"Further Thoughts On The Elevation Scenario - Justice Scalia
Supreme Court Nomination Blog
Elevation Scenario | Posted by Tom Goldstein at 08:54 PM
In a previous post, I said that I thought it was unlikely that the President would elevate one of the Associate Justices to replace the Chief Justice. Principally, I thought that that approach would invite only problems - as the confirmation for the Chief held up the confirmation of a new Associate Justice.
I now think that I may have underestimated the possibility that the President will elevate Justice Scalia. Obviously, conservatives have the greatest confidence in and admiration for Justice Scalia's jurisprudence. And as I said before, he is perhaps the most eloquent proponent of the originalist construction of the Constitution that the Administration favors.
Democrats may have very considerable trouble preventing his confirmation - more than I thought in writing my previous post. Harry Reid - in the course of an attempt to critique Justice Thomas - famously said on Meet the Press (as summarized by the Washington Post) that "he could support him to be chief justice of the United States because he is 'one smart guy,'" although the Cheney energy task force case assertedly presented "ethics problems." As the Post continued, "Reid's comments startled lobbying groups preparing for the battles sure to come with the likely turnover in the Supreme Court in the near future."
Those in favor of Justice Scalia's elevation notably could point to a number of his votes this Term to respond to the argument that he is an activist ideologue. To pick just one crass measure, thus far this Term, Justice Scalia has already voted against what would be regarded as the conservative position (and voted contrary to the votes of the Chief Justice and Justice Thomas) in six cases. (In one of those, Smith v. City of Jackson, the Chief did not participate, but his views were well known from prior rulings.) By contrast, Justice Thomas has voted in that fashion (and contrary to the Chief and Justice Scalia) once; the Chief contrary to Scalia and Thomas zero times.
Here are some notable votes by Justice Scalia, most in very closely divided cases. In most, principles to which he has long adhered - e.g., the rule of lenity, agency deference, and originalism - produced results that he would presumably reject based on personal preference:
In Raich, he voted to sustain (and wrote a substantial concurring opinion regarding) Congress's power to regulate locally grown and sold marijuana.
In City of Jackson (a 5-3 ruling), he provided the decisive fifth vote to recognize disparate impact claims under the Age Discrimination in Employment Act; disparate impact liability has been an extremely divisive issue between liberals and conservatives in civil rights litigation.
In Booker/Fanfan (a 5-4 ruling), Justice Scalia extended the Apprendi line of cases to the Federal Sentencing Guidelines.
In Koons Buick, he dissented alone (agreeing with Judge Luttig's opinion for the Fourth Circuit), arguing that the plain language of the Truth in Lending Act provides consumers with a right to greater damages.
In Shepard (a 5-3 ruling), he voted to limit the government's power to prove the prior offenses that give rise to substantially enhanced sentences under the Armed Career Criminal Act.
In Pasquantino (a 5-4 ruling), he dissented to argue that the federal wire fraud statute does not apply to a scheme to defraud a foreign sovereign.
In Smith v. Massachusetts (a 5-4 decision), he broadly read the Constitution's Double Jeopardy Clause.
In Johnson v. United States (a 5-4 decision), he dissented to argue in favor of a broader right to collaterally attack state court convictions.
Another notable vote - this one from last Term - was his dissent in Hamdi (joined by Justice Stevens), vigorously arguing for greater rights for an American detainee."
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