Clinton's Potential Impact on the High Court

As Georgetown Law Professor Edward Lazarus recently noted, "To be sure, the emergence of Obama [and] Clinton … as the leading Democratic contenders is not directly attributable to the Warren Court and the constitutional revolution it spearheaded … But is it really possible to imagine an African-American [or] a woman [as leading presidential front-runners] without the achievements of that Court? I doubt it." Moreover, Clinton and Obama value the Warren Court's commitment to liberal jurisprudence as not only historical observers but as former practitioners and professors of law.

Clinton attended Yale Law School and served as an editor of the Yale Review of Law and Social Action. At the Yale Child Study Center, she studied the impact of the law on children, poverty, health care, and education policy. Later she called for instituting more legal measures to protect children from abusive households. She also offered legal services to child abuse victims at the Yale-New Haven Hospital, where underprivileged voters solicited her legal advice.

Following these legal stints in Connecticut, Clinton served as a staffer on the House Judiciary Committee and an attorney for the Children's Defense Fund. She was the first female partner at the Rose Law Firm and has been elected to the boards of several corporations, including Wal-Mart. She also served as a professor of law at the University of Arkansas, specializing in legal aid and corporate law.

This balance of experience in the public and private legal spheres suggests a breadth of insight into various interpretations of the Constitution. Clearly, Clinton has cast herself as a vigorous advocate on behalf of children's rights, but these experiences also suggest an understanding of the complexities of free markets and their sometimes positive impact on the American middle class.

Despite her background in law, Clinton did not seek a seat on the Senate Judiciary Committee, which decides the early fate of Supreme Court and all other federal judicial nominees before they reach the full Senate body for a vote. Also, while her interest in legal affairs dates back some decades—an interest that she says propelled her into public office—a thorough search of her campaign policy papers and Web site reveal no indication of her views on the future of the Supreme Court or her potential appointments to the bench.

However, Clinton observers can still point to her votes in the U.S. Senate on two Supreme Court nominees to explore her view of the Court. In 2005 and 2006, Clinton voted against President Bush's nominees to the Supreme Court whose records aligned them with the more conservative jurisprudence. On both occasions, she cited her ambivalence about John Roberts's and Samuel Alito's judicial records on cases involving civil liberties and federalism.

In a speech on the Senate floor and later in a press release, Clinton said, "I have an obligation to my constituents to make sure that I cast my vote for Chief Justice of the United States for someone I am convinced will be steadfast in protecting fundamental women's rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches. After the Judiciary Hearings, I believe the record on these matters has been left unclear."

In a similarly framed statement, she explained her vote against Bush's second nominee: "I believe the key to American progress has been the ever-expanding circle of freedom and opportunity. If you look at Judge Alito's statements and his record, it is clear that Judge Alito would narrow that circle while endangering our nation's fundamental system of checks and balances."

Clearly, from her own words and record, First Amendment concerns—as well as the rights of women and historically disenfranchised minorities—rank high among those key legal principles that could determine her nominees.

On specific issues, Dorf said he doesn't see any substantive differences between the voting records of Clinton and Obama while in the U.S. Senate that might foretell differences among potential judicial nominees by each candidate.

However, on the issue of abortion, The Daily Telegraph (UK) notes that Clinton has consistently supported the right to abortion, including late-term procedures that were struck down in the Court's last session, whereas Obama has voted in the Illinois State Senate "present"—rather than asserting yes or no—on several abortion law debates in the legislature.

According to Dorf, while the distinctions drawn between their respective policy positions are often small, their differing temperaments might serve as the best indicator of nominees they might tap: Clinton as the seasoned politician expected to tap predictable liberal legal minds, and Obama as a newcomer whose campaign rhetoric suggests a unifying pick—appealing enough to both sides of the political fence.

Dorf does not rule out that Clinton would consider appointing an "intellectual powerhouse." Clinton too, he reminds us, served as a professor of law and has established academic relationships from her time as First Lady and earlier. While Obama has more professorial experience as a Constitutional scholar, Dorf said, "There is no way to think that Clinton would not have the same goals."

As far as specific nominees are concerned, several legal experts, including John McGinnis, a professor of law at Northwestern University, suggest that Clinton might tap Obama, a constitutional scholar himself, if he ultimately is not on the ticket as a presidential or VP nominee this fall. "If Clinton is the nominee, there's one candidate she might consider if the convention is deadlocked, and she wins: Barack Obama, [would be] a strong liberal voice on the court."

In terms of Clinton's potential selection process, McGinnis suggested that Clinton would not be quite as audacious, to steal a word from Obama's best-selling autobiography, in her selection process. He added, "I think that she may be more of a centrist. Obama's voting record and his whole background is very much on the very left fringe of the party. One of the tensions [of Obama's campaign] is that a slogan of unity is better argued if it [corresponds with] with centrist positions."

If the suggestion of a Justice Obama is provocative, Douglas Kmiec, a law professor at Pepperdine University, recently told the The Wall Street Journal, that former President Bill Clinton might be considered by the Madame President, particularly given the fear that he would be aimlessly roaming the White House making mischief. "The former president would be intrigued by court service and many would cheer him on," Kmiec said.

On the whole, Clinton would likely bring a rich blend of experiences and expertise in legal affairs to the nomination decision-making process. This might encourage her to appoint moderate to liberal jurists to the High Court, who are First Amendment advocates but not completely anti-corporate.

To evaluate more closely the differences between potential Clinton and Obama nominees, Obama's background in law will be reviewed in the next segment.

Read the rest of Scoop08's series on the High Court
Part 1: The High Court: A President's Potential Impact
Part 3: Obama's Academic Background Could Influence Court Picks
Part 4: Despite 'Maverick' Tendencies, McCain Judges Would be Consistently Conservative