At dinner not long ago with a group of Washington insiders, a mixture of conservative Republicans and moderate Democrats, I was astounded to hear several of my companions predict that either Antonin Scalia or Clarence Thomas might be picked to succeed William Rehnquist as chief justice of the United States.
Is it possible that one of two of the most controversial and unrelenting conservatives on the Supreme Court could be nominated for this enormously important job? It is, the insiders said, and what is more, some of those closest to the situation opined that it would happen.
Talk about waving red flags in front of bulls, I said incredulously, and was promptly reminded about who won the presidential election and with whose help. The attitude from my conservative dinner companions was one of resolve to do what they pleased. A former Democratic senator sitting next to me shrugged and muttered something about that being the way of political victors _ rape, burn and pillage, he grinned.
With Rehnquist’s health so precarious that he may never return to the bench, the chances are the next biggest fight outside of Iraq will take place over his replacement before the New Year is terribly old. Liberals already are girding for that battle, clogging the Internet with somewhat hysterical warnings that the nation faces impending doom unless all forces are brought to bear against the Philistines of the Right. At the top of their list of concerns is abortion with emotional issues about flags and gay marriage and schools and religion in public life close behind.
From a numbers standpoint, they have a right to worry. Several of the nine justices are in their 70s or 80s and could retire during the next four years of the Bush administration, giving social conservatives the opportunity they have been waiting for almost since the days of Chief Justice Earl Warren _ a court where the balance is heavily tilted their way. But why Scalia, a brilliant but irascible ideologue whom liberals despise and whose ethics have been challenged of late, or Thomas, who seems generally to follow Scalia’s lead and whose opinions have never been considered particularly noteworthy in style or substance?
Those who follow the court closely note that Scalia’s nomination to head the court would please President Bush’s conservative base, including the so-called Christian Right, like no other. There is little question that elimination or substantial modification of Roe v. Wade, the law of the land on abortion, would be at the top of the agenda if either Scalia or Thomas were selected and approved. Thomas, who maintains a low profile in public, has a loyal following and, according to court watchers, is well liked by his fellow justices. Probably unfairly, he has never been popular among his fellow blacks largely because of positions on issues like affirmative action that they believe are detrimental to their welfare. He simply doesn’t fit the political profile blacks assume is best for them.
Either of these justices could be expected to face enormous opposition in the confirmation process, including filibusters that would require 60 votes to break unless Republicans are successful in changing the rules on cloture. Scalia, for instance, would be subjected to rigorous questioning about his connections to the White House and his refusal to recuse himself from a case involving Vice President Cheney who has been a hunting partner. Thomas, whose life was changed dramatically by confirmation hearings for his original nomination to the court, might think twice about going another round in a Senate that allowed outlandish, silly and made-up accusations about sexual harassment in the work environment.
Whether my dinner companions, all men of stature and political astuteness, are correct in their predictions is pure conjecture, albeit somewhat more educated than most. But whoever is nominated can be expected to lead the court away from the center toward a strict constructionism in interpreting the Constitution. There are any number of jurists or even politicians (that, after all, was what Warren was) who fit the mold and anyone of them can anticipate finding himself or herself in the kind of brawl that has demeaned Senate confirmation hearings in the past.
We can only hope that Americans won’t be treated to another offensive spectacle of the Thomas variety no matter who is nominated. The liberals should conduct themselves far more decorously than they have. But don’t bet on it; for them, the stakes are too high.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)