The Democratic Cabinet With a Liberal Return Policy

360 readers might want to watch for an intriguing pattern emerging in the way President-elect Barack Obama handles some of his potentially controversial nominations. Call it the Best Buy, or contingency, pick. Obama used it to great effect in his handling of the secretary of state's job for Sen. Hillary Rodham Clinton (D-N.Y.) and the attorney general's post for Eric Holder.

Clinton, for example, was his pick, period. Not a "leading contender," as often happens when a name leaks out or a trial balloon is purposely launched.

Not here. The Obama folks surely knew that, if nothing else, Clinton's three-car motorcade at Obama's Chicago headquarters was likely to be spotted. But when word got out, some of Obama's folks didn't deflect -- they didn't just say that it was a friendly chat, or that he would be honored if she would be willing to serve in some capacity in his administration. No, on background, transition folks said it was a done deal for State.

Oh. Well. Not quite. There is a 30-day return policy. In that period, she, not the president-elect, has to figure out how this would work with Bill and his numerous adventures, speeches, and dealings with overseas heads of state and others as part of his Clinton Global Initiative. There also may be some questions about prior financial affairs to work out.

Bill said yesterday that he will do whatever it takes to make the appointment happen, and lawyers were confident they could accomplish the fancy footwork. In the meantime, the junior senator from New York is doing a little backing and filling herself, letting it be known how she likes the Senate, albeit in a very junior capacity with no prospects of moving up, and wants to be her own boss and so on. So she's said to be mulling over the offer.

Reminds us of the Hamlet-like performance of former New York governor Mario Cuomo when Bill Clinton offered him a seat on the Supreme Court and he accepted, then he didn't, and back and forth.

For Obama, sending up one name is a more effective way to test reaction on the Hill - the questions can be focused on a specific nominee as opposed to a trio of possibles.

In the end, if it doesn't work out, there was no Obama announcement, no photo op. There are no pictures of him walking out with Clinton, smiling. He's reached out to his former foe, he's been magnanimous. And of course he will be saddened that it didn't work out.

Then there was the Best Buy pick Tuesday of former deputy attorney general Holder to be attorney general, which would make him the first African American to hold the office. While there are conflicting accounts about precisely what was said to Holder, who apparently has tentatively accepted the job, there's still the contingency element.

He'll be the nominee if he gets some support from Senate Republicans and clears the vetting process. If it doesn't work out, same rules apply. The Republican National Committee has already attacked Holder, focusing on his role at the end of the Clinton administration in the pardon of fugitive financier Marc Rich. GOP senators are warily circling. Some appear to be lining up to do battle.

So if you want the big flat-screen, it's yours. Just save the receipt and don't throw away the box.

You may have thought that when federal judges and Supreme Court justices got together, the conversation would naturally turn to topics involving ERISA law and the dormant commerce clause.

Apparently that's not always the case. The banter between longtime friends Justice John Paul Stevens and U.S. District Judge Jose Gonzalez Jr. of Fort Lauderdale sounds like a lot more fun.

Stevens mostly played straight man to Gonzalez during their joint appearance Monday at an event sponsored by the University of Florida's Fredric G. Levin College of Law. Gonzalez joked that when he was in law school, he "wasn't sure I wanted to be a lawyer, but I was certain I wanted to have a good time," and as a result he needed an extra summer in order to graduate last in his class.

Now, here he is friends with a Supreme Court justice, and he said their conversations have three major ingredients: "Washington Redskins football, Florida Gators football, and judicial salaries and benefits."

For most judges, it would be salaries first.

The phone bill is inching up at transition headquarters in Chicago. Obama returned phone calls to five world leaders yesterday, thanking them for their congratulatory calls on his election victory.

Aides said Obama spoke with Colombian President Álvaro Uribe, Nigerian President Umaru Yar' Adua, Senegalese President Abdoulaye Wade, South African President Kgalema Motlanthe and United Nations Secretary General Ban Ki-moon.

Even if the problems involving Bill Clinton's finances can be resolved, there's another potential issue for his wife's nomination. It's called the Constitution of the United States, specifically Article I, Section 6, also known as the emoluments clause. ("Emoluments" means things like salaries.)

It says that no member of Congress, during the term for which he was elected, shall be named to any office "the emoluments whereof shall have been increased during his term." This applies, we're advised, whether the member actually voted on the raises or not.

During Clinton's current term in the Senate, which began in January 2007, Cabinet salaries were increased twice -- first that month and again in January 2008, to $191,300.

This situation has arisen before, most famously in what became known as the "Saxbe Fix," which involved a controversial, somewhat tortured reading of the Sacred Document. The "fix" came in 1973, when President Richard M. Nixon nominated Sen. William Saxbe(R-Ohio) to be attorney general after the famed "Saturday Night Massacre" of the Watergate scandal. Saxbe was in the Senate in 1969 when the AG's pay was raised.

Congress acceded to Nixon's request to lower the attorney general's salary to its pre-1969 level. Apparently this had been done once before, in 1909, for a senator in line to be secretary of state. And President George H.W. Bush, as he was leaving office, approved a Saxbe fix so that Sen. Lloyd Bentsen could become Treasury secretary.

But Democrats in the past have inveighed against this sleight of hand. In the Saxbe case, 10 senators, all Democrats, voted against the ploy on constitutional grounds. Sen. Robert C. Byrd (D-W.Va.), the only one remaining, said at the time that the Constitution was explicit and "we should not delude the American people into thinking a way can be found around the constitutional obstacle."

Call it the Hillary Amendment?

LISA