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October 09, 2014

What Will Obama Do After The White House?

Eugene Volokh points to this suggestion by Lawrence Tribe that is truly stomach-turning.

Justice Barack Obama?

President Obama will be only 55 years old when he leaves office. Even if he spends a few years after that earning money on the lecture circuit, he’ll still be young enough to be a Supreme Court pick. His youth may cause him to want to be more than just an ex-President and the things that come with that. [President Taft’s gap between the White House and Supreme Court was eight years.]

There are a lot of other reasons why Obama could someday end up a Supreme Court Justice. [This is not a political discussion. Coverage Opinions never gets into politics. It is simply objective observation.] There are very few real jobs that an ex-President can have, given their celebrity and the security issues. Supreme Court Justices are generally insulated from the public and the job already comes with a built-in security function. Obama has taught constitutional law. He is reported to be less than fond of political schmoozing. That is not a job requirement. And serving on the Supreme Court — thus in all three branches of the federal government — would have a huge impact on his legacy.

I asked Professor Tribe if he “can envision Obama someday wearing a robe at One First Street?” He replied: “That’s not hard to envision. He would make a first-rate Justice on every dimension that matters.”

[Incidentally, Obama, while a student at Harvard Law School, served as a research assistant to Professor Tribe for two and a half years. Tribe can point to a 1989 Harvard Law Review article where he thanked student Barack Obama for his assistance.]

Not. Gonna. Happen.

Let’s consider why.

First, Obama is a polarizing figure who will be unable to make it through the confirmation process unless there is a Democrat in the White House and Democrat-controlled Senate. Heck, I don’t know that even a Democrat-controlled Senate will be sufficient to get a confirmation done without invoking a harsh level of party discipline not seen since the days of Senate Majority Leader Lyndon Johnson and a willingness to invoke the nuclear option to clear away the filibuster.

Second, Obama’s record of public service is much more sparse than that of William Howard Taft. Taft had been a successful Cabinet member and territorial governor prior to his time in the White House as well as a respected federal judge. Obama, on the other hand, has a much less substantial resume and lacks the legal credentials – both in terms of teaching, academic scholarship and legal practice – that have come to be expected of a Supreme Court justice today. I don’t know that (absent his years in the Oval Office) he would be recognized as qualified for a seat on a Circuit Court or even a District Court.

Third, there is the small matter that Obama is no longer even licensed to practice law in any jurisdiction in the United States. Obama does not currently have an active law license, having changed his registration to inactive when he began his presidential run in 2007 and to retired after his election as president. While he might go back and pay a decade’s worth of registration fees after his time in office expires, I find that unlikely – and I doubt sincerely that an individual not eligible to practice law is going to be deemed qualified for the highest court in the land.





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