Published February 06, 2005
WASHINGTON – It was Justice Antonin Scalia's (search) standard speech. He bemoaned the Supreme Court's growing political role in cases such as abortion, then joked about how Democrats are wary of a "Chief Justice Scalia" in a second Bush term.
But in an appearance one week after President Bush's re-election, Scalia elicited a particularly hearty roar and ovation from a conservative Federalist Society (search) crowd with his kicker.
"Please," a clearly pleased Scalia said. "It was supposed to be funny!"
With Chief Justice William H. Rehnquist (search) ailing with cancer, the irascible Scalia is doing nothing to discourage talk that he would like to be Bush's pick if Rehnquist steps aside this year.
Scalia's ascension is considered a long shot because the staunchly conservative justice would prompt a firestorm of opposition from Democrats, abortion rights supporters and others groups. Nonetheless, Scalia seems to be relishing, if not subtly encouraging, the speculation.
"We all know the story: If you're not seen, you're not likely to be considered or heard," said Douglas Kmiec, a former legal counsel in the Reagan and first Bush administrations.
"A chief justiceship is clearly an opportunity for him to lead a court with new recruits," Kmiec said.
Scalia has been active on the Washington social scene in recent weeks, hamming it up with the political crowd. Some court observers say this may be an effort to counter White House concerns that the brusque Scalia is ill-suited for a job demanding consensus.
He agreed to be televised live on C-SPAN in a debate last month with Justice Stephen G. Breyer — a surprise given Scalia's famous hostility toward the broadcast media.
As a group, the nine justices are serving their 11th term together, a modern record. With Clarence Thomas (search) the only justice younger than 65, many people believe that Bush could have the opportunity to appoint several justices to a court that splits 5-4 on the death penalty, affirmative action and gay rights.
Speculation about retirement has focused on the 80-year-old Rehnquist, a conservative who has been working mainly from home after announcing in October that he has thyroid cancer.
Liberal John Paul Stevens, who at 84 is the oldest justice, and moderate Sandra Day O'Connor, 74, also are considered retirement possibilities.
During the presidential campaign, Bush cited Scalia, 68, and Thomas as justices he admired because of their narrow interpretation of the Constitution. Thomas privately has made it clear that he is not interested in becoming chief justice, according to friends and former clerks.
Scalia declined an interview request. Friends say he is interested in the top job.
"It would be unusual for someone who's been on the court as long as he has to not think about becoming chief justice," said former Education Secretary William Bennett, who used to play poker with Scalia.
"He's not going to campaign for it, but he's well-qualified. He's a leader. He's extremely forceful and all the members of the Supreme Court like him," Bennett said.
Scalia got an unsolicited boost in December from Senate Minority Leader Harry Reid, D-Nev. He suggested he would be open to elevating Scalia, calling the justice a "smart guy." Reid described Thomas as "an embarrassment."
Liberal groups such as People for the American Way (search) say they are ready to attack Scalia's 18-year record against abortion and plan to highlight his browbeating dissents attacking colleagues.
They also intend to cite the ethics flap that arose last year when it was disclosed Scalia accompanied Vice President Dick Cheney on a hunting trip while the court was considering a case involving Cheney.
Even some conservatives say a bitter Senate fight over Scalia might not be worth it if it forces Bush to choose a more moderate candidate for associate justice to ensure approval of both nominees.
Such a scenario would move the court to the left because Scalia's replacement would not be the solid conservative vote Rehnquist has been for 33 years.
More probable is the nomination for chief justice of someone not on the court, such as J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals (search) in Richmond, Va., who would keep the court more solidly right.
Other widely mentioned names are former Deputy Attorney General Larry Thompson (search) and appeals court judges J. Michael Luttig (search), John Roberts, Edith H. Jones (search), Samuel Alito (search) and Michael McConnell (search).
"In its simplest form, someone has to answer the following for the president: If I elevate and get two difficult confirmations instead of one, what am I getting for that?" said Bradford Berenson, a White House lawyer during Bush's first term and a former Supreme Court clerk. "The opposition groups are armed and dangerous."
The main power of a chief justice comes from assigning opinions to justices. Often, that, determines the tone and breadth of an opinion. Apart from that, however, the job is largely administrative.
"Given the political opposition, confirmation would probably be a grueling process for only a symbolic role," said John Yoo, a Justice Department lawyer from 2001 to 2003 who also served as general counsel of the Senate Judiciary Committee. "Your vote as justice is still the same."
Some Scalia supporters are not counting him out. While the vast majority of chief justices have been court outsiders, the most recent exception was 1986, when President Reagan elevated Rehnquist.
Scalia, who took Rehnquist's seat, sailed through the Senate on a 98-0 vote. His supporters think a package of Scalia for chief justice and another conservative for Scalia's seat could withstand a confirmation fight even though the Senate is far more partisan than it was when Scalia won approval nearly two decades ago.
"It's entirely possible," said C. Boyden Gray, a former White House counsel for the first President Bush who now heads the Committee for Justice (search), a group that supports the younger Bush's judicial nominees.