- The Washington Times - Wednesday, November 24, 2004

Like all Americans, I wish nothing short of a full and speedy recovery for Chief Justice William Rehnquist. He has served his country with distinction. Even if his seemingly iron will can turn back thyroid cancer, Justice Rehnquist is a likely candidate for retirement. And while one or two other departures from the Supreme Court are expected during President Bush’s second term, only Justice Rehnquist’s opens the chief’s chair.

The president will get lots of advice concerning whom he should choose to succeed Justice Rehnquist. This president should trust his instincts. He knows the individual who is the best person for the job and said as much during the 2000 campaign. That individual already serves on the court. He is Associate Justice Antonin Scalia.

If rated on substance and competence, Justice Scalia is the obvious choice. Since his 1986 appointment to the Supreme Court, Justice Scalia has been the embodiment of everything Mr. Bush says he seeks in a judicial nominee. Justice Scalia has advanced a judicial philosophy that instructs judges to follow the text of the law, not their personal view of what the law should be. He has argued for adherence to the original understanding of the Constitution so that our nation’s charter has a fixed meaning and not one that morphs from one fad to the next.

At the same time, Justice Scalia has proven that he is not a knee-jerk political conservative. His consistently applied methodology has led him to cast votes that the left has cheered. For example, Justice Scalia voted to strike down a federal law to prohibit burning of the American flag on First Amendment grounds. He strongly dissented from a decision hailed by Republican supporters of tort reform that an individual has a constitutional right to avoid paying “excessive” punitive damage awards. Finally, Justice Scalia rejected Mr. Bush’s claim that he had the unilateral authority to hold citizens he deemed “enemy combatants.” Justice Scalia wrote: “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.” The ACLU could not have asked for more.

So, why not nominate Justice Scalia? Clearly some in the administration fear the likely bloodbath that would become of his confirmation hearings. But a major fight over the direction of the court is coming no matter who the president nominates. As Senate Democrats have shown by filibustering Mr. Bush’s lower-court nominees, they are willing to resort to extreme measures. This reality simply confirms the need for Mr. Bush to send into that battle the brightest, most articulate defender of the conservative judicial philosophy.

Those who fear that Justice Scalia’s conservatism will be a liability must have slept through the recent election. Every Democrat outside of New England and the Left Coast should think twice before affixing the “extremist” label to a justice whose voting record will appear commonsensical to the citizens of Red State Nation. Is Sen. Ben Nelson, Democrat from Nebraska, going to oppose Justice Scalia’s elevation because Justice Scalia defended Nebraska’s perfectly constitutional law prohibiting live-birth abortions? Is Sen. Evan Bayh, Indiana Democrat, going to rally the Democratic Caucus against Justice Scalia because the justice opted not to establish the legal foundation for constitutionalized gay marriage? And is incoming Senate Minority Leader Harry Reid, Democrat from Nevada, going to turn on the man he called “the very articulate, brilliant Supreme Court justice” because Justice Scalia believes the all racially discriminatory laws are unconstitutional,? If so, let the bloodbath begin.

There will be 14 Democrats in the Senate next year that supported Justice Scalia’s nomination to the high court in 1986. None of these Democrats can honestly argue 19 years after his original appointment that Justice Scalia is not qualified to serve as chief justice. His views are nearly identical to those of the man he would replace, a man known before his elevation to chief as “the Court’s Mr. Right” and “the Lone Ranger” for his courageous dissenting opinions. Sound familiar? In short, a Scalia-for-Rehnquist swap will not alter the ideological makeup of the Court.

Mr. Bush seems committed to tackling some enormous policy challenges in his second term, including Social Security and tax reform. These ambitious goals demonstrate that the president is thinking about his legacy. If he wants that legacy to include a Supreme Court comprised of judges who know the difference between interpreting and writing the law, he should begin if Chief Justice Rehnquist retires — by following his instincts and nominating Justice Scalia to serve as the nation’s 17th Chief Justice.

Kevin Ring, a former counsel to the Senate Judiciary Committee’s Constitution, Federalism, and Property Rights Subcommittee, is the editor of the newly released “Scalia Dissents: Writings of the Supreme Court’s Wittiest, Most Outspoken Justice.”

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