Nutty for Nino.

The law, lawyers, and the court.
Jan. 26 2005 3:34 PM

Nutty for Nino

Antonin Scalia for chief justice. Seriously.

Not such a bad choice for chief
Not such a bad choice for chief

The idea of Antonin Scalia as chief justice of the Supreme Court gives liberals the heebie-jeebies. To the left, elevating the deeply conservative justice would lead to disaster, death, and destruction. But they're wrong. A Scalia Court wouldn't serve as the commanding officer in the assault that turns blue-state America into a netherworld. If the left strategizes, a Scalia Court could turn the chief justice into the Colin Powell, or Paul O'Neill, of our judicial system: a bulwark against the fusillades coming from everywhere else.

The job of chief justice is one that people think means a lot but doesn't. The chief has a few ceremonial duties, like presiding over impeachments and swearing in the next president. Beyond that, he assigns who writes opinions when he's on the winning side of a decision. People think making someone a chief justice is like making him the coach of a football team: It means giving him power to draw up plays and to decide whether to go for it on fourth-and-one. But it's actually more like making him captain—giving him some hortatory powers and the choice of calling heads or tails at the pre-kickoff coin flip.

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What do canny people do when they see that something is overvalued? They trade. If your neighbor is salivating over your bicycle, swap it for his car. If the religious right is salivating over the prospect of Scalia as chief when the seriously ill William Rehnquist retires, accede. Just demand that the president nominate a moderate associate justice in return and threaten filibuster and gumming up of the Senate in other ways if the deal falls through. This would be better than an even-up trade, since replacing Rehnquist's slot with Scalia, and Scalia's slot with a moderate, would ultimately swing some 5-4 decisions away from the conservatives.

It is true that becoming chief justice would give Scalia a higher milk crate from which to preach. Newspapers would run profiles; television stations would quote him more; people would buy his book. But that's not as bad as you think. On many of the issues on which Scalia is an archconservative—and abortion is the key example—American minds are set, and they'd be unpersuadable by anyone on any milk crate, anyhow. Scalia will be able to talk and talk as chief, but he still won't get to vote twice in any case.

Scalia is also a federalist and, as Democrats are quickly starting to realize, federalism is nectar to the federally powerless. Oklahoma can pass whatever reactionary laws it wants, while New York passes the opposites. In a worst-case scenario, the right could overturn Roe v. Wadeand see abortion banned throughout the South; but that wouldn't mean blue states would have to follow suit. Scalia has sometimes abandoned federalism (and other principles) when he's got big political or personal fish to fry. But it would require serious contortions for him to shun the 10th Amendment here. "If a state were to permit abortion on demand, I would—and could in good conscience—vote against an attempt to invalidate that law," Scalia has said. There's no reason not to take him at his word on that.

Meanwhile, on the other crucial issues likely to come to the court—issues on which people haven't made up their minds, like those swirling around the war on terror—Scalia has actually been pretty good. And on the single most important such case of the past year, he was a stud. In Hamdi v. Rumsfeld, the Bush administration argued that it had the right to detain any American citizen, in this case, Yasser Hamdi, indefinitely in a Navy brig without charging him or granting him access to a lawyer. One hot chief justice candidate, Alberto Gonzales, was behind that policy to a large degree; another, Clarence Thomas, fully supported it. But Scalia said no way. In his view, the U.S. government had to either charge Hamdi with treason or release him promptly. "Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war," he wrote.

The last reason Democrats should support Scalia is the most important and the most complicated: He's smart.

The high court has long been viewed by many as a bunch of political hacks who only got there because the president considered them pliant or sought to reward blind loyalty. That view coexists uneasily with the image of justices as the sage interpreters of our nation's laws—who got there because they're the wisest people in the land. Lately, the political-hack view has dominated, and that's a bad thing. Counterintuitive as it may seem, Democrats should work toward establishing a respected court, even if it's still dominated by GOP appointees.

If citizens believe that the grandest interpreters of our laws are merely black-robed political partisans, it's easier for the administration to treat them that way: The White House can choose candidates based on how loyal they are and how well they'd help the GOP in future elections. That's the way it is now, and that's why we've reached the peculiar situation in which Gonzales is a more likely nominee than, say, Richard Posner or Frank Easterbrook—conservatives who are also among the smartest appellate judges in the country.

Scalia's elevation would be a useful tonic. He thinks through issues logically and, unlike Thomas, he asks tough questions during hearings and writes terrific opinions. In the recent decision United States v. Booker and United States v. Fanfan, striking down congressionally written mandatory sentencing guidelines, while allowing judges to continue to consult them, Scalia's opinion is by far the most readable and logical. Scrapping the key elements of the sentencing regime but keeping the rest is "rather like deleting the ingredients portion of a recipe and telling the cook to continue with the preparation portion," he wrote.

Scalia is a conservative and an originalist, yes, but his core ideology is, and has always been, legal clarity. In the short term, this might seem bad for Democrats. The upshot of the Booker decision, for example, is a muddled decision liberals can fall in love with. The Washington Post editorialized that the decision "did not produce an entirely coherent result from a legal scholar's point of view, but as a policy matter the outcome was the best that could have been expected."

That's OK, as far as it goes. But if the Supreme Court sees its mandate as making good policy decisions that are logically muddled, Democrats are sunk in the long term. Many of the court's future issues will come directly or indirectly through actions taken by the large Republican congressional majorities. With that likely docket, Democrats should attempt to seat a conservative court whose polestar is logic, as opposed to a court whose polestar is the White House.

With a Democratic president or a Democratic Senate, liberals could have afforded to demand someone preferable to Scalia. But they don't have either, and they might not for a while. Liberals can wait, evince impotent outrage when Bush nominates someone, then play their familiar role of the palooka, or they can make Scalia-flavored lemonade. One thing is certain: After a scuffle, Bush's nominee will end up on the court, regardless, and the left will have garnered nothing, unless it thinks in terms of bargains.

Having a moderate associate justice and Scalia as the new chief will sting from time to time. But there are plenty of vastly worse possibilities, and the White House is likely mulling them all over right now.

Nicholas Thompson is a senior editor at Legal Affairs.

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