Summer Coming for the Court

It'’s the end of the Supreme Court's term, and they are releasing opinions like crazy. I'm told that it is common for the Court to release many opinions right before the end of the term, and I am not going to try to keep up. There are currently seven opinions that I haven't even read yet, and I think I'll leave them for now. At least until the Court goes into recess.

It's summer for the court. It is almost sure that Chief Justice Rehnquist will be retiring because of health problems, so keep an eye out for news about who will replace him on the Court. This means that George Bush will have the opportunity to put someone new on the Court and name someone as chief justice. It is by no means a rule that the new chief justice must be a previous member of the Court, Chief Justice Earl Warren was given the position directly from (I believe) governor of California.

Who will be the next chief justice?

The justice with the most seniority is Justice John Paul Stevens. Stevens is easily the most liberal justice on the Court. There is absolutely no way that President Bush will name him as chief justice. President Bush will put a conservative in the position. This leaves him with three viable options of those that are currently on the Court, each with their own problems.

1. Antonin Scalia: President Bush has said on a number of occasions that he would like to nominate someone who applies a "textualist" interpretation of the Constitution, something that Justice Scalia has often advocated, and even to some extent created. There are some hints that Scalia either knows something that we don't, or just really wants the position. He has been speaking more regularly than he has in the past, something that most judges (and especially those on the Supreme Court) generally avoid (though he has avoided doing so less than others in the past). Scalia is exactly the kind of judge that Bush wants on the Court, and I would be somewhat surprised if he passed up the opportunity to promote him.

However, Scalia would be a tough sell to Congress. It's true that Bush could probably get anyone he wants because Republicans control both the House and Senate, and have no possibility of using a filibuster without inviting the 'nuclear option,' but Scalia is accused of being an activist judge on the conservative side as much as any liberal judge is on the liberal side. Scalia is absolutely opposed to any right to privacy, often stating 'if you want a right to privacy, pass an amendment.' Democrats would do anything to keep him from being promoted.

2. Clarence Thomas: Justice Thomas is the next most conservative member of the Court, and certainly comes out on the side that Bush would want his chief justice to, but Justice Thomas comes with his own problems. Thomas has somewhat of a spotty past in terms of women and activist groups, but these are hardly issues that Democrats have a right to be judgmental about. Thomas' real problem with congressional Democrats would be with his civil rights record. He has consistently come down against civil rights, conspicuously on racial issues. Thomas is against affirmative action, feeling that he was done a disservice in college by its stigma, and (for example) in the last two weeks has twice been the lone dissenter in cases dealing with racial bias in jury selection. This is nothing new, and congressional Democrats would have no problem digging up all of his anti-civil-rights opinions and using them against him.

3. Sandra Day O'Connor: Justice O'Connor is the third most conservative member of the Court, but is considered to be more of a moderate than anything else. If Justice O'Connor were nominated to be the newest chief justice she would probably be passed overwhelmingly by Congress. The only real sticking point with Democrats would be her position on religion. O'Connor advocates a position on religion recognizing "ceremonial deism," which evaluates religion in government and schools by considering that the ceremonious aspect of religion neutralizes its offensive aspect. For example (and this is speculation here), "under God" in the pledge of allegiance, praying before legislative session, and some incarnations of the Ten Commandments would be acceptable in her view. President Bush would most likely choose someone from outside the Court before O'Connor because this is his chance to put an extreme conservative in the position, but in my view, the Court would probably be best off if Justice O'Connor were the new chief justice; powerful moderates in the judiciary are always a good thing.

As I said before, there is no rule, written or otherwise, that promotions to chief justice must come from within the Court, so it is quite likely that Bush will choose someone from outside. As far as who he will pick to fill the empty spot, you can bet it will be a fire-breathing conservative, a-la Alberto Gonzales, but I really have no idea who it would be. Alberto Gonzales had enough trouble getting through the process to be Attorney General, and his memo on torture would most likely sour any possibility for a Supreme Court nomination, but it all depends on how much Bush is willing to put into it.