C’mon, bro. There’s no way he’s turning down that Netflix coin for a gig as lame as shaping the course of American law for the next 25 years.
Biden asked here in Washington, Iowa, if he would ever nominate former President Obama to serve on the Supreme Court. “If he’d take it, yes,” Biden says.
— Ken Thomas (@KThomasDC) December 28, 2019
Floating Obama as a potential SCOTUS nominee has become a minor tradition among Democratic presidential frontrunners, albeit one that’s destined to be short-lived given O’s age. (He’s 58 now, already old-ish for a Supreme Court nominee in modern America.) Hillary was also asked during the 2016 primaries whether she’d consider nominating him and replied, “Wow. What a great idea. Nobody has ever suggested that to me. Wow.” Whether she was serious about considering him, or whether Biden is serious, is unclear. There’s no downside, after all, to assuring a crowd of Obama-loving Democrats that you’ll find a spot at the highest levels of government for their favorite politician.
Especially if, like Clinton and Biden, your primary chances depend heavily on ingratiating yourself to Obama’s base of black voters.
Would O even consider the job? He was asked about it in 2014 as a post-presidential career option and sounded disinclined:
As Marine One thundered overhead, about to land on the White House lawn and take Obama to a series of political fund-raisers, I asked him if, like William Howard Taft, he entertained thoughts of serving as a judge later in his career. “When I got out of law school, I chose not to clerk,” he said. “Partly because I was an older student, but partly because I don’t think I have the temperament to sit in a chamber and write opinions.” But he sounded tempted by the idea.
“I love the law, intellectually,” Obama went on. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”
As a member of the Court he’d have to forgo basically all forms of political activism and largely avoid the public spotlight, not an easy adjustment for a globally known mega-celebrity. He’d also leave a lot — a lot — of money potentially on the table by having to pass on lucrative future business opportunities a la Netflix. There are hundreds of left-leaning judges on the Democratic bench who’d vote the same way Obama would on virtually every issue if they, rather than he, landed a spot on the Court. So why wouldn’t he pass, continue to rake in the dough, pontificate on whatever he wants to pontificate about when the mood strikes, and trust that the Court is in good hands with whoever ended up being nominated instead of him?
He wouldn’t take the job. But it’s amusing, if not surprising, that Biden is still so eager to kiss up to him despite the fact that the affection clearly isn’t fully reciprocated:
It’s like an abusive relationship. Joe just responds to every indignity with love. https://t.co/7EEx4Qwpt4
— Seth Mandel (@SethAMandel) December 30, 2019
A week ago Obama was supposedly talking up Elizabeth Warren to Democratic donors. At other points in the campaign he’s reportedly complained behind closed doors that Biden has no “bond” with his audiences. But from Biden’s perspective, who cares? So long as he’s still the runaway favorite among black Democrats, his relationship with O is good enough. All he needs to do is get the race to where it’s one-on-one between him and Bernie Sanders and then Obama will swoop in and endorse his former VP, not because he’s enthusiastic about Joe but because Biden will be the last best hope of neoliberalism against the DSA crowd at that point.
A fascinating thought experiment about nominating O to the Court: Could he get confirmed? When Hillary was asked about this three years ago she claimed it would take a Democratic Senate to get him through, although that was at a moment when the filibuster for SCOTUS nominees hadn’t been nuked yet. Unquestionably, if confirmation still required 60 votes, he’d be DOA in a Republican Senate. In a post-Neil-Gorsuch world, with just 51 votes needed to confirm, his odds have improved considerably. An Obama confirmation fight would be a test of wills between a GOP base that despises O and would want him stopped at all costs and the centrist GOP cluster in the Senate that would be inclined to confirm Obama largely as a matter of comity and respect for an ex-president. What would the usual suspects — Collins, Murkowski, Romney, Gardner, etc — do? If they were looking for “nonpartisan” reasons to vote no, they might cite the fact that the policies O championed as president are still sufficiently influential in government that he’d have to recuse himself from an unusually high number of cases. (He could never participate in an ObamaCare case, could he?) Or, more aggressively, they might point to something like DACA or the highly dubious unauthorized intervention in Libya as evidence that the man’s constitutional judgment simply can’t be trusted on the Court.
But I don’t know. A guy like Romney likes to imagine himself as more of a statesman than the current era of partisanship red in tooth and claw normally allows. Would he vote to confirm his 2012 opponent to make a statement on that point, or would rejecting O be some sort of hyper-litmus test a la the upcoming impeachment vote that GOP senators simply can’t fail lest it effectively end their political careers? Any Republican who voted yes would be blamed by the base for every bad decision Justice Obama joined for the next quarter century, and there’d be plenty of bad ones. I’d put his confirmation odds in a 53/47 Republican Senate at no better than, say, 40 percent. Which is probably reason enough for O to decline a nomination if offered. Why subject himself to that humiliation when he can enjoy a lavish retirement instead?