Unique chance to mold court - Will chief justice choice be low-key or a 'red-meat' conservative?

WASHINGTON - The death of Chief Justice William H. Rehnquist provides President Bush with an unusual opportunity to stamp the nation's highest court with his conservative seal.

In nominating John G. Roberts, whose Senate confirmation hearings are scheduled to begin Tuesday, Bush turned to an obviously conservative candidate, but one with a low-key, hard-to-pin-down reputation and a relatively short paper trail. There was no immediate indication of whether the Senate will delay the hearings in recognition of Rehnquist's death.

Fresh list of candidates For senators and the observing public, the question now is whether the president will follow the same course in selecting Rehnquist's successor as chief or instead choose more of a "red-meat" conservative — perhaps elevating a sitting justice, Antonin Scalia or Clarence Thomas.

Bush can nominate a sitting justice as chief and pick someone else to round out the nine-member court, or nominate someone not currently on the court as chief.

Bush was expected to make a statement about Rehnquist's death at the White House today. The White House has a relatively fresh list of court candidates because it reviewed several before Roberts' selection, but Bush's next candidate is not expected immediately.

Beginning with his first presidential campaign and continuing throughout his presidency, Bush has repeatedly referred to Scalia and Thomas as his favorites on the court and has held them up as examples of the type of Supreme Court justices he would nominate. The two justices, along with Rehnquist, formed the court's conservative bloc.

But when Justice Sandra Day O'Connor, often the deciding swing vote on the court, announced her retirement this summer, Bush chose a successor, Roberts, who has turned out to be a much less volatile pick than either Scalia or Thomas would have been.

Democrats on Capitol Hill, as well as liberal advocates, have spent months digging through Roberts' papers and were primed for a fight this week. But most conceded that Roberts will be confirmed.

With Roberts' opposition virtually gasping for breath before the hearings even begin and the nation's attention focused far from Washington on the devastation wrought by Hurricane Katrina, opponents now are expected to shift their financial and political resources to the next battle and concentrate on whomever Bush puts forward as the next chief justice.

Possible nominees for the chief or a regular justice seat include Attorney General Alberto R. Gonzales of Houston and federal courts of appeals judges J. Michael Luttig, Edith Clement, Samuel A. Alito Jr., Michael McConnell, Emilio Garza, and James Harvie Wilkinson III.

Former Solicitor General Theodore Olson, lawyer Miguel Estrada and former deputy attorney general Larry Thompson also have been mentioned.

If he were to ask the Senate to allow the next chief justice to be Thomas, a staunch conservative placed on the high court by Bush's father, the president could push the court considerably farther to the right while also appointing the first black head justice.

Contentious choice Scalia, recognized even by his detractors as an intellectual force on the court, might nevertheless be an even more contentious choice because of his tendency to dominate arguments with sarcastic, though witty, questions and to pepper his opinions with biting commentary.

Often Scalia chooses to punctuate his angry dissents by reading them aloud in the courtroom, a step rarely taken by the other justices.

The opening created by Rehnquist's death also gives Bush another chance to nominate the country's first Hispanic to the court. Gonzales has been long rumored as a front-runner.

Bush also could choose to nominate a woman, making history by appointing the first female chief justice.

There is no mention of Janice Rogers Brown, so I'll add her.

"A Whiter Shade of Pale": Sense and Nonsense — The Pursuit of Perfection in Law and Politics Speech of Janice Rogers Brown

***.......Democracy and capitalism seem to have triumphed. But, appearances can be deceiving. Instead of celebrating capitalism's virtues, we offer it grudging acceptance, contemptuous tolerance but only for its capacity to feed the insatiable maw of socialism. We do not conclude that socialism suffers from a fundamental and profound flaw. We conclude instead that its ends are worthy of any sacrifice — including our freedom. Revel notes that Marxism has been "shamed and ridiculed everywhere except American universities" but only after totalitarian systems "reached the limits of their wickedness."16

"Socialism concentrated all the wealth in the hands of an oligarchy in the name of social justice, reduced peoples to misery in the name of shar[ed] resources, to ignorance in the name of science. It created the modern world's most inegalitarian societies in the name of equality, the most vast network of concentration camps ever built [for] the defense of liberty."17

Revel warns: "The totalitarian mind can reappear in some new and unexpected and seemingly innocuous and indeed virtuous form. [¶]... [I]t ... will [probably] put itself forward under the cover of a generous doctrine, humanitarian, inspired by a concern for giving the disadvantaged their fair share, against corruption, and pollution, and 'exclusion.'"18

Of course, given the vision of the American Revolution just outlined, you might think none of that can happen here. I have news for you. It already has. The revolution is over. What started in the 1920's; became manifest in 1937; was consolidated in the 1960's; is now either building to a crescendo or getting ready to end with a whimper.

At this moment, it seems likely leviathan will continue to lumber along, picking up ballast and momentum, crushing everything in its path. Some things are apparent. Where government moves in, community retreats, civil society disintegrates, and our ability to control our own destiny atrophies. The result is: families under siege; war in the streets; unapologetic expropriation of property; the precipitous decline of the rule of law; the rapid rise of corruption; the loss of civility and the triumph of deceit. The result is a debased, debauched culture which finds moral depravity entertaining and virtue contemptible.

But what if anything does this have to do with law? Quite a lot, I think. In America, the national conversation will probably always include rhetoric about the rule of law. I have argued that collectivism was (and is) fundamentally incompatible with the vision that undergirded this country's founding. The New Deal, however, inoculated the federal Constitution with a kind of underground collectivist mentality. The Constitution itself was transmuted into a significantly different document. In his famous, all too famous, dissent in Lochner, Justice Holmes wrote that the "constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire."19 Yes, one of the greatest (certainly one of the most quotable) jurists this nation has ever produced; but in this case, he was simply wrong. That Lochner dissent has troubled me — has annoyed me — for a long time and finally I understand why. It's because the framers did draft the Constitution with a surrounding sense of a particular polity in mind, one based on a definite conception of humanity. In fact as Professor Richard Epstein has said, Holmes's contention is "not true of our [ ] [Constitution], which was organized upon very explicit principles of political theory."20 It could be characterized as a plan for humanity "after the fall."

There is nothing new, of course, in the idea that the framers did not buy into the notion of human perfectibility. And the document they drafted and the nation adopted in 1789 is shot through with provisions that can only be understood against the supposition that humanity's capacity for evil and tyranny is quite as real and quite as great as its capacity for reason and altruism. Indeed, as noted earlier, in politics, the framers may have envisioned the former tendency as the stronger, especially in the wake of the country's experience under the Articles of Confederation. The fear of "factions," of an "encroaching tyranny"; the need for ambition to counter ambition"; all of these concerns identified in the Federalist Papers have stratagems designed to defend against them in the Constitution itself. We needed them, the framers were convinced, because "angels do not govern"; men do..........***

(AP Photo/Ben Margot, File)

October 2003 - Civil Rights Groups Blast Bush Court Nominee *** WASHINGTON -- Civil rights groups, which have been pressing Senate Democrats to filibuster a series of important judicial nominations by President Bush, are now mobilizing opposition to the latest nominee, California Supreme Court justice Janice Rogers Brown. ...***

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