First, Hillary would vote with progressives close to 100%. Second, Hillary adds clout on the Court for the progressive viewpoint. Third, Hillary has the skill, as Justice Stevens does, to sometimes persuade that extra justice to vote with the court liberals, and has the skill to to formulate legal opinions in a way that gets that 5th vote. The court has been moving even further to the right and it will take a powerful mind with legal and political creativity to prevent a wholesale legal calamity with the current court. Things are bad enough now on the court. The right nominee would be a strong force voting with the liberals and a smart tactician, as Stevens is, getting the 5th vote. That is a hard profile to fit, and Hillary fits it perfectly.
I don't recall hearing Hillary being mentioned for the job. Is she on the short list? On any list?
Hillary has not been mentioned by anyone within the WH. We don't know if she is on any lists. Even if she was, the WH would ever mention it because even a mention would set off a media circus. The WH did state today she was not under consideration but the denials have been weak so far. Some people privately like the idea. Even Republican Senator Hatch said he liked it. The reason I wrote the column was to make the case as persuasively as possible, elevate the idea with as many people as possible, and when the column runs in The Hill newspaper Tuesday it will be widely seen by Congress and White House staff.
That surprises me about Sen. Hatch. Did he actually voice approval publicly? And what about the traditional Hillary backlash, just waiting in the wings? Obama might fear the hint of a backlash and that could be enough. He always seems so quick to compromise, this idea seems rather "out there" for him.
Senator Hatch knows Hillary Clinton well from her days in the Senate and there is a general tendency to look favorably on Senators and former Senators in confirmation. I would not expect any major conservative attack or filibuster against Hillary. Most Republicans will vote against her but almost certainly not filibuster because she has great credibility and stature.
The mistake Obama could make, based on his history, is to pick a nominee who is more conservative than Hillary to avoid a confirmation battle which could well happen anyway. Hillary is probably the most liberal possible nominee who is the most painlessly confirmable. Other possible nominees who are as liberal as Hillary but without her stature and clout and history in the Senate are the names that will create the strongest opposition and Obama will almost certainly not pick one of them for that reason. I would flat out predict that if Hillary is not chosen the final nominee would be (very sadly) more conservative than she is.
There are those who suggest that Obama look beyond the narrow confines of the Ivy League for his next nomination. What would you say to that?
In principle, I think Obama should cast the net wide and I think he generally places far too much elitist faith in credentials, and has some elitist tendencies himself. In the case of replacing Stevens, Ivy League or not is not a major factor in my view. The major factor is finding a very heavyweight justice with stature and clout to fill the unique role that Stevens fills, as a shadow Chief Justice for the liberal justices. Legal credentials must be strong, but in the case of replacing Stevens, clout and stature and mega-political skill are essential as well, which is what makes this appointment so urgently important and hard to fill.
Why should our readers take your column seriously? What special expertise do you bring at this critical and historic juncture?
I have worked for senior Senators such as Birch Bayh, one of the leaders on constitutional issues, and Lloyd Bentsen, later Vice Presidential nominee and Treasury Secretary. I worked for the House Democratic leadership, have a law degree from Catholic University and a Masters of Law as well from the London School of Economics. Though people shouldn't place much faith in my credentials any more than anyone else's. They should read what I write and if makes sense, great, and if not, that's great too, that's what makes America great.
Sounds good to me. Anything you'd like to add, Brent?
Only thing I would add is to emphasize the urgency that the President get this appointment right. The court has been moving dangerously far to the right with a Chief Justice who has already violated his confirmation promise to respect precedent. He would rather move the court further to the right than respect the precedents of the court. Justice Stevens is unique as the intellectual leader of the liberal wing but also as a shadow chief justice who did for the liberals on the court what Ted Kennedy did in the Senate, find creatives ways to reach majority support for progressive positions.
It would be a disaster for the President to be so worried about Senate Republicans that he chooses a justice more conservative than Stevens. It would be equally disastrous to choose a justice who lacks the stature and clout to move and shape the court. Legal substance and clout are equally important. Hillary Clinton, in my view, meets the legal substance test and the political savvy and clout tests. There may be others, but the President must think big, not small, and act courageously, not fearfully which Democrats have too often done.
I highly recommend your article, Hillary for the court. Regardless of one's politics, it's thought-provoking and worthwhile reading. Thanks so much for talking with me. It was a pleasure.