Chief Justice Scalia?

[A18]

http://www.cbsnews.com/stories/2005/05/13/politics/main695133_page2.shtml

Of all the possible candidates mentioned for a US Supreme Court post, none seems more primed for all-out warfare in the Senate confirmation process than Antonin Scalia.

Justice Scalia, who has served on the high court since 1986, is frequently mentioned as a potential nominee for the top post should Chief Justice William Rehnquist announce his retirement.

While the looming Senate showdown over filibusters is now focused on appeals-court candidates, such battles are considered mere window dressing for the ultimate prize - the future direction of the Supreme Court.

A Bush nomination of Scalia as chief justice would throw down a White House gauntlet to liberal advocacy groups. It would reassure religious conservatives that their support of President Bush in the 2004 election was not unappreciated. And, if confirmed, it would lay the groundwork to continue a nearly 40-year rightward shift at the high court by replacing a conservative chief justice with an even more conservative chief.

How a Scalia nomination might play in the Senate is less clear. Some analysts say that while his nomination would spark an intense fight, in the end, Scalia would probably win confirmation.

Senate Democratic leader Harry Reid has recently suggested there would be no filibusters of Supreme Court nominees except in "extreme" cases. He has not defined "extreme."

In December, Senator Reid criticized Justice Clarence Thomas as "an embarrassment to the Supreme Court." But he called Scalia "one smart guy."

"I disagree with many of the results that he arrives at, but his reasons for arriving at those results are very hard to dispute," Reid told reporters.

Scalia is a hero to the legal right, and a lightning rod for the left. Mere mention of his name is considered an effective fundraising tool among abortion-rights and other liberal policy organizations.

During oral arguments at the high court, sometimes Scalia's tongue can be as sharp as his intellect. Critics say he lacks the necessary political skills to lead the court from confrontation to compromise. His prickly relationship with Justice Sandra Day O'Connor, in particular, could undercut his ability to assemble and hold a conservative majority in important cases.

Others say he may not want to be chief justice because the position would reduce his freedom to skewer his colleagues in sharply worded dissents while championing his vision of constitutional "originalism."

"I think it would mute his voice," says Todd Gaziano, director of the Heritage Foundation's Center for Legal and Judicial Studies in Washington.

Scalia is the best known among the six or seven others said to be on Mr. Bush's Supreme Court shortlist. In his 19 years as an associate justice, Scalia has become the nation's leading proponent of an originalist approach to constitutional law.

In his view, judges exceed their authority when they impose their own policy preferences by expanding constitutional rights that never existed in the original document. He says by looking to the text of the Constitution as it was originally written, judicial discretion can be minimized and true constitutional freedoms better preserved.

It is an approach that is increasingly resonating with many conservatives upset over what they view as unrestrained activism by US judges - including some jurists appointed by Republican presidents.

[A18]

Still, there are several unknowns. Chief Justice Rehnquist, who is undergoing cancer treatments, has given no hint of an intention to step down. And although Bush has cited Scalia and Justice Thomas as the type of judges he would seek to appoint to the federal bench, it remains unclear whether his admiration will translate into a chief-justice nomination.

There are also potential strategic considerations. By promoting a chief justice from within the court rather than simply naming a single nominee from outside, the White House would face two confirmation battles, rather than one.

Perhaps Scalia's biggest advantage - and disadvantage - is his extensive public record of nearly two decades of opinions, famous dissents, and law-school speeches. "With Justice Scalia, you know what you are going to get, so there isn't a huge mystery there," says Michael Gerhardt, a constitutional law professor at William and Mary School of Law in Williamsburg, Va.

Because he has become such a high-profile target, a Scalia confirmation hearing would quickly transform into a national debate over the role of judges in interpreting the Constitution.

"The nomination of Scalia would ignite a firestorm of debate in this country," says Nan Aron, executive director of Alliance for Justice, a group opposing many Bush judicial nominees. "His views on originalism, abortion, school prayer, and federalism are way out of the mainstream."

Sean Rushton, executive director of the Committee for Justice, which supports Bush's judicial nominees, holds a different view. "The Scalia hearing - should it come - would be an excellent opportunity to put on display the nature of his philosophy, which when explained openly and clearly, we think is convincing," he says. "Sixty percent to 70 percent of the country will be listening and nodding in agreement."

Such agreement could render some Senate Democrats politically vulnerable on election day, Mr. Rushton says.

Others say it will be Republican senators and the White House who will be backpedaling if Americans come to understand the potential impact of Scalia's approach to constitutional law.

"I don't think originalism [as applied by Scalia] is ever going to be consistently applied by the Supreme Court because it is so extreme and leads to such unacceptable results," says Dawn Johnsen, a constitutional law professor at the Indiana University School of Law who headed the Justice Department's Office of Legal Counsel during the Clinton administration.

"Initially, originalism is very appealing because it promises an easy answer to every question, but it is a lie," she says. "It has the affect of freezing constitutional meaning at a time when only white, propertied men were fully protected under the law."

Professor Johnsen says the last time the nation engaged in a heated debate over originalism was in the 1980s during the Supreme Court nomination hearing of Robert Bork. The Senate defeated his nomination 58 to 42.

"One of Robert Bork's downfalls was his obvious exasperation with certain senators. That doesn't play well on TV," Rushton says.

He says Scalia would be well advised to turn on the charm: "You have to come across as deferential and likable and bright."

[nini2287]

I think Thomas or Scalia would get filibustered.  Everyone else would be approved.

[Beet]

The nomination of Scalia would ignite a firestorm of debate in this country

"firestorm" a.k.a. "compromise". We've learned what Democrats say and what Democrats mean.

[A18]

I think Thomas or Scalia would get filibustered.  Everyone else would be approved.

Well, duh. Everyone else on the court is liberal. Or do you mean anyone off the court would also get approved?

[David S]

If Bush appoints Thomas it would be interesting to see how the Dems would react. Would they vote against the first black Chief Justice in history. Would they renege on their pledge not to filibuster, so soon after making it?

[J. J.]

A Scalia elevation to Chief Justice has several advantages:

1.  It does not change the ideological balance of the SCOTUS.

2.  The position of CJ is not a powerful one, but more a first among equals position.  You will not be strengthening a convervative court by having a conservative JC.

3.  It gives the Democrats a chance to look non-partisan.  They can say, "Look, we didn't filibuster this conservative Scalia; we're not really against all conservatives, just the extremes one like [insert name of Bush nominee]."

Deciding not to filibuster would be a PR advantage for the Democrats.

The question is, will Bush nominate him.

[Beet]

A Scalia elevation to Chief Justice has several advantages:

1.  It does not change the ideological balance of the SCOTUS.

2.  The position of CJ is not a powerful one, but more a first among equals position.  You will not be strengthening a convervative court by having a conservative JC.

3.  It gives the Democrats a chance to look non-partisan.  They can say, "Look, we didn't filibuster this conservative Scalia; we're not really against all conservatives, just the extremes one like [insert name of Bush nominee]."

Deciding not to filibuster would be a PR advantage for the Democrats.

The question is, will Bush nominate him.

You give the Democrats way too much credit, J.J.

[A18]

A Scalia elevation to Chief Justice has several advantages:

1.  It does not change the ideological balance of the SCOTUS.

2.  The position of CJ is not a powerful one, but more a first among equals position.  You will not be strengthening a convervative court by having a conservative JC.

3.  It gives the Democrats a chance to look non-partisan.  They can say, "Look, we didn't filibuster this conservative Scalia; we're not really against all conservatives, just the extremes one like [insert name of Bush nominee]."

Deciding not to filibuster would be a PR advantage for the Democrats.

The question is, will Bush nominate him.

The first one is faulty. If he appoints a brand new originalist to that position, the ideology of the Supreme Court doesn't change either.

If he appoints Scalia chief justice, nothing changes. He then appoints another originalist like Luttig to the associate justiceship.

Either way, that's three originalists on the court overall. And the new guy, whoever he may be, would still be on the table for a filibuster.

So what's the advantage?

[Blue Rectangle]

I don't think the Democrats could afford to filibuster any current justice's nomination for Chief.  The fact that they are on the Court already is sufficient, in the minds of most Americans, to qualify a justice to be Chief.  If the Dems filibuster Scalia, people won't understand what the big deal is--he's been on the Court for many years now.  The Dems might have a better chance at stopping Thomas, but the racial issue is very dangerous.  I don't think they would risk it.

[A18]

I don't think Thomas would make a very good chief justice. He's just not the type... I mean, one of the main things the chief justice does is write opinions.

[Blue Rectangle]

I don't think Thomas would make a very good chief justice. He's just not the type... I mean, one of the main things the chief justice does is write opinions.

Agreed.  My number one choice is Scalia.

[Fmr. Gov. NickG]

I really don't think the Dems should filibuster an appointment of Scalia for Chief Justice...in fact, they should encourage it.  First, it would give them Dems credibility in pressuring Bush to appoint a moderate the the vacant Associate Justice spot, possible making the court more moderate overall than before Rehnquist's retirement.

Additionally, Scalia probably wouldn't hold the seat for very long (in contrast to Thomas).  There would be no "Scalia Court Era" if the Scalia court only lasted only 5-10 years, and he would retire at a time when a Democrat would be more likely to hold the White House.

[A18]

I don't think Thomas would make a very good chief justice. He's just not the type... I mean, one of the main things the chief justice does is write opinions.

Agreed.  My number one choice is Scalia.

My number one choice is a brand new appointment, and that's what I think will happen.

However, Scalia looks very healthy, and Stevens is 85. If Scalia lived just that long, there'd be a 16 year Scalia Court.

Bush is not going to allow, under any circumstance, for the court to become more liberal than it already is. We're not going to replace a conservative with a liberal ('moderate'), period.

[Nation]

I doubt it -- a lot of folks don't like Scalia, but he's consistent when it comes to the Constitution, and is one of the few individuals who really seems to respect states rights, in all cases,  not just the ones that matter to him.

I'd be satisfied with either him or Kennedy as Chief Justice. Preferrably Kennedy.

[A18]

Kennedy is awful. I say Chief Justice Luttig. If they filibuster that, Chief Justice Alito. If they filibuster that, go nuclear.

[AuH2O]

How about the ones that voted to confirm him? Floppity flop...

[Nation]

Kennedy is awful. I say Chief Justice Luttig. If they filibuster that, Chief Justice Alito. If they filibuster that, go nuclear.

Don't Chief Justices usually come from folks who are already on the supreme court?

[A18]

Kennedy is awful. I say Chief Justice Luttig. If they filibuster that, Chief Justice Alito. If they filibuster that, go nuclear.

Don't Chief Justices usually come from folks who are already on the supreme court?

The opposite, actually. Only three of sixteen were: White, Stone, and Rehnquist.

[Storebought]

True: A Chief Justice is more of an honorarium than an actual position of authority; his rulings will not have any more force than any other (if speaking for the majority). So nominating Scalia for CJSC will not make the Supreme Court more conservative..or originalist, whatever.

The true 'power' of the CJSC is purely administrative. In the mold of a W H Taft, a CJ Scalia would determine, solely, which cases to hear from selected jurisdictions, and when to schedule them on the calandar. But that's still small control over as reckless an institution as the Supreme Court has become recently.

[J. J.]

I don't think Thomas would make a very good chief justice. He's just not the type... I mean, one of the main things the chief justice does is write opinions.

The CJ doesn't write opinions; he assigns opinions, when he's in the majority.  With Thomas as CJ, I'd suspect a lot of Scalia opinions.

[A18]

I'd be fine with a Chief Justice Thomas, it's just that I think Democrats would hate him because he's black and conservative, two things that aren't supposed to mix in their world.

Makes more sense to appoint a guy like Luttig, who's a brilliant writer AND an originalist.

[J. J.]

A Scalia elevation to Chief Justice has several advantages:

1.  It does not change the ideological balance of the SCOTUS.

The first one is faulty. If he appoints a brand new originalist to that position, the ideology of the Supreme Court doesn't change either.

If he appoints Scalia chief justice, nothing changes. He then appoints another originalist like Luttig to the associate justiceship.

It doesn't put a newer, younger guy into that position.  You get a CJ that's a "conservative/originalist," but you don't change the ideological makeup of the Court.  It's a win/win situation.  The fight will be over a seat held by O'Conner, Kennedy, Souter, or Ginsburg.  Excepting Souter, they are have health issues. 

Edit: Scratch Kennedy and insert Stevens.

[A18]

So how is that a win/win? I want a chief justice who can last a couple decades.

[○∙◄☻¥tπ[╪AV┼cVê└]

Of course not, he's already on the court, so it won't make much difference.