Trump’s Long-Shot, Machiavellian Option for FBI

Appointing SCOTUS justice to agency vacancy not quite unprecedented, if highly unlikely

by Brendan Kirby | Updated 15 May 2017 at 8:16 AM

Naming U.S. Circuit Judge Merrick Garland FBI director, as some have urged President Donald Trump to do, would have an added political bonus — opening a seat on the powerful D.C. Circuit Court of Appeals.

But if Trump really wanted to get Machiavellian, he could aim even higher for potential candidates to replace fired Director James Comey — the Supreme Court.

“It was written in jest, but it’s not beyond the realm of possibility.”

South Texas College of Law Houston professor Josh Blackman floated the idea on his blog last week. Persuading one of the sitting justices to take the job — for the good of the country — would do more than restore confidence in the FBI: It would give Trump a second opportunity in his first four months to put his stamp on the high court.

It’s a farfetched notion. There are no indications Trump is considering any of the justices. And it seems improbable that a sitting justice would give up the power and prestige of lifetime tenure on the highest court in the land. Blackman told LifeZette it was a tongue-in-cheek proposition.

But it isn’t completely absurd.

“It was written in jest, but it’s not beyond the realm of possibility,” he said.

Blackman noted that there is historical precedent for luring a Supreme Court justice to the executive branch.

Blackman pointed out that then-President Lyndon Johnson wanted to appoint his friend Abe Fortas to the court in the 1960s. But there was no vacancy. So Johnson created one. Blackman said that Johnson told Justice Arthur Goldberg in 1965 that he needed his special mediation skills to negotiate an end to the Vietnam War.

Goldberg answered the call of the president and his country and accepted appointment as the U.S. ambassador to the U.N.

“He put his crony Abe Fortas on the court, and Johnson never returned Goldberg’s call again,” Blackman said. “It was a total setup.”

Goldberg later wrote in his memoirs that he expected Johnson to reappoint him to the high court once the Vietnam crisis had passed.

“I had an exaggerated opinion of my capacities,” Goldberg wrote. “I thought I could persuade Johnson that we were fighting the wrong war in the wrong place [and] to get out.”

Johnson took a second shot at the court in 1967, when he wanted the pave the way for Thurgood Marshall, the first black justice. The president appointed Ramsey Clark attorney general, which effectively forced his father, Tom Clark, to step down since he would have had to recuse himself from so many cases.

So whom would Trump target if he were to decide to swing for the fences? From the Republican perspective, the ideal choice would be one of the Democrat-appointed justices. Justice Ruth Bader Ginsburg is old and in frail health, however. Blackman noted that Justices Sonia Sotomayor and Elena Kagan both have not been on the court long and have decades ahead of them.

Blackman said Justice Stephen Breyer likely would not accept the offer.

“I don’t think Breyer is that dumb,” he said.

That leaves the Republican-appointed justices. Justice Clarence Thomas reportedly has mulled retirement. Blackman said taking the helm of the FBI might be attractive, except that Thomas — who went through a brutal confirmation process — almost certainly would not subject himself to that kind of scrutiny again.

Then come two of the likelier candidates: Anthony Kennedy and John Roberts.

Rumors have swirled that Kennedy intends to step down later this year, anyway. Blackman said taking over as director of the FBI might be the perfect way to cap a long and distinguished career. It would give him the chance to pursue justice unilaterally, without having to win the votes of four other people, according to Blackman.

Picking Roberts would give Trump a chance not just to appoint a new justice but to name a replacement as chief justice as well. And with Kennedy likely stepping down at some point during Trump's first term, he might get yet another chance to make an appointment.

It is unlikely Kennedy or Roberts would accept the offer. But either might respond to an appeal to duty and country, Blackman said.

"It's not insane," he said. "It's a certain gravitas when the president calls."

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