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Justice Bill Clinton?
Legal Times
December 18, 2007
In a mind-bending op-ed column in last Friday's Wall Street Journal, Pepperdine University law professor Douglas Kmiec speculates on where a President Hillary Clinton could park her energetic husband after she is sworn in. Bill Clinton, the onetime University of Arkansas constitutional law professor, could be named to the Supreme Court.
Apart from the obvious sticky wicket of nominating a once-impeached and disbarred former president to the nation's highest court, another corollary question might be this: Would a Justice Bill Clinton have to recuse when, as might happen often, he is called on to rule on a policy or law he or his wife initiated, signed or vetoed as president?
Probably not, says Kmiec in response to an e-mail inquiry Monday morning. And if that's the case, then the Clintons might have Justice Antonin Scalia to thank for providing clear precedent. In the 2004 case of Cheney v. United States District Court, Scalia was famously asked to step aside because he had gone duck hunting with a party in the dispute, namely Vice President Dick Cheney.
Scalia refused in a memorandum that distinguished between cases in which his participation might benefit a friend financially, and the case before him in which he would be ruling on Cheney's official actions as vice president. "While friendship is a ground for recusal of a Justice where the personal fortune or the personal freedom of the friend is at issue, it has traditionally not been a ground for recusal where official action is at issue, no matter how important the official action was to the ambitions or the reputation of the Government officer."
By the way, Kmiec, a veteran of the Reagan Justice Department, hastens to make clear that he is not rooting for the nomination of Bill Clinton, but rather speculating about how it might come about. One selling point for the Clintons, Kmiec suggests: "being able to play a pivotal role in undoing the Reagan-Bush legacy of appointment on the lower courts."
