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One scenario: Chief Justice Scalia?

By Staff writer of The Christian Science Monitor / May 13, 2005



Of all the possible candidates mentioned for a US Supreme Court post, none seems more primed for all-out warfare in the Senate confirmation process than Antonin Scalia.

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Justice Scalia, who has served on the high court since 1986, is frequently mentioned as a potential nominee for the top post should Chief Justice William Rehnquist announce his retirement.

While the looming Senate showdown over filibusters is now focused on appeals-court candidates, such battles are considered mere window dressing for the ultimate prize - the future direction of the Supreme Court.

A Bush nomination of Scalia as chief justice would throw down a White House gauntlet to liberal advocacy groups. It would reassure religious conservatives that their support of President Bush in the 2004 election was not unappreciated. And, if confirmed, it would lay the groundwork to continue a nearly 40-year rightward shift at the high court by replacing a conservative chief justice with an even more conservative chief.

How a Scalia nomination might play in the Senate is less clear. Some analysts say that while his nomination would spark an intense fight, in the end, Scalia would probably win confirmation.

Senate Democratic leader Harry Reid has recently suggested there would be no filibusters of Supreme Court nominees except in "extreme" cases. He has not defined "extreme."

In December, Senator Reid criticized Justice Clarence Thomas as "an embarrassment to the Supreme Court." But he called Scalia "one smart guy."

"I disagree with many of the results that he arrives at, but his reasons for arriving at those results are very hard to dispute," Reid told reporters.

Scalia is a hero to the legal right, and a lightning rod for the left. Mere mention of his name is considered an effective fundraising tool among abortion-rights and other liberal policy organizations.

During oral arguments at the high court, sometimes Scalia's tongue can be as sharp as his intellect. Critics say he lacks the necessary political skills to lead the court from confrontation to compromise. His prickly relationship with Justice Sandra Day O'Connor, in particular, could undercut his ability to assemble and hold a conservative majority in important cases.

Others say he may not want to be chief justice because the position would reduce his freedom to skewer his colleagues in sharply worded dissents while championing his vision of constitutional "originalism."

"I think it would mute his voice," says Todd Gaziano, director of the Heritage Foundation's Center for Legal and Judicial Studies in Washington.

Scalia is the best known among the six or seven others said to be on Mr. Bush's Supreme Court shortlist. In his 19 years as an associate justice, Scalia has become the nation's leading proponent of an originalist approach to constitutional law.

In his view, judges exceed their authority when they impose their own policy preferences by expanding constitutional rights that never existed in the original document. He says by looking to the text of the Constitution as it was originally written, judicial discretion can be minimized and true constitutional freedoms better preserved.

It is an approach that is increasingly resonating with many conservatives upset over what they view as unrestrained activism by US judges - including some jurists appointed by Republican presidents.

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