Scalia or Thomas for CJ? I Doubt It

Ann Althouse wonders if President Bush will nominate either Justice Antonin Scalia or Justice Clarence Thomas to the Chief Justiceship. I don't think so.

But, were Bush to elevate someone from the Court, I think it would more likely be Scalia than Thomas. Both would be lightning rods in any confirmation process, but Thomas even more than Scalia. Scalia is more highly esteemed for his intellect than is Thomas, even by foes. Scalia is also tighter with Vice President Cheney and other members of the Bush Administration, it would seem, than Thomas.

Having said all that, I think there's a less than 50% chance that Bush will nominate either of them for Chief Justice. As a result of Chief Justice Rehnquist's death, the Roberts confirmation hearings are apt to be even more bruising and contentious than they were going to be already. Because Roberts is nominated to replace a justice regarded as a "swing" vote (although on balance, I think, one has to identify O'Connor as a conventional conservative jurist), his nomination was already more important and had larger implications than if he were simply a conservative judge appointed by a conservative President to replace a conservative Justice. Because the President gets to appoint two new members of the court, giving the conservatives an edge, liberals and conservatives will feel greater urgency to either thwart or facilitate Roberts' confirmation by the Senate.

The President already has a list of Chief Justice nominees left over from the days just months ago, when many thought that Renhquist would resign. So, I think that he's likely to nominate someone relatively quickly.

Assuming that the list isn't closed, if I were advising the President, purely from a political standpoint, I would counsel him not to appoint either Scalia or Thomas for the chief justiceship. Their opponents' arguments against them are all well-rehearsed and particularly in the case of Thomas, there is no need to conduct a re-run of his associate justice confirmation hearings. From the President's standpoint, there's no reason to go to the Alamo for Scalia or Thomas when he's already got them and their votes on the Court.

This might in fact be the time for the President to nominate someone like I was suggesting earlier for O'Connor's spot: A conservative pol possessing credibility with Dems and solid judicial credentials, one who can sail through the process and not arouse consternation from the right or vituperation from the left. To me that looks like Orrin Hatch or, for a slightly younger tilt, Mike DeWine.

In none of this am I expressing opinions about the judicial philosophies of any of these people. I'm simply interested in the politics of this moment.