Toobin Predicts Obama as Hillary's Supreme Court Nominee

In conversation with Charlie Rose, Jeffrey Toobin predicts that if elected Hillary will nominate Barack Obama to replace Justice Stevens. His rationale for Obama was as follows: former editor of Harvard Law Review, U Chicago con law professor, African-American, would be the first Senator to serve on the Court in a long time – not impossible to imagine. Let’s not get ahead of ourselves, however, since in my view Obama still has a decent shot to win the nomination – despite the media as of late anointing Hillary as unbeatable. Even if Hillary does win, might Obama not be a plausible VP candidate?

More substantively, Toobin points out as the Court’s new swing justice, Anthony Kennedy is more powerful than Sandra Day O’Connor ever was. In the last term’s twenty-four opinions Kennedy was in the majority in every one. Kennedy’s decisive influence is at times welcome – as in Hamden and prior Guantanamo cases, where Kennedy has rejected administration claims of executive privilege – and at other times unwelcome – as in Kennedy’s absurdly paternalistic opinion upholding the partial-birth abortion ban in Gonzales v. Carhart. If you want to understand the future of the Court, watch Kennedy…

In discussing Clarence Thomas, Toobin reaffirmed the emerging consensus that Thomas is by far the most conservative member of the Court (much more so than Scalia). Though Toobin did not engage whether Thomas in fact believes stare decisis to be a bankrupt doctrine, he did argue that Thomas regards “large parts of the New Deal as unconstitutional,” inasmuch as they expanded executive power beyond the limits prescribed in the Constitution. One hopes Justice Thomas will eventually be more outspoken about his judicial philosophy. Regrettably, both in his new autobiography and in appearances to promote the book Thomas focuses exclusively on episodes from his life story, giving short shrift to legal matters.

As a final noteworthy fact, Toobin noted that this Court is unique in that each of the justices had served as judges prior to being appointed to the Supreme Court. Evidently this uniformity is rare in history; for example, despite a number of highly respected legal thinkers (Frankfurter, Brennan, Douglas, Black), the Warren Court that ruled on Brown v. Board of Education included not a single justice who had been a judge prior to acceding to the Court. Is there some value to having Supreme Court justices with non-judicial backgrounds? This would be an interesting question for students of American legal history to pursue.