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Miscellaneous thoughts and ramblings
Monday, November 08, 2004
Next Chief Justice
Something Specter said the other day about knowing before the election that Rehnquist's condition was worse than had been let on got me thinking. There's been a lot of talk about new nominees to the Supreme Court, but I haven't yet heard speculation on Rehnquist's replacement as the Chief Justice. I'm no expert on the Court, but it seems to me that Bush's best option is Justice Thomas.

You've currently got the triumvirate of conservative justices: Rehnquist, Scalia and Thomas. Bush has already stated that Scalia and Thomas are his model Justices. Of the two, Scalia is the more controversial among the masses... although he's considered the panacea among hard-core conservatives. I think Scalia could yield an early battle in the Senate that wouldn't be a good way for Bush to start his second term.

Thomas is also very conservative (and the youngest member of the Court at 56), but not as much of a firebrand (Anita Hill aside) as Scalia. He's also... wait for it... black. It think that turns it around on the Democrats. Their only choice in opposing his nomination is to filibuster. Do they really want to dig in on a filibuster in appointing a black Justice to the highest judicial office in the land?

Bush's other options:

The Liberal Triumvirate:

Stevens: Too old, too liberal.

Ginsberg: NOT (too liberal)

Breyer: See Ginsberg.

The Moderate Triumvirate:

O'Connor: Would be a safe center-right choice, but she's too old.

Souter: Won't make the same mistake his dad made. The most liberal of the three.

Kennedy: I guess Kennedy is really the only other choice. Reagan appointee (so no bad blood as with Souter). Ideologically, he's right around O'Connor's neighborhood. He's also reasonably young by current court standards (66), and has more tenure than Thomas. I believe he's been to the left on abortion decisions. I think his nomination would therefore alienate the base.

To reiterate, I'm no legal scholar. I watch the Court with the interest of a layman, and it's likely that my observations are pretty superficial.

Still, while the appointment will be one of governance, it will be necessarily political as well. My hunch is Thomas. I think the public endorsement (in the debates of both Thomas and Scalia) told us his preference in no uncertain terms. The Democrats and the media will want Kennedy, but will have difficulty opposing a black man to one of the most powerful positions in the nation.
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