TCS Daily

Draft Scalia?

By Ryan H. Sager - December 15, 2004 12:00 AM

Whoever thought there'd come a day when the Democrats would launch a "Draft Scalia" campaign for Chief Justice of the United States?

Yet, amazingly, that's just what's happening.

The campaign hit the news on December 5, when incoming Senate Minority Leader Harry Reid went on NBC's "Meet the Press" and discussed possible scenarios should Chief Justice William Rehnquist, who's currently undergoing treatment for thyroid cancer, retire in the near future.

Scalia "is one smart guy," Reid told Tim Russert. "I disagree with many of the results that he arrives at, but his reason for arriving at those results are very hard to dispute."

That got the attention of some people in Reid's party. "Outrageous," fumed Rep. Jesse Jackson Jr. "Ethics issues alone" should keep Scalia on the back bench, yelped the president of the liberal Alliance for Justice, Nan Aron.

Apparently, these folks missed Reid on NPR on November 19, when he first floated the Scalia trial balloon. "If [the Bush White House], for example, gave us Clarence Thomas as chief justice, I personally feel that would be wrong," Reid said. "If they gave us Antonin Scalia, that's a little different question. I may not agree with some of his decisions, but I agree with the brilliance of his mind."

And there, of course, is the rub. It's not likely we'd be seeing the nation's top Democrat giving big, sloppy kisses to one iconic conservative Supreme Court justice unless the purpose were to make a cuckold of another. Apparently, the Democrats are so terrified that President Bush will nominate Justice Thomas to helm the court that they're slyly offering up a smooth confirmation should Scalia be tapped instead.

What an odd spectacle. And what an odd admission. It's hard to avoid the obvious conclusion: Bush's habit of appointing qualified minority candidates for top spots in his administration is having a profound effect on American politics -- or, at least, top Democrats seem to believe it is having such an effect.

Thomas' appointment would fit a natural progression. Appointed by the first President Bush in 1991, Thomas has since become a leading champion on the court of strict construction of the Constitution. Asked what kind of judges he would appoint in the future, Bush has consistently held Thomas (along with Scalia) up as an example.

Nothing would be less surprising than for Bush to seek to elevate this man.

And how similar this is to Bush's relationships with his two most prominent minority cabinet appointments to date, incoming Secretary of State Condoleezza Rice and incoming Attorney General Alberto Gonzales.

These are not token candidates. Bush is not using them as instruments to paint a cabinet that "looks like America." These are his confidants. These are the people he trusts. These are the people he respects.

How devastating it would be to the Democratic Party, its leaders are now seeing, were it to be a Republican president to appoint the first black chief justice in our nation's history.

No one should be fooled into thinking that the upcoming nomination and confirmation battle -- and it is likely upcoming, as Rehnquist regrettably cuts back on his court-related work day-by-day -- is about ideology or judicial temperament. Bush was reelected with a mandate, and a large Republican majority was sent to the Senate. The chief justice is going to be conservative, and pretty darned conservative at that, one way or another.

We're in symbolism territory now. Which is not without its ironies.

In their quest to deny a qualified black candidate a job, the Democrats risk installing a tremendously effective Chief Justice Scalia. Right now, there are folks out on the Internet trying to convince themselves and each other that letting Scalia slip through would be devilishly clever. He'll be a terribly ineffective chief justice, they say, because he's been so relentlessly nasty to some of his colleagues over the years -- especially in his dissenting opinions.

That's possible. But these people are assuming that an extremely brilliant man is incapable of mending a few fences and engaging in some good-old-fashioned office politics.

These same folks, breaking from the more-than-a-decade-old Thomas-is-Scalia's-puppet line, also argue that Thomas is an even more extreme conservative than Scalia. But while it's nice to hear Thomas get credit for his extremism (in defense of liberty, it's no vice), he'd still only get one vote as chief justice -- so it's not much of a reason for Democrats to support Scalia.

Ultimately, however, the Democrats seem ready to make their bed.

Republicans should just sit back and enjoy it all. After all, they're like kids in a candy store at this point. It'll be a sweet day for them either way.

Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at


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