Crash-Test Dummy

When Chief Justice William Rehnquist, 78, fell last Thursday and had to be taken to a Washington hospital, the incident underlined the administration's need to prepare for his death or retirement by picking a replacement to lead the Supreme Court. But who?

Bush remarks recently gathered by Evan P. Schultz of Legal Times shed some light:

"I'll put competent judges on the bench," Bush promised during the 2000 presidential campaign. "People who will strictly interpret the Constitution and will not use the bench to write social policy. . . . Strict constructionists."

On March 29, he added, "We've got to get good, conservative judges appointed to the bench and approved by the United States Senate." And more pointedly, on June 27, he argued this: "We need common-sense judges who understand that our rights were derived from God. Those are the kind of judges I intend to put on the bench."

On Meet the Press, Bush was asked to name the Supreme Court justice he most respected. Bush replied, "Anthony [sic] Scalia is one. . . . There's a lot of reasons why I like Judge Scalia."

For liberals, the appointment of Antonin Scalia would be the last straw. But the lefties lived through Rehnquist, and Bush has to repay the right-wing political base that just gave him control of the Senate. Bush's hardcore backers are salivating for raw red meat, not wishy-washy middle-of-the-road pretenders like justices Sandra Day O'Connor or Anthony Kennedy. Clarence Thomas is to die for, of course, but the troops are still scarred from battling to get Long Dong confirmed.

Scalia, though, is the real thing—and the Republican right loves him. As a man of principle (their favorite word), Scalia has consistently voted against abortion rights, gays, affirmative action and church-state separation. Tapping Scalia would provide a double payoff for Bush, who could then could turn around and name White House counsel Alberto Gonzalez to fill Scalia's old seat. "The resulting photo op," writes Tony Mauro in Legal Times, would be "Bush flanked by the first Italian-American chief justice and the first Hispanic associate justice."

Liberals acknowledge this dread event might actually happen. "If he's nominated, it's possible that he could be confirmed, but it would be one hell of a fight," promised Ralph Neas, leader of People for the American Way, which has been battling the Bush judicial appointments.

Neas believes a Scalia-Gonzalez shift would be a nightmare scenario. "We examined all of the dissenting and concurring opinions of Scalia and Thomas since their confirmation, and we found that if there are one or two more justices in the mode of Scalia and Thomas, more than 100 Supreme Court precedents would be overturned, affecting reproductive rights and privacy, civil rights, religious liberty, environmental protections, and so much more," he said.

Nan Aron, who directs the Alliance for Justice, concurred. "If it's possible, [promoting Scalia] would tilt the bench even more, in a direction that hurts women, people of color, workers, and the environment and consumer protection," she said. "He and Thomas are in a category unto themselves on that bench. They hold the right-wing flank of a very conservative Supreme Court."

Harvard's Alan Dershowitz thinks Scalia won't get the nod. "It would be just too provocative," he said. "Here's a guy who switched his vote and was the most important person on Bush v. Gore. The Democrats are not going to easily forgive him for that, No. 1. No. 2, he's the most reactionary justice on the court. No. 3, the other justices hate him. He would be a terrible chief. He's exactly the kind of guy who maybe is tolerable as a single, individual justice; I think when the White House looks it over carefully, they realize he's a guy who divides people. He doesn't bring them together."

Opponents of a Scalia court would need Senate Democrats to mount a filibuster blocking the nomination. That hope, in turn, rests on the question of which jurist the White House would select instead, said Georgetown public-interest attorney David Vladeck. "Without knowing in advance who's being appointed to fill Justice Rehnquist's seat, it would be very difficult, given the composition of the Senate today, for the Democrats to successfully mount a filibuster, were they inclined."

Scalia's bid won't get that far, predicted Dershowitz. "I think he's gonna be sent out as a stalking horse so that when, finally, the president appoints Sandra Day O'Connor, everybody'll heave a sigh of relief and say 'Thank God it isn't Scalia,'" he argued. "So I think we're gonna hear a noise, hear some Scalia noise, but in the end, I don't think it's going to happen."


Even as liberal Democrats beat back the formal creation of Attorney General John Ashcroft's snitch line, his program to establish an intrusive domestic-intelligence system moved forward. At week's end, the Pentagon confirmed its plans for developing technology that can allow the government to quickly check out a citizen, say at an airport screening checkpoint, by scanning credit cards, private credit reports, arrest records, Social Security files, medical info—any and all government and private records.

As Edward C. Aldridge, undersecretary of defense for acquisition, explained last week, the Total Information Awareness (TIA) system is an "experimental prototype" that will try to search and make sense of the "vast quantities of data to determine links and patterns indicative of terrorist activities." He added, "If it proves useful, [TIA] will then be turned over to the intelligence, counterintelligence and law-enforcement communities as a tool to help them in their battle against domestic terrorism."

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