Strengthening Constitutional Self-Government

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Scalia again

Nicholas Thompson joins the swelling chorus of voices urging the nomination of Antonin Scalia as Chief Justice. His wrinkle?

If the religious right is salivating over the prospect of Scalia as chief when the seriously ill William Rehnquist retires, accede. Just demand that the president nominate a moderate associate justice in return and threaten filibuster and gumming up of the Senate in other ways if the deal falls through. This would be better than an even-up trade, since replacing Rehnquist’s slot with Scalia, and Scalia’s slot with a moderate, would ultimately swing some 5-4 decisions away from the conservatives.

This will never happen, I say hopefully. Even if Scalia is elevated to CJ, the Bush Administration will never cut that kind of deal with the Democrats, I say hopefully.

The article does contain a glimmer of hope that some liberals are coming to their senses about the judicial protection of abortion:

Scalia is also a federalist and, as Democrats are quickly starting to realize, federalism is nectar to the federally powerless. Oklahoma can pass whatever reactionary laws it wants, while New York passes the opposites. In a worst-case scenario, the right could overturn Roe v. Wade and see abortion banned throughout the South; but that wouldn’t mean blue states would have to follow suit. Scalia has sometimes abandoned federalism (and other principles) when he’s got big political or personal fish to fry. But it would require serious contortions for him to shun the 10th Amendment here. "If a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law," Scalia has said. There’s no reason not to take him at his word on that.

And then there’s this:

The last reason Democrats should support Scalia is the most important and the most complicated: He’s smart.

The high court has long been viewed by many as a bunch of political hacks who only got there because the president considered them pliant or sought to reward blind loyalty. That view coexists uneasily with the image of justices as the sage interpreters of our nation’s laws—who got there because they’re the wisest people in the land. Lately, the political-hack view has dominated, and that’s a bad thing. Counterintuitive as it may seem, Democrats should work toward establishing a respected court, even if it’s still dominated by GOP appointees.

If citizens believe that the grandest interpreters of our laws are merely black-robed political partisans, it’s easier for the administration to treat them that way: The White House can choose candidates based on how loyal they are and how well they’d help the GOP in future elections. That’s the way it is now, and that’s why we’ve reached the peculiar situation in which Gonzales is a more likely nominee than, say, Richard Posner or Frank Easterbrook—conservatives who are also among the smartest appellate judges in the country.

Scalia’s elevation would be a useful tonic. He thinks through issues logically and, unlike Thomas, he asks tough questions during hearings and writes terrific opinions. In the recent decision United States v. Booker and United States v. Fanfan, striking down congressionally written mandatory sentencing guidelines, while allowing judges to continue to consult them, Scalia’s opinion is by far the most readable and logical. Scrapping the key elements of the sentencing regime but keeping the rest is "rather like deleting the ingredients portion of a recipe and telling the cook to continue with the preparation portion," he wrote.

Scalia is a conservative and an originalist, yes, but his core ideology is, and has always been, legal clarity. In the short term, this might seem bad for Democrats. The upshot of the Booker decision, for example, is a muddled decision liberals can fall in love with. The Washington Post editorialized that the decision "did not produce an entirely coherent result from a legal scholar’s point of view, but as a policy matter the outcome was the best that could have been expected."

That’s OK, as far as it goes. But if the Supreme Court sees its mandate as making good policy decisions that are logically muddled, Democrats are sunk in the long term. Many of the court’s future issues will come directly or indirectly through actions taken by the large Republican congressional majorities. With that likely docket, Democrats should attempt to seat a conservative court whose polestar is logic, as opposed to a court whose polestar is the White House.

While I suspect that Thompson wouldn’t be writing this if President Kerry (shudder!) were contemplating elevating a liberal judge or Senator to the Supreme Court, but would be supporting the results-oriented jurisprudence he professes to disdain here, I will offer him provisional membership in the club of those favoring judicial restraint and a respect for constitutional principles and provisions. If he stays long enough, he may actually join the inner circle of "originalists."

Discussions - 4 Comments


Tell ya what, pal. Why don’t you go back to the Daily Kos, or the Democratic Underground. I’m sure you can read all about it there.

Back to the topic of the post, I thought Nicholas Thompson’s arguments were well-reasoned and correct. I am not a liberal, but if I were, I would certainly favor either Scalia or Thomas for Chief Justice, and would save up my limited political capital for the open seat on the court. Judging by Harry Reid’s recent action, I think it is safe to say that they are not following that path. Well, good for us, I guess. Go ahead, Senator Reid. Spend the little capital you have (and after this election, with a 55-44-1 ratio, it is very little) trying to stop Scalia or Thomas from switching roles. Then, if you are succesful (which, frankly, is not likely), we can watch Michael Luttig coast through instead.

There’s only so many times you can play obstructionist. And if you do it to Thomas or Scalia, you will end up with Luttig, or McConnell, or someone else who makes the court more conservative. Is that what you want? Or are you really that short-sighted?

Are you joking Moe? Of course they are that shortsighted. Why else would Harry Reid be on the anti-Thomas offensive? Why else would the party be looking to Barbara Boxer for leadership? Why consider Dean as chairman?

How many times do these people have to lose before they realize that a liberal retrenchment will not help them?

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