Why Not Scalia

The pugnacious darling of the Right was sidelined by the political calculus

When George W. Bush visited the Supreme Court Sept. 6 to pay last respects to Chief Justice William H. Rehnquist, he was escorted into the Court's Great Hall by the man many conservatives believed would replace Rehnquist, propelled to the top job by sheer force of will and intellect: Justice Antonin Scalia.

Both men kept their thoughts to themselves, but the appearance was poignant. Just a day earlier, the President surprised Washington and many of his conservative allies by tapping Judge John G. Roberts Jr. of the U.S. Court of Appeals for the District of Columbia to serve as Chief Justice, thereby avoiding what would have been a nasty political fight over Scalia's nomination. Many court watchers hailed the move as a shrewd gambit by a President who finds himself at political low ebb. But hard-liners didn't join in the jubilation. "We were hoping the President might elevate someone like Scalia," said Tony Perkins, president of the conservative Family Research Council.

Perkins & Co. had every reason to believe Scalia was a top contender. On the campaign stump, Bush repeatedly vowed to fill Supreme Court vacancies with judges "in the mold of Scalia" or Justice Clarence Thomas, meaning strict constructionists who favor a literal reading of the text of the Constitution. Bush's promises -- he even declared Scalia to be his favorite jurist -- combined with a year-long charm offensive by the usually irascible Scalia, led many to believe that the famously argumentative justice had a good shot to replace Rehnquist. After all, Scalia ranks alongside Rehnquist as one of the key intellectual architects of contemporary conservative legal philosophy. Both men fought lonely battles against the prevailing liberal jurispudence in the 1960s and 1970s, lived long enough to see their principles prevail over the past two decades -- and became heroes to the Right.

In fact, the 69-year-old Scalia was never on the short list, say sources close to the White House. His age, combined with his combative personality, a raft of controversial opinions, and the messy realities confronting a politically weakened President, conspired against him. By making Roberts chief, Bush has to go to the Senate for confirmation only twice -- once each to replace Rehnquist and retiring Justice Sandra Day O'Connor, but not the third time that would have been required to O.K. Scalia's elevation to the top spot. With Bush's approval ratings at an all-time low, the President seems ill-inclined to risk his limited political capital on a knockdown struggle over Scalia.

On a practical front, Scalia's age presented a big negative to Bush, who is eager to leave a generational imprint on the court. At 50, Roberts is 19 years Scalia's junior and would be the youngest Chief Justice since President John Adams appointed 45-year-old John Marshall to the court in 1800. "I don't think there's anything that could have overcome that," says Wendy Long, counsel for the Judicial Confirmation Network, a group lobbying on behalf of Bush's nominees. "If age weren't a factor, nothing else would have ruled [Scalia] out." While Scalia's plain-spoken style has made him a darling of conservatives -- he once called an O'Connor argument "incoherent" -- the modern-day federalist movement has spawned numerous Scalia-clones who can take up the cudgel against the Welfare State. Among them: federal appeals court judges Priscilla Owen and J. Michael Luttig.

Compounding the problem with a Scalia nomination: his diplomacy on the court -- or lack thereof. The pugnacious jurist might simply have pontificated his way out of the job. Almost no one on the high court has been spared his short temper and biting pen, which he has used frequently to criticize his colleagues. "Bush had been told by the legal community that Scalia would not have been an effective Chief [Justice]," says Stephen Hess, a former Ford Administration official. Roberts, in contrast, is a smooth and genial jurist already well liked by the justices. Says Stanton D. Anderson, executive vice-president of the U.S. Chamber of Commerce: "Roberts' personality might be better for forging majorities."

Adding to the Roberts juggernaut are the White House's political woes. Voters' unhappiness with Bush's halting response to Hurricane Katrina and the pace of the war in Iraq has discouraged the President from risking a prolonged Supreme Court confirmation battle. "Scalia has raised a lot of hackles," says Robert H. Bork, whose Supreme Court nomination was rejected amid bitter partisan warfare in 1987. Compared with Roberts, "the campaign against him would have been much more hysterical."


That's not to say that Roberts will get a free pass. Within hours of his nomination, the Left tried to wrest the advantage, alerting the White House that Roberts' confirmation should be part of a package deal that would include a legal pragmatist to replace the swing-voting O'Connor. "Before the Senate acts on John Roberts' new nomination, we should know even more about his record, and we should know whom the President intends to propose to nominate as a replacement for Sandra Day O'Connor," said Senator Edward M. Kennedy (D-Mass.), a member of the Senate Judiciary Committee.

Bush followed his own counsel in picking Roberts, so don't count on him to take Kennedy's thoughts under serious advisement. But while the President contemplates his next move, conservatives are taking no chances. They calculate that Roberts, despite winning kudos from across the political spectrum, will face significant opposition -- as many as 40 votes -- from Democrats who will find a reason to vote against him on the floor to satisfy their liberal constituencies. As confirmation hearings get under way on Sept. 12, Roberts' backers will whip up grassroots support by flooding the airwaves in half a dozen states. Their message: The Supreme Court is the last defender of property rights, religious freedom, and traditional marriage.

For many movement conservatives, Scalia's thunderous orations and incendiary writings from the bench made him the ideal Chief Justice to press the campaign for limited government and traditional values. But in the end, the combative Scalia left the path open for Roberts, a man with seemingly no rough edges.

By Lorraine Woellert, with Richard S. Dunham, in Washington

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