A visitor to the United States Supreme Court on Monday Dec. 13 would have seen the ultimate judicial nightmare for many Democrats, Associate Justice Antonin Scalia presiding over the high court.
It was the court’s last session of the year, held to announce decisions in several cases.
With Chief Justice William Rehnquist still recovering from thyroid cancer and unable to preside, and the next two most senior justices, John Paul Stevens and Sandra Day O’Connor, absent, it was up to Scalia to run the proceedings, just for one day.
That single day, liberal groups fear, could be a preview of a 15- or 20-year stint for Scalia, if President Bush nominates him to be chief justice when Rehnquist steps down.
All indications in Washington from both liberal and conservative advocacy groups are that the likely vacancy and the Senate confirmation will spark a grass-roots mobilizing battle that will rival in intensity the presidential campaign just ended.
The campaigning has already begun in earnest.
Conservatives love Scalia
While the president is not bound by law or tradition to elevate an associate justice to the chief justice’s position if it becomes vacant, Scalia is the favorite of many conservatives because of his spirited dissents from Supreme Court rulings upholding legal abortion, striking down racial preferences in government contracting and calling for allowing prayer at public school events.
Scalia thinks the justices should adhere to the text of the Constitution and not stretch its provisions to justify innovations not thought of by the Framers, such as same-sex marriage.
He has a penchant for pithy expression: "Under our Constitution there can be no such thing as either a creditor or a debtor race," he wrote in a 1995 racial preferences decision. "In the eyes of government, we are just one race here. It is American."
Scalia booster Kevin Ring, a Washington attorney and former counsel to John Ashcroft when he served in the Senate, has edited "Scalia Dissents," a collection of the justice’s most pungent opinions since he was appointed to the high court by President Reagan in 1986.
Nominating Scalia for the Rehnquist seat even before the chief justice left it, Ring said in a Washington Times opinion piece last month that Bush must “send into that battle (with liberal Democrats) the brightest, most articulate defender of the conservative judicial philosophy.”
Ring argued that Scalia’s record as a justice “will appear commonsensical to the citizens of Red State Nation. Is Sen. Ben Nelson, Democrat from Nebraska, going to oppose Justice Scalia's elevation because Justice Scalia defended Nebraska's perfectly constitutional law prohibiting live-birth abortions?”
But Ring acknowledged in an interview Monday that Scalia's age — he'll turn 69 in March — will be a substantial factor weighing against him. Bush might be inclined to select a younger chief justice who could serve for 30 years.
'He is so divisive'
Fearing the worst from their point of view, the anti-Scalia advocates already have their arguments well rehearsed.
Kim Gandy, president of the National Organization for Women, said last week, “I hate to give them any ideas, but Scalia would probably be the least effective choice out of that crowd for the Bush administration, strange as it may sound, because he is so divisive. He is so disrespectful of his fellow and sister justices on the court. The level of disdain for the other justices in his opinions comes through loud and clear. I’m not sure how they would take being herded by someone who had such disdain for them.”
Some observers here in Washington puzzled over Senate Democratic Leader Harry Reid’s recent statement that he could accept Scalia — whom he called “one smart guy” — as chief justice.
By inviting Bush to nominate Scalia as chief justice, did Reid bet that putting Scalia’s combativeness on display during his confirmation hearings would turn the public and senators against him?
Or was he figuring that, if confirmed, Scalia would prove a chief justice who could damage a conservative jurisprudence?
Loyola Law School professor Rick Hasen made the latter argument recently, saying, “Scalia would likely make a weak chief justice. Scalia may be ‘one smart guy,’ but he is not a consensus builder. Far more than anyone else on the Court, his opinions (particularly his dissents) are caustic and nasty. He likely would not be effective in managing a cohesive conservative court.”
The liberal group People for the American Way has published a 60-page briefing book making its case against both Scalia and his colleague Clarence Thomas.
“Scalia’s entire 18-year Supreme Court record — including his temperament, his ethically questionable conduct, and his consistent tendency to allow his ideology to remake the law — would make a compelling case for his rejection by the Senate,” said PFAW president Ralph Neas, who led the effort to scuttle the nomination of Robert Bork in 1987 and who will play a key role in the upcoming fight.
Hunting ducks with Cheney
Neas’ reference to “ethically questionable conduct” concerns a duck hunting trip that Scalia took to Louisiana last January along with his friend Wallace Carline, Vice President Dick Cheney, and several others.
Scalia, his son, and his son-in-law flew to Louisiana with Cheney on a government plane.
The Sierra Club and Judicial Watch had sued Cheney over the closed-door meetings of an energy policy task force that he headed in 2001. After the hunting trip, the Supreme Court agreed to hear that case and the Sierra Club asked Scalia to recuse himself.
In a memorandum explaining why he would not recuse himself, Scalia said he never hunted in the same blind with the vice president and “of course we said not a word about the present case.”
The public, he added, ought not assume that Supreme Court justices are “corruptible by the slightest friendship or favor. ... If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined.”
Right now, most of this country is oblivious to all the pro- and anti-Scalia rhetoric. Last week’s NBC News/Wall Street Journal poll found that 72 percent of the respondents either did not know who Scalia was or had no opinion of him.
But if most Americans don’t know Scalia now, if he is nominated and they watch him during his Senate confirmation hearings, will they decide he is a good choice for chief?
It is oddly fitting that Scalia himself has complained about the increasingly partisan and playing-to-the-crowd nature of the judicial confirmation process.
In 1992, in his dissenting opinion in Planned Parenthood vs. Casey, which upheld the 1973 Roe vs. Wade abortion decision, Scalia said if the Supreme Court is to become a representative body that is expected to reflect majority opinion, then confirmation hearings will "deteriorate into question-and-answer sessions in which Senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them."
If the court has become a super-legislature, then, Scalia said, “We can have a sort of plebiscite each time a new nominee to that body is put forward.”
And if Scalia is nominated to be chief justice, it will be a sort of plebiscite; not a debate over whether he’s qualified, because, after all, the Senate unanimously confirmed him in 1986, but a struggle over his decisions and dissents on abortion, the death penalty, racial preferences and the exercise of religion.