Came across an interesting article about the possibility of Scalia replacing Rehnquist as Chief Justice if Rehnquist decides to retire. The article is a bit dated, being from November 2002, at a time when many were speculating that the Chief Justice would retire after that term expired in Summer 2003. Obviously that did not happen. It seems highly unlikely that Rehnquist would retire this summer, since it is an election year and he would not know who would pick his replacement.
For Supreme Court watchers like me, this is the equivalent of sports fans discussing who their team is going to release and who they might pick up in free agency or in the draft to replace them. Rehnquist is now 79 years old and has been on the court for 32 years. Scalia was originally nominated to fill Rehnquist's seat as Associate Justice when he was nominated to replace Warren Burger as Chief Justice in 1986. Likewise, should he retire, there will be two vacancies to fill and thus two confirmation hearings for the senate to attend to. It seems unlikely that Rehnquist would retire after this term since it is an election year and he would have no guarantee that he would be replaced by Bush. But if he stays on past this year, and a Democrat is elected, it is almost inconceivable that he would hold on for another 4 years to hope for another Republican to be elected to control who would replace him on the bench. That would make him at least 84 by then, with still no guarantee that he might not have to wait another 4 years beyond that. That's exactly why there was so much speculation that he would retire in 2003, to avoid this type of scenario.
Assuming Bush stays in office, who is likely to replace Rehnquist as Chief Justice and who is likely to replace his replacement as Associate? Well first it should be noted that he could actually do it with one person - nominate a person not on the court currently to be Chief Justice. Of those on the court currently, Bush would face a tough choice. The two most likely would be Scalia and O'Connor. Scalia is so outspoken and activist on the bench that there would be a long, protracted and bitter fight over his promotion in the Senata, something Bush would undoubtedly like to avoid. O'Connor, on the other hand, would probably breeze through the Senate confirmation process, but her nomination would likely upset Bush's conservative base because she is generally pro-abortion rights and moderate on many issues that they are very dogmatic about.
At the top of the list of potential nominees to the court is Alberto Gonzales, a White House counsel, Bush confidante, and former Texas Supreme Court judge. He would be the first Hispanic on the high court and he's not stridently anti-abortion, so he would be difficult for Senate Democrats to oppose.
As far as Scalia is concerned, I've made no secret of my disagreement with his pretensions to a consistent legal philosophy, but I also find him immensely fascinating for other reasons. He's a first rate thinker, no doubt about that. And the descriptions of him by those who have worked for him and observed him closely point to the kind of person I'd really enjoy being friends with - outspoken but fair-minded, doesn't suffer fools lightly, but with a sense of humor both about himself and the world. As Tony Mauro said in the above-referenced article:
Say it out loud a few times: "Chief Justice Antonin Scalia."It has the mouth feel of Scalia's favorite lunch at A.V. Ristorante, anchovy pizza and Montepulciano wine: bold, unexpected, and, to some tastes, hard to swallow.
I'd say that about sums it up.
Chief Justice Scalia - I like the sound of that
Well I suppose it has to sound good to someone. :)
The caveats you raise bear further investigation, Ed, but at first blush (sticking entirely to the alternatives you posited) I'd prefer Scalia, who appears to refer to the Constitution at least occasionally, to Sandra Day "International Law" O'Connor.
I think this furor over the Supreme Court referring to foreign courts has been entirely overblown. They did not base the Lawrence decision on a foreign court precedent, they only referred to foreign precedents as background. The founding fathers themselves often referred to legal principles and experiences in other countries. Is it really a reasonable argument that they found valuable ideas in the experiences of other nations, but from that moment on no foreign experience or principle could ever be helpful to anyone in the United States? Did the United States suddenly get transferred into a vacuum in 1800 and become too perfect to even consider whether other groups of people may have considered the same question and come up with a reasonable answer that we could learn from? Are we somehow so distinct from the European traditions that the founders themselves drew on so obviously that we shouldn't deign to even look in their direction? The reaction to this strikes me as little more than a kneejerk reaction based on xenophobic assumptions.
As far as Scalia is concerned, I'm sure you meant that facetiously. I doubt that Scalia "refers to the constitution" any more often than O'Connor. It's true that in rhetoric, at least, Scalia claims to stick closer to the original intent than do some of his colleagues, including O'Connor. Is that true in reality? I have some serious doubts of that, as I've expressed a few times elsewhere on this blog. I don't think that Scalia is any less likely than even those liberals at whom he aims such pointed derision to concoct an inconsistent legal basis to insure his desired outcome. But that is a separate question from whether he should be Chief Justice. I think it would at least be interesting to see what he would do as Chief Justice. In contrast to Rehnquist, I do like the fact that Scalia is willing to take a bold stand rather than making such narrow rulings that they are almost impossible to refer to as precedent in any other circumstance than the one they decide.