Justice Obama? Hillary Clinton Can’t Be Serious

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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When asked at an Iowa town hall meeting whether she would consider appointing Barack Obama to the U.S. supreme court if she is elected president, she reportedly said “wow, what a great idea!” If you didn’t already have ample reasons to oppose Clinton’s candidacy, her declaring it a great idea to appointment Obama to the high court should be reason enough.

 Only one person has been appointed to the court after serving as president. William Howard Taft was appointed chief justice by President Warren Harding in 1921. He served with some distinction in that position for 8 years. But Taft’s appointment to the bench is hardly precedent for the appointment of Barack Obama. Prior to his election to the White House Taft served as U.S. solicitor general and as a judge on the U.S. court of appeals for the sixth circuit. Obama served as a community organizer and adjunct law faculty member along with brief stints in the Illinois legislature and the U.S. senate.

But lack of relevant experience is not the most important reason to question Clinton’s judgment in thinking it would be a great idea to appoint Obama to our nation’s highest court. During his over 7 years in the oval office, President Obama has demonstrated a disdain for the American ideal of constitutional government and a lack of respect for the supreme court.

Obama’s lack of respect for the court was demonstrated to the entire nation when he rebuked the justices (seated directly before him) for their decision in Citizens United v. Federal Election Commission. Several members of the court have boycotted the state of the union ever since.

His disdain for constitutional government, and in particular for the separation of powers, has been in evidence repeatedly. More than once the Obama administration effectively amended the Affordable Care Act by executive fiat, including a rule relating to mandatory contraception coverage found by the Supreme Court to violate religious freedom. A unanimous Supreme Court also ruled that Obama had infringed on the senate’s authority to advise and consent on appointments to the National Labor Relations Board by making “recess” appointments when, by its own rules, the senate was not in recess. Recently the supreme court agreed to consider whether the Obama administration’s blanket waiver of deportation proceedings against 4 million illegal immigrants is within his authority.

Even if the supreme court rules in Obama’s favor in the last case, his record before the high court will be only one for three – not very good for someone claiming to be an expert in constitutional law. But we see with regularity, including from supreme court opinions, that there are widely differing understandings of what the constitution requires. So perhaps the president honestly believes that he has been in full compliance with the letter and spirit of the constitution.

The problem with this generous view of Obama’s commitment to constitutionalism is that he seldom defends his actions as constitutional, except after the fact. Throughout his tenure his guiding principle has been to do whatever it takes to implement his agenda. He told us about his phone and his pen and has declared more than a few times that if congress won’t act, he will. Obama is not unusual among presidents in his efforts to expand executive power. What makes him unusual, and disqualifies him for the Supreme Count, is his forthright disdain for the constitutional limits on the powers of the president.

Hillary was probably just sucking up to Obama fans when she declared it a great idea to appoint Obama to the Supreme Court. But if she really meant it, that alone is reason to oppose her candidacy for president of our constitutional republic.