There’s been lots of chatter lately suggesting that Barack Obama should promise Hillary Clinton a seat on the Supreme Court as a sort of runner-up prize and inducement for her to finally get out of the presidential race. Bloggers have debated her fitness for the job, whether she’d want it, or whether it would even be a good idea. But all of this is much ado about nothing. There is no way Hillary, or her husband for that matter, will ever warm a seat on the high court, for one major reason: She is simply too old.
Like the rest of the federal judiciary, Supreme Court justices serve for life. That’s why Republicans over the past 15 or 20 years have made a very active and conscious effort to fill those seats with the youngest possible candidates as a way of preserving their influence for generations. The average age of GOP nominees for Supreme Court justice since 1981, including O’Connor, is 50, a full decade younger than Hillary. (Indeed, there’s not a person on the court today who was older than 60 when nominated.)
Democrats haven’t had a chance to pick as many candidates, but they clearly haven’t made age as much of a priority. No doubt that will change should they retake the White House in the fall because, as Republicans have shown, the math is simply too compelling. Consider that when George H.W. Bush nominated Clarence Thomas in 1991, Thomas was only 43 years old. If he hangs on as long as the court’s current veteran John Paul Stevens, 88, the country will be stuck with nearly a half-century of Thomas jurisprudence.
Compare that with the tenure of Clinton-appointee Ruth Bader Ginsburg, who was nominated at age 60, a year younger than Hillary is now. If she matches Stevens’ longevity, she’d still have 15 fewer years on the job than Thomas. Certainly the court could benefit from the turnover that comes with shorter tenures, but if you’re Obama, looking to create some kind of liberal legacy on the court, a 62 or 65-year-old Hillary isn’t it.
Instead, my money is on Neal Katyal, the current liberal rock start of Supreme Court advocates. Katyal argued and won the critical Hamdan v. Rumsfeld case in 2005, in which the court ruled that the Bush administration’s military tribunals at Guantanamo Bay violated the Geneva Conventions. He clerked for Stephen Breyer as well as the dean of liberal law, Guido Calabresi, on the U.S. Court of Appeals for the Second Circuit. Katyal is well-connected, too, having worked in the Clinton administration Justice Department as an adviser for National Security Affairs.
Best of all, Katyal is but 38, not to mention a total stud, and of South Asian descent. Of course, with his national security background, his resume also puts him first in line for a host of jobs in an Obama administration (he’s already done some work for him), from attorney general to solicitor general. As someone who’s been profiled in Vanity Fair, Katyal may not even be interested in becoming one of the brethren, but his age certainly makes him a compelling candidate. At least he’s young enough to outlast Clarence Thomas.