Tuesday, December 18, 2007

Hillary's Bill Problem

Douglas Kmiec (the one time dean of my law school) has this Wall Street Journal op-ed talking about what Hillary might do with Bill Clinton.
Hillary Clinton's commanding lead in the polls has diminished, and with Oprah Winfrey stumping for Barack Obama, she's called increasingly on the "star power" of husband Bill. But the ubiquitous presence of the former president on the campaign prompts a question: What will Hillary do with Bill if she is elected?

Of course, one might say Hillary has been wondering what to do with Bill for quite some time. But Mr. Clinton's prominent role in his wife's campaign--whether going head to head with Oprah for airtime or defending Hillary from "swift-boat-like attacks" from rival Democrats--has renewed the question: What exactly will he be doing on Jan. 21, 2009?

The issue of Mr. Clinton's potential role has a serious side for Democrats already concerned about her persistently high negatives. The notion that Mr. Clinton will be a "shadow president," effectively circumventing the constitutional limitations on presidential service, presents a campaign opportunity for the GOP.
So if neither a Senate nor executive position will do, what does work? While it's probably not something the Hillary campaign would want us to contemplate, we should remember that there are three branches of government, and that it is widely anticipated that there will be one or more vacancies on the Supreme Court during the next presidential term.
Kmiec goes on to talk about the possibility of Bill Clinton on the Supreme Court. This is not a new scenario, Bill Clinton on the Court. This article from the Village Voice came out over two and half years ago. My reaction then included these thoughts:
Justices are called upon to decide cases dealing with some arcane subjects of law and their training and experience to this point in the careers has led them to the point where they can do that research and scholarly work necessary to make those decisions. Former President Clinton--well he has spent most of his adult life in politics, not devoted to the study of law. This is not to say that I don't think Clinton is smart enough for the job, I do believe he is, but his training is not near the level it should be for being a Supreme Court Justice.

Third, the presence of Clinton on the Court would politicize the Court too much. I am not necessarily talking about cases involving political issues, such as abortion or privacy rights. Rather I am talking about the appointment of a person whose primary effort in recent decades has been political in nature. The Court was established as a check on what it refers to as the political branches, with such a political figure in its midst, will the Court legitimately be able to claim the mantle as an apolitical body.

Fourth, like it or not, the Supreme Court works largely in private, behind closed doors because as an institution, the Court believes the focus should be on the opinions and decisions it hands down in cases, not on the mechanics of its operation. By nature and temprament, the Justices, for the most part, shun the spotlight outside of legal circles. Clinton, by nature, is a person who craves the spotlight, enjoys its glare and welcomes the attention. I am not sure how that would play among the other members of the Court. Perhaps some light would be shed on the Court's workings, but I am not convinced that such exposure would be good for the Court.
I still think this is largely true, particularly the politization of the Court angle. Even though I don't know it for a fact, I am pretty sure that the GOP would be able to hold the line on a filibuster of Bill Clinton's appointment to the Court and would likely get a fair number of Democrats to cross the aisle to support a filibuster. Politically, the move can't happen.

Still, there is the question of Bill's role in a Hillary White House. In 1992, they declared that America was getting two presidents for the price of one and that concept did not fly so well. What will Bill do on January 21, 2009--assuming his wife is elected, a proposition far from certain right now? There are two possible avenues.

First, Bill Clinton could have no role in a Hillary Clinton Administration. However, the perception will be there that he is playing too big a role, particularly if her actions are like his. The chatter will always be there, below the surface and quite frankly, that is not a good think for Hillary.

Second, Bill Clinton could have a big public, though relatively non-controversial role in the White House. This would be a symbolic role, not unlike what most First Ladies do, working on a generally wholesome topic with as much positive publicity as possible. This would keep Bill busy, safely in a controlled limelight.

What absolutely cannot happen is for Bill Clinton to have a major policy role, a la Hillary Clinton and Clintoncare. The public is not likely to stand for it and Hillary would be a one term president.

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