Hillary Clinton, never one to miss an opportunity to pander, told a prospective Iowa voter that he had “a great idea,” in suggesting she appoint Obama to the Supreme Court.

It’s a terrible idea, and that has nothing to do with how I feel about Obama’s presidency, his character, or his qualifications for the job.

My friend Ed Brayton, who blogs at Dispatches from the Culture Wars, noted on Facebook that “Obama’s record on civil liberties and in cases before the Supreme Court is pretty terrible. I would have no faith in him as a justice.” He has been bad on civil liberties, but sometimes people change their perspective when they’re in a different position (c.f., Earl Warren). I’m not positive Obama would be a horrible civil liberties justice (although I’d be happier with the appointment of someone with a better track record, for sure).

Others might worry that Obama is too much of a leftist, because apparently there are people who still believe that. I don’t find that a serious concern. More pointedly, some might note that he doesn’t have any judicial experience, and that having been a part-time teacher of constitutional law isn’t the most impressive resume for a SCOTUS appointee. But of course it’s a fairly recent tradition that all appointees must have lengthy judicial experience, and one that appears to me to be largely driven by the American Bar Association’s inappropriate assumption of the role or arbiter of qualifications for a public office (and we worry about the Koch brothers!). Personally, I I think there are umpteen thousand Americans who are qualified for the job, and presidents’ talk about selecting “the best” person is 100% FDA Prime bullshit. And a little less technical lawyering and a little more understanding of the Constitution as more than a legal document–I’m looking at you, Tony Scals–wold be good.

But my overriding concern is the growth of presidential power. And one of the factors promoting that has been a Supreme Court that has been less eager to check presidents, and that–according to political scientists Matt Crenson and Ben Ginsberg in their book Presidential Power: Unchecked and Unbalanced–is at least in part because more and more Supreme Court justices have extensive background in the executive branch, rather than gaining experience elsewhere. They become enculterated in the concerns and needs of the executive, and more willing to give presidents some leeway, rather than trying to keep them in check.

Presumably, presidents have always appointed judges whom they found politically congenial. What has changed is that preisdnets no longer choose judicial appointees with legislative backgrounds, and the political milieu in which judges originate presumably affects their institutional affinities and sympathies. During the nineteenth century, federal judges typically emerged from the country’s electoral and representative systems. …

The fact that many federal judges had served, continued to serve, and often would serve again as legislators helped to reinforce legislative primacy by ensuring that the federal bench would hvae a certain respect and partiality for legislative institutions. …

Judicial deference to legislative power has practically disappeared today …

What has changed in recent decades is the character of judges’ political and governmental experience. Few recent or contemporary federal judges have ever served in a legislative body, but many have served in executive agencies or in federal or state judicial institutions…Today’s judges are recruited primarily from executive and judicial positions, not from legislatures. [pp.305-314]

Crenson and Ginsberg have a table showing the decline of federal judges with judicial experience from a high of almost 81% in 1830, to 38% in 1900–around the time presidential power began its upward trend–to 4% in 20005. We need fewer judges with executive backgrounds, not more, and certainly not one so deeply steeped in sympathy for the office of the presidency itself.

LBJ adviser George Reedy, in The Twilight of the Presidency regretted that the President has become so sheltered that there is no one to tell him “go soak your head” How likely is it that a Justice Obama would tell future presidents–not just a President Hillary Clinton, but a President Rubio, Cruz or Trump, too–to go soak their head?

[Co-published at the Bawdy House]

President Obama has suggested that mandatory voting could offset the influence of big money in campaigns. There’s much that is incoherent in this idea.

First, Democrats are doing as well as Republicans in bringing in big money, but their own electoral failure demonstrates big money itself does turn elections.

Second, the non-voters are generally the least engaged,* who presumably are the most likely to be easily swayed by the advertising of big money, or else might vote essentially randomly.

Third, mandatory voting is illiberal. Forced political participation is another form of social control, rather than a form of liberty. Thorouean types are forbidden. The quiet person who harms no one, pays her taxes without complaint, volunteers in the community, but prefers to not vote is made into a criminal.

Fourth, I object to the instinct to motivate people through punitive action. If as a public policy we want people to vote, then let’s look for positive ways to do so. Traditionally this is done via the parties. Voter mobilization is, in fact, one of the primary purposes of parties, and perhaps the primary purpose.

Fifth, Obama is suggesting that these people should vote for their own good. Mandating that people act in their own interest is perverse, and in my view an improper task for government.

Sixth, it’s not at all certain that big money actually deters turnout, rather than stimulating it.

Overall, it appears to me that the President is concerned about Democratic voter turnout specifically, under the guise of being concerned about overall electoral turnout. He specifically mentioned low turnout among young, lower income, immigrant and minority groups, and criticized efforts to deter their turnout. While it’s fair to argue that efforts to deter turnout are a legitimate public policy problem, the fact remains that Obama is particularly focused on low turnout among populations that he expects to be more supportive of his party, so his solution is not to strengthen his own party’s GOTV efforts, or to find ways to effectively combat voter suppression efforts, but to mandate voting by his party’s likely supporters. Even if successful, though, the lack of close races suggests mandatory voting would have little effect on outcomes.

Under the guise of public policy, this appears to be a means of using law to rig the vote in the Democrats’ favor, no less than voter ID laws are (unsuccessful, I think) efforts to rig the vote in Republicans’ favor, and again under the guise of public policy.

Politicians will normally obscure self-interest behind appealing public interest slogans. They do so because it works, which means appeals like my post here to ignore the slogans will only be effective at the margins.

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*Not solely. I have not voted when I have disliked the options, and I have had a political scientist far more reputable than me assert he gives money rather than voting because it gives his effort more influence.