Thinly sourced, but good enough for a post. Yes, needless to say, Obama isn’t going to offer this as a campaign promise; he wants to make the Republican base go to sleep for the election, not wake it up. But let me offer a radical suggestion: Would it be so terrible if he did nominate her? Remember, the salient question isn’t whether she’d be terrible on the Court. Of course she would, but we’re guaranteed a terrible justice once Obama’s elected. The question is, would she be more terrible than, say, Ruth Bader Ginsburg or John Paul Stevens (the two justices most likely to retire) or even David Souter. I’m not convinced, and the great virtue of putting her on the Court is that it would remove her from politics, something both Obama and the right could rejoice in. Tom Maguire noted last month that she comes with a lot of legal baggage for a potential nominee, but the Democrats will have enough of a Senate majority to shrug that off. So what exactly is the great argument against Her Majesty being put on the Court? Maybe this — that, once freed of political pressures and blessed with life tenure, she’ll finally be free to indulge her socialist tendencies instead of tossing out pragmatist chum periodically about the threat from Iran or how much she enjoyed going hunting as a girl. That’s a worry, but go back to the main question. What is it that makes Hillary more of a threat than the thousand other left-wing judges and academics out there, like say Harold Koh, who’d be hardline Warren/Brennan liberals on the Court? Is Anthony Kennedy going to fall under her sway because she’s a political celebrity? If anything, I’d think the current justices would want to put her in her place as the junior justice by not following her lead. So you take the risk, and as a reward you don’t have to worry about President Hillary in 2016. Plus, a bruising confirmation fight over her — which we’re bound to lose — would be a glorious way of catalyzing the base after a dispiriting election. Tell me why I’m wrong.
Update: An afterthought. If you believe that Hillary’s guiding star is the accumulation of her own politicial power, then she wouldn’t tack left once installed on the Court — she’d tack right, to take advatange of the fact that the oldest of the five conservative justices is merely 72 and quite likely to outlast even two terms of Obama. If you want to write majority opinions and craft American constitutional law, you have two options: Either persuade Anthony Kennedy to join your side (admittedly not difficult) or join the majority in exchange for being allowed to write the opinion in cases of great import to you. I can imagine a good Machiavellian like Hillary making that latter bargain.
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