The Obama Court

February 15th, 2016

Most election cycles include moments of drama.  Occasionally events unfold unexpectedly that can turn an entire election.

Justice Antonin Scalia’s untimely death this weekend is such an event.

If you’ve never read a Scalia Supreme Court opinion, I urge you to do so. No one needs a law license to understand what Scalia is saying in these opinions and that’s how it should be in a nation “of the people, by the people, and for the people.”  When I was in law school, it didn’t take long for me to figure out by generation which Supreme Court justices had the greatest influence on the Court in their time.  I believe future generations will regard Scalia this way.

Since we’re now in the heat of the 2016 battle, no time is being wasted considering who should fill Scalia’s place on the Court.  Given that the very liberal Barack Obama will be appointing the replacement of the very conservative Scalia to a court that’s currently tipping in the balance with 5-4 decisions, it’s no wonder that Republicans are arguing for the next president to choose Scalia’s successor while Democrats contend that Obama must choose and that time is of the essence in confirming his choice.

One other little fact that isn’t talked about much is also in the mix.

Back in January (which seems a lifetime ago), a reporter asked Hillary Clinton what she thought of nominating Barack Obama to the Supreme Court if she gets that opportunity.  “I love that” she responded.

I’m guessing Obama might love that, too.

At 54-years-old, Barack Obama will leave the White House in the prime of life.  Presumably, he’ll follow the course of all his predecessors and write books, set up a library and possibly a foundation, and become rich beyond his wildest dreams.

One thing sets Obama apart from other former presidents, however, and that is this.  Obama fancies himself a constitutional scholar.  Some on the conservative side would strongly disagree with his claim noting, for example, the number of cases currently before the Court dealing with questions of Obama’s possible misinterpretation of the Constitution. Nevertheless, Obama no doubt believes he’s more than qualified to sit on the bench of the highest Court in the land.

There is also precedent for a former president becoming a Supreme Court justice.  Our twenty-seventh president, William Howard Taft, didn’t care much for the White House, but he loved his tenure as Chief Justice of the Supreme Court.

So here’s an interesting question.

Could Obama appoint himself to the Supreme Court?  Over the next few months as events unfold and if no one else is confirmed, could he go that route?  Alternatively, could he appoint a liberal and then land the first appointment of a Democrat president’s administration assuming that’s who wins the election.  Hillary already says she “loves” the idea.  Perhaps Bernie would, too. And if Obama could somehow accomplish this feat, could he wield more power than the average Supreme Court justice since he would personally be responsible for the appointment of one third of the Court?

If you’re not crazy about Obama the President, how do you feel about Obama the Supreme Court justice with a lifetime appointment?

Scalia’s death makes the next election of utmost importance if you’re a conservative.  Let’s face it, Republicans must win if there is any hope of maintaining at least a conservative lean to the Court.  Clearly, that’s not a guarantee.  Republican presidents are legendary for their penchant for accidently appointing liberals to the Supreme Court.

One thing is for sure though.  No Democrat is going to choose a conservative.

Before Scalia’s death, this election mattered to conservatives.  Now it matters even more.

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