November 14, 2004
SCALITO?:
What The New Court Will Look Like: Bush's model is Antonin Scalia. But nominees who share the justice's strict "textualist" approach could set off a firestorm of opposition (Business Week, 11/22/04)
Bush has said that Scalia and his ideological soul mate, Justice Clarence Thomas, are his favorites on the court. That is fueling speculation that one of them will be tapped to become Chief Justice when Rehnquist, who has been absent from arguments so far this term, retires. Yet several other names could make the President's short list. Jurists J. Michael Luttig and J. Harvie Wilkinson III, both of the Fourth Circuit Court of Appeals in Richmond, Va., are among the candidates Bush is rumored to like; Judge Samuel A. Alito Jr. of the Third Circuit Court in Newark, N.J., is running closely behind. All share an adherence, in some fashion, to Scalia's approach to jurisprudence. Indeed, Alito so closely emulates Scalia that he has earned the nickname "Scalito" among liberals.Count on especially fierce opposition if Scalia is elevated to Chief Justice -- or if a Scalia disciple such as Alito is nominated to fill a vacancy. "Scalia is the far-right anchor of the court," says Nan Aron, president of the liberal umbrella group Alliance for Justice. "He is a leader in urging resumption of states' rights, the death penalty, and a ban on gay marriage." While other jurists, including Thomas, are just as conservative, Scalia combines intellectual firepower with persuasive charm. Just as important, the 68-year-old justice hews to a philosophical framework -- known as textualism -- that gives great weight to the written words of the Constitution and legislation. The doctrine's impact: It curbs the power of the judicial branch to create new rights or extend old ones in light of changing social circumstances. For many Democrats, that makes Scalia the embodiment of a dangerously conservative judicial movement that seeks to limit affirmative action, weaken environmental regulations, and curb civil liberties.
That's why both sides are girding for a huge fight. If Bush decides to elevate Scalia or Thomas to Chief Justice as well as name a new justice, he would trigger two confirmation battles in the closely divided Senate. Liberals say they fear having to fight two appointments at once, and conservatives fret that the fallout from such a pitched battle will damage Bush's chances on later appointments. Both sides may urge the President to minimize the firestorm by giving the gavel to an outsider.
Why waste political capital on a promotion? Posted by Orrin Judd at November 14, 2004 9:43 AM
The article's context is that Business Week pines for the second coming of David Souter.
Posted by: John at November 14, 2004 10:05 AMTo me Thomas makes sense because conservatives like him but being African-American and being on the court for awhile should blunt Dem opposition. Trying to appoint blank slates leads to more Souters.
Posted by: AWW at November 14, 2004 12:19 PM"He is a leader in urging resumption of states' rights". Oooh. Scary.
Posted by: brian at November 14, 2004 1:34 PMWhen the Court takes its two week break for Thanksgiving (starting this week, I think), Rehnquist may well resign. If so, Bush should recess appoint Thomas as Chief and Estrada for the vacancy. At 68, the time for Scalia to be Chief has passed. Besides, Thomas has written some extraordinary opinions in recent years; he is easily the most interesting Justice opn the Court. Scalia's views are kind of old hat by now.
Posted by: Dan at November 14, 2004 1:57 PMI can continue to believe that Thomas doesn't want it (which isn't entirely conjectural), but he'd be good choice. He has administrative experience and gets along well with the other justices.
Posted by: David Cohen at November 14, 2004 1:57 PMMaybe someone can explain this to me: What's the big deal about who is Chief Justice? As far as I know he doesn't decide which cases they hear or get an extra vote, so what extra power does he have, exactly?
Posted by: PapayaSF at November 14, 2004 2:02 PMPapaya:
Votes last and assigns the opinion for his side. Burger used to vote with the majority in cases where he disagreed thinking he could shape the scope of the opinion. That's how we got stuck with the unintelligible Roe v. Wade--he gave it to his pal Blackmun.
Posted by: oj at November 14, 2004 4:58 PM"Why waste political capital on a promotion?"
So as to break the fillibuster rule.
Posted by: Robert Schwartz at November 14, 2004 5:09 PMThose Republicans who are still observing the 'go along to get along' rule should be removed from leadership positions. Did anyone suggest that Clinton appoint conservatives so as not make his subsequent appointments more difficult.
We won guys. Act like winners, let the Dems be the whiners.
Posted by: erp at November 14, 2004 6:13 PM"Why waste political capital on a promotion?"
Because after you win, you have more capital.
Posted by: David Cohen at November 14, 2004 6:42 PM"Bush has said that Scalia and his ideological soul mate, Justice Clarence Thomas, are his favorites on the court."
Thomas is surely not Scalia's "ideological soul mate." They differ significantly in their judicial philosophy. Scalia's textualism is not the same as Thomas's natural law perspective.
Posted by: Paul Cella at November 14, 2004 9:55 PMDoes Thomas have the intellectual firepower needed to be Chief Justice? (For that matter, was he enough of a judicial heavyweight to be appointed to the Court in the first place?)
He almost never speaks during oral argument, sensibly explaining that by the time he thinks of a question, someone else has asked it.
Posted by: Eugene S. at November 15, 2004 3:27 PMEugene:
Has has the intellect but may not be collegial enough.
Posted by: oj at November 15, 2004 3:44 PMWe won guys. Act like winners, let the Dems be the whiners.
Show the Dems as much consideration as they showed us when they were in power:
None whatsoever.
No quarter.
No mercy.