Supreme Court Justice Barack Obama?

The future of the Supreme Court will be determined in the American presidential election. Now ideologically deadlocked at 4-4 since the death last February of rock-ribbed conservative Justice Antonin Scalia, the Justice filling the ninth seat will tip the balance. In accepting the nomination as Donald Trump’s running mate, Republican vice presidential nominee Mike Pence said: “Americans should know that while we are filling the presidency for the next four years, this election will define the Supreme Court for the next forty.”

God, gays and guns are the hot-button issues coming up before the Court. Throw in campaign finance and abortion, and the Justices’ work is cut out for them. Court watchers speculate that, in addition to the vacancy created by Scalia’s unexpected death, three other vacancies may soon occur by reason of death or retirement. Since these are life appointments, the next President could shape the Court, and US politics, for a generation.

Trump stressed gun rights in a controversial speech, saying: “Hillary wants to abolish the second [amendment guaranteeing gun rights], pick her judges…But I tell you what, that will be a horrible day if Hillary gets to put her judges in, right now we’re tied.”

It is no wonder that the Court is polarised when the appointment process is so politicised, and the presidential candidates are so determined to push their policy choices by making ideology-based Court appointments. The path of a distinguished moderate jurist Merrick Garland has been blocked not on the merits, but on political grounds. It is not clear at all that the Senate will ever approve Garland, and even if Clinton is elected, that she will renominate him.

Trump, pandering to the politically powerful gun lobby, wants to appoint Justices of “similar views and principles” to Scalia. Mike Pence hasn’t given up the ghost on Roe v. Wade (the 1972 judgement which legalized abortion). He says Trump will appoint Justices “for the sake of the sanctity of life and for the sake of all our other God-given liberties.” A Scalia admirer, Pence, as Indiana Governor, named the I-69 extension highway after his hero. Scalia cast the deciding vote in the Heller case in which he saw a personal right to bear arms, wanted to overrule Roe, was opposed to gay rights and gay marriage, and saw only a porous divide between church and state.

Trump’s possible selections consist of six federal appeals court judges appointed by Republican President George W Bush and five state supreme court justices appointed by Republican governors. All are white, and eight of the 11 are men. He said they were recommended by various conservative think tanks such as the Federalist Society and the Heritage Foundation, funded by the conservative financiers, the Koch Brothers.

Clinton on the other hand has said she wants to appoint Justices who will overrule the Citizens United campaign finance decision (which allowed corporations and unions to spend unlimited amounts of money on political activities) and reaffirm Roe v. Wade, which it now appears may be here to stay. Trump has said she will appoint only liberal Justices, perhaps even more liberal than the moderate Merrick Garland, and he is probably right.

These are the times of identity politics and the abandonment of the concept of a single Catholic, Jewish or African American seat. Ethnic seats are no longer the order of the day. Before the death of Antonin Scalia, the Court consisted of six Catholics and three Jews, three women, one Latina, and one African-American. The ethnic composition is quite remarkable given the fact that America is a White Anglo Saxon Protestant country, and in its 227-year history, 89 of its 112 Justices have been WASP males.

A rumor gaining currency in Washington, New York and London is that, if elected, Hillary Clinton will appoint Barack Obama (or possibly even Michelle Obama) as the 113^th Justice. There is precedent for this. Republican William Howard Taft was Chief Justice from 1921 to 1930 after serving as a one-term President from 1909-1913. Taft lost to Woodrow Wilson in 1912 and was at loose ends after being President, so his political crony Warren G Harding appointed him to the Court. Taft is the only person to have held both offices.

Both Obamas have great political clout these days. Obama has a 51 per cent approval rating, Michelle an awesome 71 per cent. These numbers compare quite dramatically with Hillary Clinton’s own approval rating, a dismal 40.9 per cent; and Donald Trump’s, a dreary 36.9 per cent.

Should either of the Obamas be nominated, they would take their seat beside Clarence Thomas as the second African-American on the bench. Either Obama could do the job Thomas failed to do. Appointed as successor to the legendary civil rights advocate Thurgood Marshall, Thomas has been a bitter disappointment to most African-Americans. In his autobiography, My Grandfather’s Son, he describes himself as “an ordinary man to whom extraordinary things happened.” A beneficiary of affirmative action from his college days to the time of his appointment to the Court in 1991, he has voted against black interests virtually every time the issue has been presented. Just last May, in Foster v.Chatman, a murder case involving a black defendant, whom an all-white jury convicted and sentenced to death. There was overwhelming evidence that prosecutors used their peremptory challenges to exclude blacks from the panel. Thomas was the sole dissenter, voting to sustain the death warrant. Even the conservative Chief Justice John Roberts noted in the opinion of the Court: “Two peremptory strikes on the basis of race are two more than the Constitution allows.”

Similarly in the field of affirmative action, a program instituted by Lyndon Johnson, intended to give blacks a helping hand after centuries of discrimination in education and employment, Thomas voted against black interests, stating that he finds affirmative action “humiliating.” When it comes to voting rights, Thomas is no champion of his people either. In Shelby County v. Holder, he voted with the five-man conservative majority to strike down the coverage and pre-clearance provisions of the Voting Rights Act of 1965 designed to reduce discrimination in voting in certain pre-determined “bad actor” southern states.

The only problem with the Obama balloon is that neither has expressed any interest in the job. Obama, to be sure, taught constitutional law. Michelle Obama practiced law only briefly, and became a hospital administrator. Both might prefer to write books (the President reportedly has been offered a $30 million book contract) or the lush harvest of fees that comes from speaking engagements. The notion of either of the Obamas as Supreme Court Justices lives at the moment in a parallel universe.

Whoever fills the Scalia seat, the future of the Court will hang in the balance as the country chooses the next President.

Zirin's new book, "Supremely Partisan—How Raw Politics Tips the Scales in the United States Supreme Court," is published by Rowman and Littlefield