Hasen [Loyola Los Angeles]: Why Rational Democrats Could Support Scalia for Chief Justice Commentary
Hasen [Loyola Los Angeles]: Why Rational Democrats Could Support Scalia for Chief Justice

Rick Hasen, Loyola Law School Los Angeles:

"The Washington Post reports here that new Democratic minority leader Harry Reid has said he could support Justice Scalia as a potential replacement for Chief Justice Rehnquist (if and when the Chief retires) because Scalia is "one smart guy." (Reid opposes Justice Thomas for Chief on grounds he has been an "embarassment" on the Court.) The support for Scalia (tempered by a view that he must overcome "ethics" objections) has reportedly angered some Democrats.

In looking at the disputes over judicial nominations, I have always believed that the actions of both Democrats and Republicans have been pretty rational, given political constraints and ideals. Thus, I have written how it makes sense for Democrats to selectively filibuster a small group of judicial candidates who may be painted (fairly or unfairly) as ideological extremists, and it makes sense for Republicans to threaten (but not follow through on) threats to end the filibuster rules through a majority vote (the so-called "nuclear" option). I think a focus on rational behavior helps to explain Reid's stance on Scalia a well.

Why would it be rational to support Scalia?

(1) Scalia would likely make a weak chief Justice. Scalia may be "one smart guy", but he is not a consensus builder. Far more than anyone else on the Court, his opinions (particularly his dissents) are caustic and nasty. He likely would not be effective in managing a cohesive conservative court.

(2) Scalia, in his 60s, would have a shorter tenure as Chief Justice than a younger Chief who could have influence for a longer period, such as Justice Thomas or an outsider appointed to be chief.

(3) Support for Scalia would allow Democrats to counter the charge that they would not vote for an anti-abortion candidate or a conservative, and they could make such a vote without changing the balance on this issue on the Court. Having approved a Chief Justice Scalia, Democrats would then have additional strength in the court of public opinion to oppose an ideological nominee to fill Scalia's old seat.

(4) To the extent Democrats could highlight Scalia's "ethics problems," so much the better for them." [December 7, 2004; Election Law has the post].

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