does add to his resume. I thought you were suggesting that the executive experience as President was relevant to being Chief, and I just disagree with that piece of it. Also, as to the 4-4 tie, yes, in that case the Chief would break the tie, but that's true of every justice. (i.e., in any 4-4 scenario, the hold out justice breaks the tie). If there are only 8 justices on a 4-4 decision (e.g., someone recused themself becaus of a conflict), then the decision of the lower court stands, but without precedential effect (i.e., the tie stands).