A SCOTUS Justice for FBI Director?

May 10th, 2017

Eric Posner called Trump’s firing of Comey “an ingenious bit of Machiavellian jujitsu.” To level up, Trump should think big league about Comey’s replacement. On the excellent Lawfare Podcast, Ben Wittes suggested that Merrick Garland would be a perfect selection for FBI Director to. That selection would also have the effect of freeing up a seat on the all important D.C. Circuit (though not compelled by the Incompatibility Clause). By why stop with the second highest court in the land?

To take a page from LBJ’s playbook, Trump could offer the Directorship to a sitting Supreme Court justice. Recall that Johnson asked Justice Goldberg to resign to serve as ambassador to the United Nations, in order to open up a vacancy for his crony Abe Fortas. Likewise, Johnson appointed Ramsey Clark as Attorney General to force Tom C. Clark to resign, in order to appoint Thurgood Marshall to the Court.

What if Trump opted to select a sitting Supreme Court Justice to serve as FBI Director? The idea is not unprecedented. After J. Edgar Hoover’s death, there was some buzz (as Tony Mauro recounts) that Byron White would be appointed to replace him. Appointing a Justice would assuage concerns about judicial independence, and, in the process, open up another vacancy.

The prospect of FBI Director Ginsburg–who would have the power to go after Trump–will make the resistance swoon, but that is likely a non-starter. Perhaps Justice Breyer’s unwavering commitment to Democracy could nudge him to step down from the Court and step up for the Country. This is also unlikely, as he knows his seat would be replaced by a far more conservative jurist. As for Justices Kagan and Sotomayor, they are only getting started, so they are staying put.

That brings us to the conservative members. Justice Thomas, who has been rumored to want to step down, would under no circumstance subject himself to another Senate confirmation. So that’s out. I think the same could be said for Justice Alito, who, after his State-of-the-Union nod, wants nothing to do with Congress.

That leaves Chief Justice Roberts and Justice Kennedy. Both selections would, in Posner’s terms, be Machiavellian in different ways.

Rumors swirl that Justice Kennedy wants to step down. A huge inducement would be to give him the unilateral authority he alway sought to pursue Justice.  Perhaps that could nudge him to step aside at a time when the nation needs him the most. Having single-handedly protected abortion, same-sex marriage, and affirmative action, now he can save the rule of law. After nearly three decades on the Court, he could pursue this new mission during the twilight of his august career. Further, his confirmation hearing would be a walk in the park. Democrats are forever indebted to him for creating a host of constitutional rights out of whole cloth, and Republicans would be thrilled to open up the seat for Bill Pryor.

Or, Trump could swing for the fences. If the President is looking for someone with a truly independent streak, who can restore the FBI’s prestige as an “institution,” and who avoids divisive partisanship, even to his own detriment, look no further than Chief Justice John Roberts. Over the last decade, at one point or another, Roberts has infuriated the right and the left. Yet, throughout it all, he has maintained poise and stayed out of the limelight. Plus, he has already demonstrated his ability to waltz through confirmation hearings, and skate circles around befuddled Senators. Most importantly, Trump would clear up one seat, and with Kennedy and Trump on the wings, allow him to appoint a total of four new Justices. That would be the art of the deal.

(This post was written in jest, though in this moment, reality is often stranger than fiction).