One scenario: Chief Justice Scalia?
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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.Skip to next paragraph
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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."