« Romney Embraces Religious Right in Iowa | Main | More red state "values" - lol! »

December 05, 2004

The Next Chief Justice (part 2)

So why in the world do I think it would be a good thing for President Bush to name Justice Scalia or Thomas as ailing Chief Justice Rehnquist's successor?

For two reasons.  First, because Bush will have to burn an enormous quantity of political capital to get either of them confirmed.  And second, because neither of them would likely be a very effective Chief Justice.

The first point is pretty much a no-brainer.  Both Scalia and Thomas are extremely well-known, both hold views that are generally on the far right wing of the legal community, and a nomination of either would therefore result in a confirmation battle so bloody that it would make the Bork fiasco look like a tea party.  Bush would really have to go to the mat to get either of these guys confirmed.  Not that he would necessarily see that as an obstacle: Bush has already said that he intends to spend the political capital that he supposedly gained in the November election.  But that capital is not unlimited, so let's hope he chooses to spend it foolishly on things that won't really further his agenda.

And why wouldn't the elevation of Scalia or Thomas to Chief Justice further the Bush agenda?  This brings us to the second point: because neither of them would be a very effective Chief Justice.  Scalia's opinions (especially his dissents) are an object lesson in how to alienate your colleagues.  He is so convinced of the rightness of his often-extreme views that he thinks anyone who disagrees with him is stupid - and he frequently says so (see this opinion, in which he famously opined that Justice O'Connor's views were "irrational" and "cannot be taken seriously").  Predictably, the result is that Scalia is marginalized within the Court, a perpetual right-wing dissenter who at this point has so irritated the other Justices that he couldn't generate consensus around his views even if he wanted to. 

Thomas is a somewhat more complicated story.  He lacks Scalia's overly aggressive and arrogant style, so he has not marginalized himself within the Court in the way that Scalia has.  And early dismissive assessments of him as a "Scalia clone" have faded as he stakes out his own positions.  But those positions are in important respects even more extreme than Scalia's (three modest examples: he is the only Justice who agreed with the government's position in the recent terrorism cases; he is the only Justice to have advocated for wholesale abandonment of the Court's post-New Deal commerce clause jurisprudence, a position that would drastically cut back on Congress's power to legislate; and he has indicated a willingness to wipe out most of administrative law as we know it).  And it's hard to imagine someone with views as extreme as Thomas's having much influence over his colleagues, however well-liked he may be.  So if a Chief Justice Thomas wanted to have any real influence over his colleagues, he would probably either have to moderate his views substantially, or resign himself to remaining an outlier.  (One caveat: Rehnquist's views were often well outside the mainstream at the time that Rehnquist joined the Court in 1972, and he frequently dissented alone.  But even Rehnquist never called for the wholesale rejection of stare decisis, the doctrine of adherence to previously-decided cases, as Thomas apparently has.)  Also, Justice Thomas did not enjoy the process of Senate confirmation last time (recall his "high-tech lynching for uppity blacks" comment), and one wonders whether he really wants to put Anita Hill and all the rest of it back on the nation's front pages.

This post is already too long.  But my point is simply this: the Chief Justice has only one vote, just like all the other Justices.  The factors that make someone an effective Chief Justice are intangible and difficult to predict in advance, but Scalia and Thomas seem unlikely to fit the bill.  And, of course, Rehnquist is already on record as wanting to overturn Roe v. Wade, so filling his seat with another anti-Roe partisan (like Scalia or Thomas) wouldn't much alter the balance on the Court on that or other hot-button issues.  So if Bush picks Scalia or Thomas, by all means pull out all the stops to derail the nomination.  But if the nomination is finally confirmed, smile quietly to yourself in the knowledge that Bush has spent a lot of capital on something that may help him less than he thinks.

Posted by David at 04:38 PM in Law and Lawyers | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The Next Chief Justice (part 2):


Ah, but what Bush may understand, that his father didn't, is that when you spend political capital on something your base approves of, and succeed, you get it back with interest. It only gets used up when you lose a fight, or use it to accomplish something your supporters disapprove of. So Bush can have his Thomas, AND be well positioned for the future confirmation fights.

Posted by: Brett Bellmore | Dec 8, 2004 6:05:50 AM

Overturn stare decisis?

WTF it's 1000 years old.

Posted by: Mimiru | Dec 9, 2004 10:04:08 AM

Actually, Mimiru, constitutional stare decisis is only 12 years old.

Outside of the consitutional context, it, of course, retains a long history.

Posted by: a | Dec 13, 2004 1:50:10 PM

The to-be-sure caveat, of course, gives the house away. Elevating Scalia or Thomas would probably give the new chief one more like-minded justice to work with. Tack on O'Connor's likely replacement, and even Scalia (whose divisiveness on the Court is WAY overstated in the linked Salon hit piece; what, no mention of how is best friend on the Court is the liberal Ginsburg?) could forge a working rightist majority. When Rehnquist was elevated he was viewed as an extremist outsider; now many think of him as a moderate conservative on this Court!

In the short run, however, I agree that it would be uncommonly silly for Democrats to expend whatever capital they have left to block a Chief Scalia or Thomas. Not because these men are (as suggested here) unlikely to be effective: With the exception of John Marshall, I'm hard pressed to think of any chief justice who, by himself, was instrumental in forging the jurisprudential direction of their courts. What matters in the end is the number of robes, not the guy who holds the gavel. And because a Rehnquist retirement means a push for the left and the right on this Court, it's no big deal for liberals if a conservative replaces this conservative. (I know, I know. The Chief assigns opinions at conference. So what?)

My point it this: in the grand scheme, it doesn't matter who's chief. At all. The Democrats would be retarded to make hay out of a Thomas or Scalia elevation.

Alas, the Democrats take their marching orders from Ralph Neas and Eleanor Smeal, and these unsavory characters can't afford to let any Republican nomination pass without an ugly and demeaning fight. (How else can they get their benefactors to pony up to pay their salaries?) Seeing as how both Thomas and Scalia are both eminently qualified to be Chief, the Democrat's hysteria will be seen as the over-reaching that it is. Watch Reid try to explain to voters why Thomas is an embarrassment! The real embarrassment will be when the Dems show (again) that they've been captured by the specialest of special interests. Bush and Rove can't wait to tap Thomas and watch the meaningless bleeding of the Left begin.

Posted by: D.J. | Dec 13, 2004 7:29:29 PM

You forget that in addition to the court work, the Chief Justice is also considered the top administrator of the U.S. federal court system, and what the CJ says to Congress helps determine how much budgeting and staffing the federal court system gets, in addition to matters affecting the functioning and jurisdiction of federal courts (sentencing guidelines, etc.) So you not only need a good legal mind to be Chief, you need to be a good administrator. On this score, both Thomas and Scalia have substantial administrative law experience. However, as someone who thinks that Congress passes way too many laws as is, the idea that Thomas would work to "wipe out most of administrative law as we know it" intrigues me...

So Thomas for CJ it is. The collective apoplexy it would inflict on the Dems is more than enough to make it worthwhile.

Posted by: Thief | Dec 14, 2004 5:54:12 PM

The comments to this entry are closed.