Hillary Clinton won't be Barack Obama's choice to replace Justice Souter. Obama will choose someone else, if only because Clinton is proving to be an exceptionally adept Secretary of State.
But in several years, when the next retirement comes, Clinton and Obama may be confident enough to pass State off to a Clinton protégé, making Hillary available to tackle an equally imposing task: bringing our rights jurisprudence into the 21st century.
Addressing the concerns of underrepresented people on the Supreme Court is usually framed in demographic terms. This is a safe, predictable avenue for these legitimate needs to take expression.
Barack Obama has attempted to shift this focus by referring to the need for a Justice with "empathy." Empathy speaks to Christian concepts of tolerance and compassion. This emphasis also indicates that Obama will choose a Justice who will be a faithful representative of the needs of the vulnerable in America by conviction, not necessarily by superficial qualities.
No wonder that the right was quick to recognize this as a threat to their core advantages and successfully demeaned the concept with the assistance of an all too pliant set of talking heads.
If we were to choose a Justice based those in need of judicial representation on the Court, we would have to choose an underemployed Hispanic gay woman. Ideally she would be a single mother and an immigrant. She would have spent some of her life homeless and some of her life on public assistance.
Clearly no such person would be chosen for the Court, even if they existed as neatly as that.
That is why, although the Court undoubtedly needs more women and Hispanic representation, , or even a "two-fer" like the imminently qualified, Jeffrey Rosen's shameful piece to the contrary, Sonia Sotomayor, the calls for a woman or a Hispanic Justice leave me cold.
Instead of chasing the demographic tiger, in addition to a strong legal background, Supreme Court Justices should be chosen on the basis of their understanding of and empathy for disadvantaged and underrepresented groups.
I can think of only one person in America who has experience with and empathy for all of the groups I mention above. That person is Hillary Clinton.
In 1953, President Eisenhower nominated Earl Warren to be Chief Justice of the Supreme Court. Warren was a rival to Eisenhower's nomination, though not his principal rival. Warren, the Governor of California at the time, had stood as a "favorite son" candidate in the Republican primary of 1952.
Favorite sons were a now archaic tool of politicians who were enormously popular in their own state but without the nationwide presence to mount a successful challenge for the nomination. They would take their delegates to the convention in the hope of either brokering a deal in exchange for a coveted position or emerging as a compromise candidate in the event of a deadlocked convention.
So it was with Warren, who traded California's delegates for the Supreme Court. Eisenhower, who shared the prejudices of his day, but by all indications of a non-virulent variety, would come to be appalled by Warren's aggressive advocacy of the powerless in American society. No one save perhaps Franklin Roosevelt and Lyndon Johnson did as much to advance the cause of the meek as Earl Warren did.
Warren expanded protections for criminal defendants and most famously cajoled and persuaded a Court composed of several reticent Southerners to begin the work of dismantling America's segregated society. All this even though, like Clinton, Warren had never served as a judge.
Warren had an advantage in combating the racism of his era. His chauffeur was a black man of exceptional intelligence and dignity. Warren, to his credit, took to engaging the man in conversation and sought to truly understand his condition.
By learning in some small piece the daily horrors of being a black person in 1950s America, Warren grew in his conviction that the whole edifice of the corrupt system of segregation had to be dismantled brick by painful brick.
Though some like to dwell on that horror while others ignore it entirely, I believe it is only true to the remarkableness of America if we acknowledge both the horror of that age and the unique American triumph in overcoming it. Our karmic reward as Americans for our shared struggle came in the election of Barack Obama, a man whose skin color is truly the least exceptional thing about him.
Like Warren's experience with his chauffeur, Clinton's journeys across America have left her with a profound and reciprocated appreciation for three crucial groups who continue to suffer in modern America: gays, women, and Hispanics. These three groups of people found their struggle personified in Hillary's campaign, they fought passionately for her, and they trust her implicitly.
Nominating Hillary Clinton to the Court would reward each of these groups not merely symbolically, but in providing a force on the Court powerfully and canny enough to craft the civil rights jurisprudence capable of finally bringing American justice into the 21st century.
Immigration reform, reproductive rights, violence against women, workers rights, and the right to love without discrimination would all find a fertile champion in Hillary Clinton. In addition to her campaign experiences, Hillary Clinton's earliest work was on behalf of women in heartbreaking circumstances.
For those reasons and so many more, I hope that Barack Obama's next choice for the Supreme Court will be Hillary Clinton.
Written in fond remembrance of one of the most amazing women I ever knew, Isabella Harty-Hughes, beloved mentor, proud mother to three brilliant and amazing daughters, proud teacher to many and proud advocate of Hillary Clinton.