One scenario: Chief Justice Scalia?

By , Staff writer of The Christian Science Monitor

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.

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.

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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.

Still, there are several unknowns. Chief Justice Rehnquist, who is undergoing cancer treatments, has given no hint of an intention to step down. And although Bush has cited Scalia and Justice Thomas as the type of judges he would seek to appoint to the federal bench, it remains unclear whether his admiration will translate into a chief-justice nomination.

There are also potential strategic considerations. By promoting a chief justice from within the court rather than simply naming a single nominee from outside, the White House would face two confirmation battles, rather than one.

Perhaps Scalia's biggest advantage - and disadvantage - is his extensive public record of nearly two decades of opinions, famous dissents, and law-school speeches. "With Justice Scalia, you know what you are going to get, so there isn't a huge mystery there," says Michael Gerhardt, a constitutional law professor at William and Mary School of Law in Williamsburg, Va.

Because he has become such a high-profile target, a Scalia confirmation hearing would quickly transform into a national debate over the role of judges in interpreting the Constitution.

"The nomination of Scalia would ignite a firestorm of debate in this country," says Nan Aron, executive director of Alliance for Justice, a group opposing many Bush judicial nominees. "His views on originalism, abortion, school prayer, and federalism are way out of the mainstream."

Sean Rushton, executive director of the Committee for Justice, which supports Bush's judicial nominees, holds a different view. "The Scalia hearing - should it come - would be an excellent opportunity to put on display the nature of his philosophy, which when explained openly and clearly, we think is convincing," he says. "Sixty percent to 70 percent of the country will be listening and nodding in agreement."

Such agreement could render some Senate Democrats politically vulnerable on election day, Mr. Rushton says.

Others say it will be Republican senators and the White House who will be backpedaling if Americans come to understand the potential impact of Scalia's approach to constitutional law.

"I don't think originalism [as applied by Scalia] is ever going to be consistently applied by the Supreme Court because it is so extreme and leads to such unacceptable results," says Dawn Johnsen, a constitutional law professor at the Indiana University School of Law who headed the Justice Department's Office of Legal Counsel during the Clinton administration.

"Initially, originalism is very appealing because it promises an easy answer to every question, but it is a lie," she says. "It has the affect of freezing constitutional meaning at a time when only white, propertied men were fully protected under the law."

Professor Johnsen says the last time the nation engaged in a heated debate over originalism was in the 1980s during the Supreme Court nomination hearing of Robert Bork. The Senate defeated his nomination 58 to 42.

"One of Robert Bork's downfalls was his obvious exasperation with certain senators. That doesn't play well on TV," Rushton says.

He says Scalia would be well advised to turn on the charm: "You have to come across as deferential and likable and bright."

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