Ezra Klein: Duck Hunt

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January 27, 2005

Duck Hunt

Nicholas Thompson's case for Chief Justice Scalia is persuasive, but a tad optimistic. While I agree that, given Scalia's predictability, intelligence, and symbolic value to the right, we'd benefit from a trade that put him in Rehnquist's place and filled his vacancy with a moderate, what in Bush's history or character makes Nick think such a trade is even within the realm of possibility? Is there any evidence that Bush is a political moderate held hostage by his association with the Christian Right? Is there any evidence that the Republican-held Senate won't vote to confirm a conservative nominee? Is there any evidence that Bush, having made this deal, wouldn't immediately renege on it or define "moderate" as arch-conservative?

Far as I can tell, there isn't. Now, I support nominating Scalia for Chief Justice. He's a lightning rod with questionable ethics and and reams of extremist public statements, all atop a singularly unappealing public persona. So let's have that confirmation fight, bloody him (and his nominators) with his "gay agenda" paranoia and abiding affection for duck hunting, and then use his tenure to spotlight the sort of neanderthals arrayed against social progress. But let's not pretend that Bush will engage in a pragmatic quid pro quo benefitting Senate Democrats. He's shown no interest in in such substantive bipartisanship. In fact, the only likely scenario where such a deal emerges is if Bush gets mauled, Hillarycare-like, by his Social Security games and Democrats retake the Senate in 2006. And while I'm all for trying, let's get our, ahem, ducks in a row before we start shooting them down.

January 27, 2005 in The Supreme Court | Permalink

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...As to the proposition that a Chief Justice Scalia would cause the Court to be held in higher esteem by scholars and the public, I vote an emphatic "no." [Read More]

Tracked on Feb 1, 2005 8:54:05 PM

Comments

Who are we kidding. Bush is going to pick someone that makes Scalia look like Earl Warren.

Posted by: Daryl | Jan 27, 2005 11:24:19 AM

I had the same reaction to Mr. Thompson's piece. It seems a particular fetish of Democrats to fanasize about "deals" that could be struck to make a bad situation better. Deals that only exist in the imagination of the writer. I took part in a similar debate on Kos a while back where several people advocated "trading" reduced Democratic staffing on Senate Committees for an assurance from Frist that he wouldn't use the nuclear option to end the filibuster. No such deal existed anywhere but in the imagination of the posters and would be an utterly foolish (and unenforcable) deal for Frist. Fact is, Republicans long since stopped dealing in any substantial way. We simply don't have any leverage.

More substantively, I have two thoughts about why it may still be worthwhile to oppose Scalia's ascention.

First, he would have somewhat more control over the agenda and direction of the Court. The Chief Justice, at a minimum, sets the schedule and heavily influences what cases are heard when. He also assigns the opinions. Even within a majority on a particular issue there is a range of emphasis on what are the important points. By assigning to those that would advocate the most ideological interpration, likely often to himself, he could gradually steer the Court to a place that would be extremely damaging to the Country. Like eroding Congress' power to enact law under to Commerce Clause.

Second, and less substantively, I've heard from a few people that strongly believe that if Scalia is passed over he will retire so he can go make money like his clerks do. That would obviously be a very good thing.

Posted by: Micarrdc | Jan 27, 2005 11:37:10 AM

Nah...no way, no how would Scalia retire. That's just a liberal wet dream. Like most of the justices, he enjoys his power far more than he could be offered in the private sector.

Second, I agree. How many times have we try to "deal" with the GOP, only to have it baited and switched when the time came? It was a good arguement, just a little too idealistic. Scalia will be chief justice, and at least it's better than the Thomas alternative, for Scalia is at least intellectually honest, Bush v. Gore aside.

And I do agree with the sentiment that the Chief Justice has no real power. After all, who's the most powerful person on the court right now? Rhenquist? Hardly. That honor would go to O'Connor who has done more to shape the current court than Rhenquist could ever do. Scalia would probably be second, and I would probably put Ginsburg as third. Followed by Stevens, and then Rhenquist as a distant fifth.

My reasoning? Can you name an important decision he's authored? I mean, a really important one? It's a sham job, and Rhenquist knows it, and has devoted his time to ensuring the court's power, rather than it's ideology.

Posted by: BJ Chavez | Jan 27, 2005 11:45:48 AM

I hope that any Scalia hearings press him about his dissent in Lawrence v. Texas and how he feels it will hinder government laws against masturbation. I wonder what Scalia thinks should be the law regarding masturbation, and how he feels those laws should be enforced. Until I get clear answers, I cannot support him for chief justice.

Posted by: dstein | Jan 27, 2005 2:11:27 PM

Scalia is not as conservative in certain areas as you may think. Last term, he wrote the two biggest constitutional criminal procedure decisions in decades, both favoring defendants. One, the sentencing decision, saw him opposite Breyer (Clinton's appointee) and OConnor and Kennedy (the supposed moderates) and the Chief.

But the whole Scalia as Chief is not serious. Anyone who seriously follows the Court knows that the other Justices would NOT be happy with such a choice, not so much because the don't like him personally (his best friend on the Court is Ruth Bader Ginsburg) as that he has shown that he pulls no punches in dissents, and routinely exagerrates other Justices' positions, etc. Moreover, by his own admission, he is no compromiser and is not interested in bargaining over his legal views. Chiefs must do this.

Recall that Justice Brennan (the greatest liberal justice) called Chief Justice Rehnquist the best Chief he worked with, and he worked with Earl Warren for 13 years. There are other things that go into being Chief.

This is going to sound condescending but if you are not a regular follower of the Court, you shouldn't comment on this stuff, because you have to understand the nuances of how the Court works, and how the legal process works at that level. Attempts by people on the right and left to transfer what they know about how Congress and other branches work to the Supreme Court don't work. Scalia is not the Supreme Court's Rick Santorum, and Stevens is not the Supreme Court's Ted Kennedy. The views are nuanced and much more fluid depending on the issue.

Posted by: Cincinnatus | Jan 27, 2005 4:24:35 PM

OK, first you should learn to spell Rehnquist's name. Second, you are wrong that the Chief Justice has no real power. The Chief has amazing power if willing to use it. Example: Warren Burger was famous for joining a majority on an issue that he didn't agree with them on so that he would have the power to assign the opinion to himself or a Justice who he did not believe would do too much harm.

Chief Justice Rehnquist however has not done that for whatever reason. As I note above, this is why Brennan and Marshall (two people with literally polar opposite views of Rehnquist) both said that he was a great Chief Justice, and Brennan saying that he was the best.

O'Connor is thus the most powerful justice right now only because Rehnquist has not compromised his own positions (which are far right).

Moreover, to the person who says that Scalia may retire if he doesnt get the Chiefship, you are dead wrong. I doubt he would be interested in it. See why in my above comment. The only sitting Justice with serious eyes towards the seat is Justice Kennedy. Clarence Thomas, I think, would have to be seriously pushed into it. After all, why would he be interested in going through another round of confirmation hearings? And his absurd dissent in Hamdi -- where he was the ONLY justice to buy Bush's position that the President has the power ot basically do whatever he wants to US citizens so long as the Prez believes that the citizen is waging war against us -- would probably kill him, as many rethugs (think Lindsay Graham) would not be comfortable with that. And by the way, there's another "liberal" Scalia opinion -- in Hamdi, he and Stevens were the only two Justices who basically came out and said that the Bush administration's position was contrary to one thousand years of anglo-american jurisprudence, and that they would order Hamdi's release immediately if he was not charged with a real crime in open court.

Posted by: Cincinnatus | Jan 27, 2005 4:34:58 PM

A)Sorry for the mispelling. I do know how to spell Rehnquist. Just for whatever reason, I didn't do it right this time.

B)I am a regular court watcher, especially the politics behind the court. Also, I am a lawyer, so implying that I don't know what I'm talking about.....

C)I never said Scalia was the perfect conservative. I don't like him for a lot of reasons, but I did say that he was intellectually honest, which sometimes puts him onto the liberal side of the court, say in instances like Hamdi, or in my favorite of his decisions, the Infrared Spy Cam Pot case. That being said, he is still extremely conservative; he's absolutly unbending when it comes to criminal punishment(I believe he wrote the decision arguing that the death penalty for a parking violation shouldn't be considered cruel and unusual), abortion, and gay rights. So he wrote the first part of Booker, Apprendi and Crawford. Big deal. There are very easy conservative rationales behind them.

D)Finally, just because some CJ's have been powerful doesn't mean that the CJ position is one of power. Those CJ's you mention as powerful were powerful because of what type of justice they were, not because they got to assign cases. The real power behind the Supremes is how you yourself mold the court; so what has Rehquist done? Not much. I challenge you to name, off the bat, one major doctrine he's behind.

Religion in the public sphere? O'Connor.
Gay rights? Kennedy.
Expanded Search and Seizure? White, Scalia, O'Connor, and Kennedy.

Aside from the occasional business or nuance of administrative law, he doesn't write major, law-defining opinions. The Rehnquist court won't be remembered for it's CJ, but rather for the law shaped by it's other members, primarily O'Connor.

Not compromising his opinions? That's because he doesn't have any beyond what the typical GOP party line is. He's for federalism, unless it's inconvenient. He's for reduced power of congress, unless doing so might hurt the GOP. He and Thomas are the two biggest hacks on the court right now, which is why Rehnquist is not nearly as powerful as the other justices. A CJ is as powerful as the person behind it; the office itself does absolutely nothing. The only thing Rehnquist reliably stands for is the expansion of court power, something, as a lawyer, I can reasonably agree with. But that doesn't make him a strong chief justice. Nor can the office make him stronger than he is as normal judge. He's a glorifed administrator.

So yeah, I do know quite a bit about the court, I know that it's more fluid than right v. left, and I do know what I'm talking about.

Posted by: BJ Chavez | Jan 27, 2005 5:25:06 PM

Hustler v. Falwell. Off the top of my head because it's one of the few times I think he nailed it. My politics differ too much from his.

And Burger was not a great Justice, but he was a powerful Chief, an idiot who wielded power nevertheless. (Remind you of anyone?) The potential for a Chief to have power is there, Rehnquist for one reason or another just hasn't seen fit to use it very much.

Posted by: Cincinnatus | Jan 27, 2005 5:53:38 PM

But Hustler v. Falwell wasn't really a doctrine per se. It was more a reaffirmation of Sullivan. It wasn't a huge stretch to say "yeah, the First Amendment applies. See Sullivan." Compare that to O'Connor, or, as you say Burger, who I do think was a great justice. Not necessarily a smart justice, or one who I agreed with, but a guy who got his point across, which was a wholesale scaleback of everything that the Warren Court had attempted to put into place. I argue that it was Burger, not the CJ position, that shaped the court.

My point is that if the CJ position had such power, we would have seen a lot more from Rehnquist in shaping the court. But the effect from Rehnquist has been negligible or has paled in comparison to what you're seeing from O'Connor, Scalia, and Ginsburg. I don't think you can leap to a conclusion that says that Rehnquist has just chosen not to use the power--I think the logical conclusion is that the power doesn't exist in the first place, and strong CJ's are a product of a strong justice.

Posted by: BJ Chavez | Jan 27, 2005 7:31:34 PM

as you say Burger, who I do think was a great justice. Not necessarily a smart justice, or one who I agreed with, but a guy who got his point across, which was a wholesale scaleback of everything that the Warren Court had attempted to put into place. I argue that it was Burger, not the CJ position, that shaped the court.

Well, this is tangential, but if you think Burger is to measured by his success in a "wholesale scaleback of everything that the Warren Court had attempted" then I think he must be viewed as a failure. Indeed, it was during the Burger era that such decisions like Roe v. Wade -- the most expansive application of non-enumerated fundamental rights jurisprudence ever and a decision that leaves a lot of progressives like me still scratching my head and wondering "where did that come from"? -- came about (and Burger joined the opinion in an apparently misguided effort to limit its scope). The Burger Court is the first Court to approve of bussing to end segregation. The Burger Court expands significantly the right to counsel. I mean the list goes on. . . . Frankly, I can't think of anything that Burger was successful at rolling back, at least "wholescale rolling back."

I'll concede the point on Hustler, but it was a great opinion nevertheless. I guess a broken clock is right twice a day. But still I take it as a testament to Rehnquist that Brennan and Marshall both went out of their way after retirement to say that they really thought he was a great Chief. Means something to me, when you consider that the ideologies there are diametrically opposed.

Posted by: Cincinnatus | Jan 27, 2005 7:53:48 PM

I'd like to hear in what context Brennan said Rehnquist was a better Chief Justice than Warren. Or even Marshall, even though I don't recall how many years he was on the Warren court at this hour. I do know specifically that Marshall thought Rehnquist was a vast improvement over Burger, who seemed to all the commenators/historians I've read to be an inept, overmatched sleaze (see his attempts at faking his way into the majority to assign the opinion, mostly to keep Brennan from exercising that prerogative as the senior member.)

That Rehnquist hasn't resorted to some of the seemier strategms of Burger, with the possible soft-selling of what he was up to with his intended Webster and Casey majority decisions, is more to his credit, I should think. That forthrightness is what I think Marshall and everybody else appreciated. But as for Brennan, I just remember too many ideological quarrels and politicking to accept that at first blush. Maybe I just missed it, but I have to believe I'd have guffawed. Is there a specific interview where he said this? Could he have been disengenuous? Finally does anyone know when we're finally going to get the William Brennan biography good liberals deserve?

Posted by: Brennan Fan | Jan 28, 2005 7:50:19 AM

Touche' on the Burger Court. I'm guilty in thinking of only one type of law: criminal. My chief complaint about the Burger court is a wholesale rollback--of the search and seizure rights established by the Warren Court. Thanks to the Burger court you had things like the good faith exception popping up...among other things. I remember back in law school crim law reading decision after decision authored by either Burger or Rehnquist rolling back another 4th amendment right, and I guess I'm guilty of applying it to the Burger court in general.

That said, the CJ position in the Burger court didn't make one whit of difference. The same bad decisions would have been made, regardless of whether he or somebody else was CJ. The very fact that he was powerless to stop Roe v. Wade(and was forced to adopt a "if you can't beat 'em, join 'em strategy") shows how limited his powers were as a CJ. However, he still wrote some solid doctrinal opinions that influence today.

As for saying that Rehnquist is a great CJ, well, I submit one of two theories:

A)Rehnquist has always been known as a great administrator. That I'll concede. It still doesn't translate into the power of the CJship; or;

B)They though he was great because he didn't try to micromanage the other justices in a vain attempt to influence decisions, which is something I can see Burger attempting. There's nothing a SCOTUS justice hates more than somebody infringing on their ego.

What were we debating again? ;->

Posted by: BJ Chavez | Jan 28, 2005 11:14:04 AM

Good points, Ezra. Of course, if the Chief Justice has to be a conservative, I'd much prefer O'Connor, but that's not realistic. My major concern with Scalia, and I think this is why the right wants him so badly, is that he's relatively young so he'll be CJ for a really long time.

By the way, could you fix the link to the article?

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