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If Clinton wins, would Justice Clinton be far behind?

  • Story Highlights
  • Hillary Clinton would nominate her husband for the high court, scholar suggests
  • One lawyer says the former president would only want chief justice job
  • Desire to appoint a woman or a minority may be higher priority
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By Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- It is a title that would be sure to bring either fear or cheer to many Americans, depending on your political leanings: Supreme Court Justice Bill Clinton.

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If Hillary Clinton becomes president, would she nominate her husband for the high court?

That provocative possibility has long been whispered in legal and political circles ever since Sen. Hillary Clinton became a viable candidate for the Democratic presidential nomination.

Now a respected conservative law professor has openly predicted a future President Clinton would name her husband to the high court if a vacancy occurred.

Pepperdine Law School's Douglas Kmiec wrote recently in the Wall Street Journal, "The former president would be intrigued by court service and many would cheer him on."

Kmiec worked for Presidents Ronald Reagan and George H.W. Bush in the White House as a top lawyer, but said he has no personal or political "disdain" for Bill Clinton.

CNN talked with several political and legal analysts of both ideological stripes, and while several laughed at the possibility, none would rule it out completely. And all those who spoke, did so on background only.

There certainly would be no legal barriers to such an appointment. Under federal anti-nepotism laws a President Clinton would be barred from naming her husband, or any relative to an Executive Branch position that required Senate confirmation. But the judiciary, as a separate branch, would present no such problems.

There is precedent for such a nomination: William Howard Taft, who called his time as chief justice, from 1921 to 1930, the most rewarding of his career. He was president from 1909 to 1913.

As one Democratic political analyst said, "You may recall recent trial balloons that Mr. Clinton was perhaps interested in becoming U.N. secretary-general. If he is grasping for a similarly large stage to fill his ambitions and ego, what better place than the nation's highest court, where could serve for life if he wanted?"

But a conservative lawyer who argues regularly before the high court noted Chief Justice John Roberts is fully entrenched in his position, and that might be the only high court spot Clinton would want.

He also might not enjoy the relative self-imposed anonymity the justices rely on to do their jobs free of political and public pressures, the lawyer said.

"Court arguments are not televised, and most justices shy away from publicity as a matter of respect for the court's integrity," the lawyer said. "Could Justice Clinton follow their example?"

Kmiec told CNN that an unnamed member of the high court contacted him, expressing skepticism Clinton would want the job, citing among other things, the lower government pay of a justice, around $200,000.

And politics may trump family ties. Perhaps three justices or more could retire in the next four to eight years, among them some of the more liberal members of the bench. The new president might face competing pressures to name a woman, a minority -- especially a Hispanic or an Asian-American -- and a younger judge or lawyer to fill any vacancies, three qualifications a white male in his 60s like Clinton would not have.

"This particular idea has zero chance of coming true," said Thomas Goldstein, a top appellate attorney who writes on his popular Web site, scotusblog.com.

The more immediate effect of such talk might be more practical: It could help motivate conservative voters in an election year to ensure no Clinton ever reaches the White House or the Supreme Court anytime soon. E-mail to a friend E-mail to a friend

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