It is my belief that President Obama almost became a Supreme Court justice. This is because that if Hillary Clinton had become President 3 years ago, he would have been the most obvious pick to replace a resignation during Hillary Clinton’s term. It is likely RBG would have retired by now given that she is in her late 80s, to ensure her seat would not be appointed by a Republican in case Hillary Clinton were to lose, and because of this, Barack Obama would have been the obvious candidate to replace her.
Now, it is true that a President going on the Supreme Court is an unusual circumstance, but I think this is because having a former President who is young enough to be a long term pick is very rare.
- So, in 2017 when Hillary Clinton would have become President, Barack Obama was 56, Bill Clinton was 71, and Jimmy Carter was 93. Obama was the only President young enough to be truly worth appointing.
- In the reality we live in with Donald Trump became President in 2017 George W. Bush was 71, and George H.W. Bush was 93, so neither were likely picks for the Supreme Court.
- In 2009 when Obama was elected, Bill Clinton was 63, and Jimmy Carter was 85. Carter was too old to be considered, and Clinton was 10 years older than the average SCOTUS appointment. Bill Clinton could have been appointed, but President Obama of course went with Sonia Sotomayer and Elena Kagan who are 8 and 14 years younger than him. The last SCOTUS justice who was appointed when he was over the age of 60 was Harry Blackmun in 1970. Since 1980 the average age at appointment is 52. Presidents want to appoint Justices who will last, which is why Ruth Bader Ginsburg is the oldest justice when she was appointed in the last 50 years.
- When George W. Bush entered office in 2001, the youngest living former Republican President was his father at the age of 77.
- When Bill Clinton was elected President in 1993, the only living former Democratic President was Jimmy Carter who was already 69.
- No living former Republican Presidents were living and under the age of 60 either in 1981 or 1989.
- When Jimmy Carter was elected, only Nixon and Ford were still living.
- When Nixon was elected in 1969, there were no living former Republican Presidents.
- When John F. Kennedy became President in 1961 the only living Democratic President was Harry S. Truman who was 77.
- When Dwight D. Eisenhower became President in 1953, the only living former Republican President was Herbert Hoover who was 79.
- Herbert Hoover was the only living former President through the terms of both Harry S. Truman and Franklin Delano Roosevelt.
- Calvin Coolidge was 57 when Herbert Hoover became President in 1929. William Howard Taft was on the Supreme Court.
- In 1921 when Warren G. Harding was elected he appointed William Howard Taft as the Chief Justice of the Supreme Court who was 63 years old. Taft is currently tied with Levi Woodbury as the 4th oldest Supreme Court pick in American history, behind only Charles Evan Hughes (1930-1941), Horace Harmon Lurton (1910-1914), and Lewis F. Powell Jr. (1972-1987). He was tied with Levi Woodbury (1845-1851). He was the second oldest pick at the time, and a fairly unusual choice. The only time since then where there has been a living former President young enough to be seriously considered as a SCOTUS pick was Bill Clinton in 2009.
- There were no living former Democratic Presidents in 1913.
- Theodore Roosevelt was the only living former President in 1909. He was 51 years old. I believe he was not picked because he had major ideological differences with William Howard Taft. This deserves an article of its own.
- Grover Cleveland was the only living former President in 1901. He was 64. He was also a Democrat, whereas Roosevelt was a Republican.
- Benjamin Harrison was 64 when President McKinley became President.
- Benjamin Harrison had no living former Republican Presidents when he was elected in 1893.
- Rutherford Hayes was alive when Grover Cleveland was elected in 1885, but he was 63.
- Both Presidents Grant and Hayes were alive, and both were 59 years old when James Garfield became President in 1881. President Garfield was able to appoint one Justice. President Arthur was able to appoint two Justices as well, meaning that even though these two Presidents served for only 4 years they were able to appoint a third of the Supreme Court. President Grant was going on a world tour when all three of these appointments were made, and Garfield had defeated Hayes in the primary of 1880. Party lines were not as strict as they are today, and it doesn’t take a lot of explanation to see why they would not offer a Supreme Court position to a former political rival.
- There were no living Republican or Whig Presidents in 1869.
- John Tyler was the only living Whig President when Abraham Lincoln entered office in 1861. He was 71 years old. The Republican Party was founded on the ashes of the Whig Party.
- Franklin Pierce, Millard Fillmore, and Martin Van Buren were alive when James Buchanan became President in 1857. Pierce was 53, Fillmore was 57, and Van Buren was 75. James Buchanan chose to appoint Nathan Clifford instead who was 54. Buchanan opened his Presidency by recalling all of Pierce’s appointments, so Pierce was an unlikely pick. Millard Fillmore had run against Buchanan in the 1856 election as the Know Nothing candidate, so he was also an unlikely pick for the Supreme Court.
- After Fillmore had run as a Whig in 1852 it was unlikely Pierce would select him in his one Supreme Court pick. Martin Van Buren was 71, so an unlikely choice.
- John Tyler was the only living Whig President during the terms of both Taylor and Fillmore. Fillmore had one pick in 1851, at which point John Tyler was 61, so an unlikely choice.
- John Quincy Adams and Martin Van Buren were the only Presidents when James K. Polk was elected in 1845. Van Buren was 63 and Adams was 78, so they were unlikely choices.
- John Tyler had no Supreme Court appointments.
- Andrew Jackson was 70 when Martin Van Buren was elected President.
- Andrew Jackson was a significant break from earlier Presidents, and all of his predecessors were over 60 when he was elected President.
- All living former Presidents were over 60 when John Quincy Adams, James Monroe, James Madison, Thomas Jefferson, and John Adams were elected President.
Looking now at all of American history it becomes clear that the real reason we have had only one President appointed to the Supreme Court is because it is highly unusual to have a former President of the same Party as the current President who is young enough to likely last for a significant amount of time. The only times in American history a former President has been 63 or younger, of the same party as the new President, not a former political rival of the new President, and alive are as follows:
- Bill Clinton in 2009 at 63 would have been older than any other appointment since Nixon.
- Calvin Coolidge in 1929 at 57.
- William Howard Taft in 1921 was 63.
- Ulysses S. Grant was 55 in 1877.
- Fillmore was 57 in 1853.
- Pierce was 53 in 1853.
- John Tyler was 59 in 1849.
That’s the entire list.
Now just imagine… if Obama was a Supreme Court Justice he would have been able to push through many of the policies he proposed to congress which were defeated, things like:
- Fighting voter ID laws
- The DREAM ACT
- High speed rail
- Health care access
- and many, many more policies which were defeated in Congress
Just imagine for a minute, what that would have looked like.
Splitting 5-4, Supreme Court Grants Alabama’s Request to Restore Voting Restrictions