October 16, 2005

Scalia or Thomas - Which One Do the "Conservatives" Really Want?

Everything you've been hearing from the outraged radical right (say, those like Manny Miranda who I can't believe that anyone, Republican or Democrat, really takes seriously, or Robert Bork) who's up in arms over the Miers nomination sounds a lot alike in when it comes to the justice-to-be THEY would have liked to have seen appointed. They want a "strict constructionist" who won't "legislate from the bench" or be an "activist". They want someone who'll hold to "founding" principles and not see the constitution as a "living document". Now, ignoring the fact that some of those preferences are at least partially contradictory, and in some cases clearly not what the speakers of this rhetoric obviously want (many of them are gleeful at the propect of an activist court and want exactly that), and of course the possibility that Miers might yet turn out to be just what they want in terms of substance (or as close to that as possible), they seem to agree that the perfect justice would be another Scalia or Thomas.

The problem with this part of their rhetoric though is that Scalia and Thomas are different in some key respects. For example, Thomas, as the Supreme Court's most ardent originalism, has the least respect for precedent and can therefore look like an "activist" a lot of the time. Scalia, on the other hand is more the strict textualist. And on top of that he's the one who really loves to fulminate outrage in his prose at the moral swamp he thinks America is becoming (why does Antonin Scalia hate Ameria? I kid - sort of). Will Baude wrote a good article on their differences in 2004, and they've continued vote differently on some key cases since then. For example, last term the "conservative" wing of the Court splintered in Granholm v. Heald, the big interstate wine case with Scalia and Kennedy in the majority and Thomas and Rehnquist in dissent, and in Raich, the famous case that came out of California regarding that state's medical marijuana laws, which the Court struck down in a 6-3 vote that featured Scalia and Kennedy again in the majority, and Rehnquist and Thomas again in dissent (once O'Connor retires Thomas will be the only dissenter from Raich still on the Court).

So presuming you are a Miers critic and want another Scalia or Thomas, or you are the president and also want another Scalia or Thomas (as he's said many times), well, which one do you REALLY want? Another Scalia? Or another Thomas?

Posted by armand at October 16, 2005 10:22 AM | TrackBack | Posted to Law and the Courts

Post a comment

Remember personal info?