Steven Lubet, professor of law, wrote this piece, which originally appeared in New York Newsday, Jan. 3.
If the Ailing Rehnquist Steps Down, Senate Democrats Might Be Inclined to Prevent Scalia's Ascension; Here's Why They Shouldn't
Chief Justice William Rehnquist is battling thyroid cancer, causing many observers to wonder whether he might be about to leave the U.S. Supreme Court. He has not attended court sessions since late October, and his office recently announced that his participation in future cases may be limited to situations where his vote is necessary to avoid a tie.
The burning question, of course, is who would succeed Rehnquist as chief justice. While many names have been floated, President George W. Bush has repeatedly expressed his admiration for Associate Justice Antonin Scalia, who strongly shares his conservative philosophy on issues from abortion to affirmative action to the relationship between the federal government and the states. The prospect of Scalia as chief justice sends most Democrats into a near panic, fearing that a court dominated by his jurisprudence would be a disaster for progressive concerns such women's rights, workers' rights, environmental protection and a host of other mainstream interests.
Many liberal advocacy groups are ready to demand the filibuster of a possible Scalia appointment, which is the only way he could be defeated in the Senate. But that would be a mistake. The filibuster is a scorched-earth tactic that cannot be used endlessly, and it would be better to hold it in reserve than to use it in Scalia's case. In fact, liberals (like me) might almost welcome Scalia's nomination as chief, for at least the following reasons:
It won't make much difference. While the title is impressive, the chief justice actually wields relatively little power. In addition to substantial administrative responsibilities, and some ceremonial duties, the additional authority of the chief is limited. He presides over presidential impeachments, he presents an annual State of the Judiciary report, and he sets the agenda for the justices' conferences. When it comes to deciding cases, however, the chief only has one vote, the same as every other justice. (He also assigns opinions in cases where he is in the majority, but he has no clear- cut influence over how they are written or whether the other justices concur.) Whether or not he becomes chief justice, Scalia will remain on the court, so his elevation would have no great impact on decisions.
He won't be very effective. Some chief justices, such as Earl Warren, have been masterful coalition builders, persuading colleagues to join them in landmark rulings. That sort of leadership can occasionally change the direction of the entire court, but it requires political skills that Scalia has never displayed. Instead, Scalia is famous for his sharp intellect and his sharper pen. He does not take well to disagreement, even from the other justices, whom he has often criticized in stinging terms. In one case, for example, he referred to Justice Sandra Day O'Connor's position as "irrational." In another, he accused six of his colleagues of "taking sides in the culture war" by adopting the "homosexual agenda." His stewardship would likely lead to a fractured court, which could be the liberals' best hope to avoid an out-and-out shift to the extreme right.
He might change his ways. There is a possibility that high office will have a moderating influence. Faced with the job of unifying the court, and the ever-present question of his "legacy," Scalia might find himself drifting toward the center. In the past, he has reveled in dissent. But no previous chief justice ever staked his reputation on dissenting opinions, and Scalia might not want to be the first. In that case, we could expect to see fewer flights of right-wing ideology and more emphasis on pragmatic solutions - a result that liberals should applaud.
Republicans control the White House and the Senate, so it would take a wrenching filibuster to prevent Scalia's confirmation as chief justice. Democrats probably have enough votes to sustain a filibuster, if pushed by their constituencies, but only at enormous political cost.
It would make far more sense for liberal activists to concede Scalia's elevation to chief, and save the filibuster for his replacement as an associate justice. That person would almost certainly have more immediate impact on the court. To invert an old saying, we can tolerate the "devil we know;" it's the "devil we don't know" who can cause real trouble.