Wednesday, May 04, 2005

Chief Justice

There's speculation that Deep Throat intends to retire next month at the end of the current Supreme Court term:
In anticipation that Rehnquist's resignation could come at the end of the Supreme Court's current term, politicians, interest groups and lobbyists are girding for a nomination battle for an open Supreme Court seat even before knowing if one might occur or whom President Bush might nominate.
. . . .
Much of that speculation centers on the high court's two most conservative members, Clarence Thomas, 56, and Antonin Scalia, 69, both of whom Bush has praised as model judges.

Less frequently talked about is O'Connor, whose age and health, Schwartz said, leave her an unlikely choice for a president who wants to leave his mark on the high court for a long time.

Although the White House has refused to comment, other top contenders for chief justice that have been reported to be on various administration short list include J. Harvie Wilkinson, 60, and Michael Luttig, 50, both of whom are on a federal appeals court based in Richmond, Va.; Samuel Alito Jr., 54, of an appeals court based in Philadelphia; John Roberts, 50, on an appeals court in Washington, D.C.; and Michael McConnell, 49, on a Denver-based appeals court. All are said to be as conservative as Rehnquist.

Link. Apparently the Supreme Court nomination battle is the elephant in the filibuster controversy room. From a political standpoint, I don't see how Rehnquist's replacement can make much of a difference: she'll be a conservative who take's Rehnquist's place in the "conservative bloc" next to Scalia and Thomas, just to the right of Kennedy and O'Connor. On the other hand, looking at the Supreme Court from a political angle is misunderstanding it.

I went to a panel discussion last week at the National Constitution Center called "Judging the Court: Looking Back at the Rehnquist Court." The panelists were con law bigwigs and the moderator was my con law prof, Nate Persily. In thinking about what they discussed, I came to a couple conclusions:

(1) "Conservative" in Supreme Court terms doesn't mean the same thing as it does to the Republican Party. It doesn't have to do with your views on abortion or gay marriage or the death penalty, or even whether you prefer smaller government or lower taxes. The conservative SCOTUS justices are the ones who interpret the Constitution "strictly," meaning according to anything from literal dictionary definitions to the intention of the framers in 1787. It has more to do with the way they balance the Necessary and Proper clause against the Tenth Amendment than it does with their campaign contributions. More often than not, this interpretation aligns with what most people think of as conservative political aims. But sometimes it can produce counterintuitive results--which it may well do in Raich v. Ashcroft, the medical marijuana case, when conservative justices have to balance the federal policy of being tough on drugs against the state's right to set its own, more liberal policy regarding pot.

(2) Scalia would make a terrible Chief Justice, and not just because I disagree with almost everything that comes out of his pen. He's certainly an astute intellectual and the biggest personality on the Court, but he's no manager. One thing that's been great about Rehnquist, who is almost but not quite as conservative, in both senses, as Scalia, is that he can actually manage the Court. He keeps the trains running on time. If you take the word of esteemed former clerks for it, he's got the Court--which, by the way, represents the longest period the same slate of nine justices has been together--working like a machine: the justices vote, he (or someone else, if he's not on the winning side) assigns the writing of the opinion, and the opinion gets written. No finagling, no day-long debate--not that those are bad things, but Rehnquist, my Arizona homeboy, my fellow Stanford alum, perpetrator of the Great Panty Raid of 1947, just wants to get things done. A Scalia Court would be a mess because Scalia would never stand for such mindless efficiency, nor, importantly, would he stand for the wheeling and dealing of, say, the Warren Court. Scalia is a lone wolf. Anytime the Court doesn't go his way, he files a dissent, often joined just by himself, arguing circles around everyone else, and sometimes being a dick in the process. Even when the Court does go his way, he might file a concurrence, arguing circles around everyone else, and sometimes being a dick in the process. He seems to look down on the other justices, and that's no way to get them to vote your way. To paraphrase William Brennan, as Nate Persily says, the most important thing for a Supreme Court Justice, especially the Chief Justice, to remember is this: 5. Get five votes, and you win. To Scalia, his is the only vote that should count.

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Anonymous Anonymous said...

I disagree with your characterization of Scalia completely. To call him a "dick" is just immature, especially because he probabaly would think no higher of you if you were to meet. Do you also agree with that idiot NYU law student's actions, think that is appropriate? I am graduating this May so it's been 2 years since I had Persily, but please don't take everything the man says as if it's some sort of gospal. He's in his early 30s and has never even clerked for the Supreme Court even though he clerked on the D.C. Circuit (presumably he had interviews with the justices because of his grades, EiC of the stanford law review, etc. but was nonetheless denied a clerkship with them - maybe because of personality/arrogance or maybe because his level of thinking were not quite on par with other potential clerk's when they quizzed him on proverbial issues of how to approach certain constitutional problems). Ah 1Ls, so innocent to believe everything that comes out of a professor's mouth. I guess it's not your fault completely since he is probably your first exposure to constitutional issues, making him more likely to leave impressionable thoughts in your head.

7:04 PM  

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