“The Judicial Nomination Process is a complete mess.” -Josh Lyman (The West Wing S5 E16 “Eppur Si Muove”)
By John O. Sullivan
Regardless of what you think of President Obama, it is impossible to refute that his presidency will leave a long-lasting legacy with America’s political life. With his second and final term coming to an end, it raises questions that are an inevitable part of the American zeitgeist once every four or eight years: “What will the president do now?” “How does one go from being the most important person in the free world to being just another citizen?” In a Democracy with egalitarianism and designed redundancy at its core, these questions consume our minds and airtime as presidents prepare to leave office. History, and even recent history, has shown us that there are a wide range of options for former Presidents. Presidents Carter and Clinton didn’t resign to a life of croquet and shuffleboard, they maintained a significantly reduced presence in the public eye through their work with Non-Governmental Organizations, specifically Habitat for Humanity and The Clinton Foundation, respectively. However, on the other end of the spectrum, you have Presidents such as Washington and W. Bush, who retired to “sit under my own vine and fig tree/ A moment alone in the shade/ At home in this nation we’ve made,” (Hamilton, “One Last Time”) completely removed from public discourse on their respective plantation and/or ranch.
It is difficult to believe that President Obama will follow the lead of our more reclusive former presidents and totally retreat from public life. In fact, it seems probable that President Obama will stay engaged in the national dialogue somehow for some time to come. So if Presidents-turned-hermits Washington and Bush aren’t good historical models for a post-presidency Obama, then who?
Enter our 27th president, President William Howard Taft.
At first glance, it wouldn’t seem like the President most (though falsely) remembered for getting stuck in his own bath tub would have anything in common with the President who’s
“Summer Nights With Michelle” “Summer Playlist: Night” song selections includes Beyoncé and John Coltrane. But, upon closer examination, the comparisons practically leap off the page. President Taft was just 56 when he left office, President Obama is 55 now, with plenty of life left in him. Both were law students, Taft attending Cincinnati Law School, Obama himself a graduate of Harvard Law. President Taft taught Legal History at Yale after leaving public service, President Obama taught Constitutional Law at the University of Chicago Law School before entering public service. So maybe President Taft could be a good role model for President Obama.
William Howard Taft, of course, is the only person ever to have served as both President of the United States and Chief Justice of the United States Supreme Court.
But wait, before you spring to defend the separation of powers, it’s not actually that crazy. Taft was totally qualified and a natural choice. He was the son of a U.S. Attorney General, attended Yale and Cincinnati Law School, he was a private lawyer turned judge, served as Solicitor General of the United States, then later as federal judge, and as President had some background in what it took to put a nominee on the court. In many ways it seemed more as if the presidency had been merely a detour en route to Taft’s fated destination, the United States Supreme Court.
The comparisons between President Obama and President Taft don’t end at educational pursuits. In 1912, William Howard Taft was nominated for the Presidency by then rising-star and future president Warren Harding. In 2008, Hillary Clinton essentially nominated Barack Obama by interrupting the roll call, withdrawing her own name and moving to nominate then-Senator Obama by acclamation, which he received.
During Taft’s presidency, his party became deeply divided, eventually leading to former President (Teddy) Roosevelt’s (in)famous third party campaign for a third term, leading to the demise of Taft. Today, while not facing the same prospects personally, President Obama’s party is facing similar divisions between a traditional establishment and a liberal wing. In Taft’s race and its aftermath, the now-risen star and nominator, ever-loyal Warren Harding stood by President Taft. Today, Secretary Clinton is standing firmly behind President Obama and his legislative legacy, despite her conflicted primary run and President Obama’s polarizing effect.
Surely leaving the presidency creates a good deal of free time for those who held the office. So imagine this, in November, Team-Obama member Hillary Rodham Clinton is elected president, and Obama leaves the White House gracefully to take a well deserved vacation and then assume his new role as a Professor of Law at Harvard, not unlike Taft who returned to his alma mater, Yale, to teach law after leaving the presidency. As the years pass, a seat opens up on the Supreme Court. Former President Obama has stayed in the public eye through legal writings, lectures, and editorials as a law professor, and with a Senate majority in hand, President H. Clinton nominates former President Barack Obama to the Supreme Court, as Team-Taft member Warren Harding once did for Taft. Enter Justice Obama.
“Toby, wake up. Wake up, time to go to school.”-Rep. Andrea Wyatt (S4 E8 “Process Stories,” The West Wing)
Of course this scenario is incredibly, phenomenally, fantastically, unlikely. Firstly, President Obama isn’t nearly so qualified for the Supreme Court as was President Taft. Secondly and more importantly, the political environment today would be far less receptive to such an occurrence. In Harding’s day, Taft was able to be confirmed by the Senate 61-4 (even though his party, the Republicans, only had 59 seats at the time). It is hard to imagine, in the current age of partisan battles and congressional gridlock, that any Republican Senator would vote to confirm President Obama as a Supreme Court Justice. When a fairly moderate, uncontroversial, and old (read: low risk), candidate such as Merrick Garland can’t even get the time of day from Senate Republicans; an Obama confirmation is a flight of fancy at best. I believe there are a large number of Republicans in Congress who would rather eat their own children than vote for Obama to be on the Supreme Court. This is understandable, of course. President Obama has, at times, been a highly polarizing figure. Worse, he has almost no body of legal writings and opinions such as that which lower court judges build up over their careers to establish their credentials.
And yet, even if President Obama had legal credentials even more impressive than Taft’s, it still could never be. For more than 7 months, a seat has sat empty on the Supreme Court. We have already seen that empty seat impact important cases. The founders wanted the Supreme Court to be above politics. Hamilton himself wrote in Federalist #78 that Supreme Court appointments must, by necessity, be lifetime appointments, to separate themselves from the will and force of the legislative and executive branches: “Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence” The insistence of our political leaders on partisan political football with the Supreme Court has drug the court through the same mud with which they themselves are covered and killed that necessary independence. So maybe President Obama wouldn’t have ever been nominated for the Supreme Court with his resume, even if he had lived in Taft’s era. But surely there is no chance of it now.
So maybe Taft doesn’t actually hold a post-White House road map for President Obama. And while I don’t think President Obama will ever be nominated to our nation’s highest court, maybe we should seriously reconsider the manner in which we treat that institution.