I venture back onto the political board after the election...
I, too would choose Scalia over Thomas. Thomas is not Scalia's intellectual slave, though. Thomas is more likely to follow traditional Republican thought on the issues facing the court, while Scalia is intellectually a conservative, and has had some loose cannon-ish moments when he went against Rehnquist and Thomas and actually found violations of civil rights as these rights had been defined, for example. He's a better lawyer, in that he follows the existing law more than Thomas. (He's also a far better writer, and writes some of his own opinions.)
this Washington Post article
talks about one big difference in Scalia and Thomas.
I think that frankly, Scalia is more of a lawyer's judge, and a better judge than the more political Thomas. On the other hand, if the Senate Democrats fight against Scalia, it would seem to be a more principled stand, rather than fighting against Thomas, which would no doubt bring up Anita Hill stuff and, if spun correctly, could make the Democrats seem like they were trying to bring up petty personal criticisms that do not effect the performance of a justice. (Not to mention the positive spin Bush would put on nominating a minority for cheif justice.) It almost appears as if Scalia knew this was coming, and was positioning himself by making these remarks.
Additionally, if Bush were to nominate Scalia, everyone on the left would howl about the hunting trip between Scalia and Cheney again. Ironically, though Scalia is personal friends with Cheney, in his official capacity he has not been as closely aligned with the Bush administration as Thomas. Even though Scalia would be far more independent as, and a better, Chief Justice, it just makes much more political sense for Bush to nominate Thomas. More Washington BS, if you ask me.
It is also very possible that Bush will nominate someone outside the current justices, like John Roberts, discussed
here
The text of the Washington Post article, for those who are not registered.
Quote:
A Big Question About Clarence Thomas
A Big Question About Clarence Thomas
By Douglas T. Kendall
Thursday, October 14, 2004; Page A31
A little-noticed bombshell was dropped by Justice Antonin Scalia in a recently released biography of Justice Clarence Thomas. It poses an interesting dilemma for President Bush this election season, in that it raises the question of whether he should continue to cite Thomas as one of his model Supreme Court justices.
The evidence, of course, suggests that a repudiation of Thomas by the president is extremely unlikely. Indeed, Ken Foskett, the author of "Judging Thomas: The Life and Times of Clarence Thomas," claims that top Bush administration officials have discussed with Thomas the possibility of his succeeding William Rehnquist as chief justice.
But Scalia's pointed comments to Foskett complicate Bush's support for Thomas considerably. Specifically, Scalia told Foskett that Thomas "doesn't believe in stare decisis, period." Clarifying his remark, Scalia added that "if a constitutional line of authority is wrong, he would say let's get it right. I wouldn't do that."
Stare decisis is a fancy Latin term that stands for a bedrock proposition of U.S. law: that the Supreme Court will uphold precedent and not disturb settled law without special justification. As Justice Thurgood Marshall explained for the court in 1986, stare decisis is the "means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion."
Four years ago, Rehnquist echoed Marshall in a case that reaffirmed the Miranda warning given before police interrogations, stating that stare decisis "carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.' "
Stare decisis is not and should not be an ironclad rule -- otherwise Plessy v. Ferguson, which upheld segregation, would still be on the books. But almost everyone agrees that respect for the doctrine is indispensable for a Supreme Court justice. As Thomas himself explained at his confirmation hearing, "stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision making, I think it is a very important and critical concept."
It is unlikely that any nominee of any president would be confirmed to the Supreme Court if he or she admitted to a disbelief in the doctrine of established case law. Court watchers know that Scalia's statement about Thomas goes to the heart of a jurisprudential chasm that separates the court's two most conservative justices. Scalia is fiercely conservative, but by and large he judges within the parameters of the rules laid down by predecessors. Thomas rarely appears to feel so confined.
The proof is in 35 lone Thomas opinions that express a willingness to reexamine a breathtaking range of well-settled constitutional law. A little-known but telling example is a 1998 opinion by Thomas that expresses a willingness to reexamine the court's opinion in Calder v. Bull, which decided that the Constitution's prohibition against retroactive punishments applies only to criminal (not civil) laws. Regardless of what one thinks of the merits of the case, it is a unanimous 1798 opinion by the court that has not been seriously challenged in more than 200 years. It is the dictionary definition of established case law.
Far better known is Thomas's concurrence in United States v. Lopez, where, alone among the justices, he expressed a willingness to reexamine fundamental aspects of the court's jurisprudence under the Commerce Clause of the Constitution. This clause -- granting Congress the authority to regulate commerce "among the several states" -- is the principal power used by the federal government to protect civil rights, worker safety and the environment. Thomas's views, if adopted by the court, would call into question fundamental statutes in all these areas. As Justice Anthony M. Kennedy noted in a separate opinion, "the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call in question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature."
Reading a Thomas opinion can feel like hitting 100 mph on a deserted highway: thrilling (or terrifying, depending on your perspective) but still a bad idea. The excitement of approaching every constitutional question anew comes at the cost of a stab to our constitutional tradition. No president should accept this trade-off.
The writer is executive director of Community Rights Counsel, a public interest law firm.
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