By now it is clear that Merrick Garland, President Obama’s nomination to fill the Supreme Court vacancy left by Antonin Scalia’s death, is not going anywhere. But if Hillary Clinton wins the White House, Senate Republicans may make a desperate about-face during the lame-duck session to lock in the moderate Garland before the arrival of Clinton and a possibly more left-leaning candidate. By then, however, it will be too late.
Sorry, Judge Garland, but what Clinton should do if she wins is make clear that her choice will be none other than Barack Obama, a former professor of constitutional law, and the perfect choice to assume his place on the nation’s highest court. Naturally there will be a lot of gnashing of Republican teeth, but this scenario assumes that the Democrats will regain the Senate in the wake of an electoral debacle by Donald Trump
There are four good reasons why the second Clinton should follow this obvious course of action. One, Obama is undoubtedly qualified. Having served as a senator and as president, he has wide experience to bring to the court — experience not available to your usual run-of-the-mill federal judge. We haven’t had a Supreme Court justice with something other than lawyering and judging in their background since Sandra Day O’Connor stepped down.
Two, Clinton owes him one. After defeating her in Democratic primaries, Obama turned around and graciously offered her the State Department, which in due course filled in vital foreign policy experience that had been missing from her resume in 2008.
Three, there is good precedent for such an appointment. Ninety-five years ago, William Howard Taft became our 10th chief justice of the Supreme Court after having served as our 27th president. True, Taft had to wait eight years between jobs because Woodrow Wilson succeeded him as president, and Wilson was going to be nominating a Republican. Taft had to wait until Warren Harding was in the White House to be chosen for the court.
And, four, Obama will need a job. Most former presidents hang about not really knowing what to do with themselves after the presidency, but Obama is too young to just sit around and too talented to be let go to waste. Some say Jimmy Carter became a better former president than president, with his Carter Center and do-gooding projects. Bill Clinton has his foundation, and will be around to advise and/or annoy his wife as she launches her own presidency. The Two Bushes simply dropped out of sight. Some thought that John Kennedy, had he lived, might end up as president of Harvard, which also wouldn’t be a bad job for Obama.
But our present president could better serve the nation as a Supreme Court justice after he leaves office, taking his place beside the four other liberal justices. Or counting another way, beside the other five Harvard Law School graduates on the court. And given his lack of interest in retail politicking, he might even enjoy it more than being president.
All this rests on the assumption that Clinton wins in November. What if Trump wins? Well, then all bets are off, and not just those concerning the Supreme Court.
H.D.S. Greenway is a former editorial page editor of the Globe and the author of “Foreign Correspondent: A Memoir.”