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Here’s how Barack Obama might just end up on the Supreme Court

Getty/Aaron P. Bernstein

It’s been 232 days since Merrick Garland, chief judge of the DC Circuit Court of Appeals, was nominated to fill the Supreme Court vacancy left by Antonin Scalia’s death in February.

Despite many high-profile issues on the court’s docket, the Republican-dominated Senate has refused to even consider Garland, arguing that the next president should choose Scalia’s replacement. Senate Republicans may regret their decision come January, though, because Hillary Clinton has a far more liberal name on her list of potential Supreme Court nominees: Barack Obama.

At a campaign event in January, a supporter asked the Democratic presidential nominee if she’d consider nominating Obama to the nation’s highest court. Clinton expressed excitement over the prospect:

Wow, what a great idea. No one has ever suggested that to me. I love that, wow,” she said. “I mean, he’s brilliant, he can set forth an argument, and he was a law professor. So he’s got all the credentials, but we would have to get a Democratic Senate to get him confirmed.

Clinton has been relatively coy about her potential Supreme Court nominees, mostly to present a united front with Obama while he’s still in office. But at the second presidential debate, Clinton said she wanted to break from the recent trend of nominating appeals-court judges: “I want to appoint Supreme Court justices who understand the way the world really works, who have real-life experience, who have not just been in a big law firm or clerk for a judge and then gotten on the bench.” And during the third debate, Clinton added that she’d nominate justices with a social-justice bent.

Obama fulfills both criteria.

As Clinton noted in January, Obama definitely has the academic chops to serve. He graduated magna cum laude from Harvard Law School, where he impressed professors with his intelligence and curiosity, and served as the first African-American president of the Harvard Law Review. Obama then taught constitutional law at the University of Chicago Law School until 2004, when he was elected to Senate. Even without his experience as president, Obama would be more than qualified for a nomination.

He also has the potential to be a truly great justice. The Supreme Court has had a conservative majority since at least 1971, with Republican nominees at times completely dominating the court (at one point in the early 1990s, it had an 8-1 Republican majority). For nearly half a century, the court’s “liberal” wing (in reality, mostly left-leaning moderates) has been playing defense against the court’s dominant conservative wing. Obama could be something the Supreme Court hasn’t seen for at least a generation: a real progressive activist in the tradition of former Justices Thurgood Marshall or William Brennan. In other words, he could be a liberal Scalia.

Obama could be something the Supreme Court hasn’t seen for at least a generation: a real progressive activist.

But would Obama accept the nomination? There are some reasons to think he might not, at least in the short term.

The biggest hurdle to an Obama nomination would be Garland. After spending most of a year arguing for Garland, the president might feel it unseemly to take the seat away from him. It’s also very possible that the Senate could confirm Garland after the election, but before the inauguration in January, to prevent Clinton from making her own, presumably more liberal nomination. So, the vacancy simply may not exist by the time Obama leaves office.

Even if Scalia’s seat remained unfilled, however, an Obama nomination might not resolve the court’s current 4-4 split; he’d likely sit out cases involving actions taken by his administration to avoid any perceived conflicts of interest. This would prevent Obama from participating in major decisions over the next several years, including his deferred action immigration policies and the Environmental Protection Agency’s Clean Power Plan. Clinton—or Obama himself—may decide that it’d be better to have a nominee with fewer conflicts.

And there’d be many conflicts, as seen in recent years with the nomination of former Solicitor General Elena Kagan (the person in this role represents America in front of the Supreme Court, and helps develop the Justice Department’s trial strategies). During her first term on the court, Kagan recused herself in more than a third of cases because of perceived conflicts. Obama would miss even more cases, and his absence could have a greater impact because he’d be the deciding vote on a court that’s now evenly divided between conservatives and liberals.

An Obama nomination isn’t probable in the near future, but it’d be a progressive dream come true.

There’s one final reason an Obama nomination might not happen, at least in the short term: He’d go from being president to the lowest-ranking justice on a court that would include at least two of his own nominees, possibly creating an uncertain dynamic. There’s also a longstanding tradition of the most-recently appointed associate justice on the Supreme Court being responsible for some administrative tasks; these include taking notes and even serving coffee during the justices’ closed-door conferences, which seems beneath a former president. Even if Obama were the best potential nominee, the perceived indignities of going directly from leader of the free world to the court’s junior justice might be too much to overcome.

The long term, though, is a different story. In several years, Justice Obama would need to recuse himself in far fewer cases, and concerns over respect and formalities will likely fade. Should Clinton win a second term in 2020, Obama would be a compelling nominee to the Supreme Court—and he wouldn’t be the first president to serve.

In 1921, President Warren G. Harding nominated former President William Howard Taft to be chief justice of the court. Taft was confirmed, and served until shortly before his death in 1930, arguably having a bigger impact on the country as chief justice than as president. Although his presidential term is most famous for its inglorious end—he came third in the 1912 election behind Woodrow Wilson and immediate predecessor Theodore Roosevelt, who was running again as a third-party candidate—Taft was a much more competent jurist, successfully using the court to combat progressive legislation, such as state minimum-wage and labor laws.

But whereas Taft used the Supreme Court to block progressive laws, we could expect something very different from Obama. The president would join the first court with a liberal majority in nearly half a century, opening up dramatic new possibilities. Justice Obama could help push it in a progressive, intersectional direction by abolishing the death penalty, ending solitary confinement, guaranteeing the right to vote, overturning the Citizens United decision that allowed for unlimited corporate spending on elections, and more. An Obama nomination isn’t probable in the near future, but it’d be a progressive dream come true.

With this possibility looming, Merrick Garland is probably looking better and better to Senate Republicans every minute.