The Next Chief Justice

The next president will likely have the opportunity to appoint several Supreme Court judges. If a Democratic president is elected it is probable that the balance will again shift away from the rule of law and return to legislating from the bench laws that could not be enacted under the discipline of garnering a democratic majority. If a Republican president is elected, he or she will most likely be replacing Conservative judges and may have little net effect on the balance of the Supreme Court.

In a recent Weekly Standard article, Andrew Peyton Thomas the makes the ironic argument that America's leading Conservative is Supreme Court Justice Clarence Thomas. The irony is two-fold. Bush was under pressure by the chattering classes to appoint an African-American to fill the "black" vacancy left by Thurgood Marshall. By yielding to the pressure to use race as a criterion, Bush appointed a justice that would champion a color-blind justice system. The second irony is that forces that opposed his selection in a mean-spirited personal attack have been revealed as hypocrites. Feminist groups used last-minute unsupported allegations to smear Thomas, while they turned a blind eye to substantiated allegations of far cruder and perhaps illegal behavior by President Clinton, a political ally. In the words of Andrew Thomas:

"Except for Ronald Reagan, Clarence Thomas is arguably the only major figure in recent American public life to have collided full force with the liberal establishment and emerged the stronger."

The conventional wisdom is that Thomas is a judicial clone of Anthony Scalia, following in rigid lock step like an obtuse, obsequious lapdog. There is the not-so-subtle implication that perhaps Thomas is not up to the intellectual challenge of being on the Court. The reality is that as early as three years after his appointment, he was the second most prolific opinion writer of the nine justices. Even more than Scalia, Thomas is now the champion of the legal theory of original understanding, oft times tugging Scalia to the Right.

Chief Justice William Rehnquist may retire during the next presidential term. A Republican president could do far worst than moving Thomas into the Chief Justice slot. Given Thomas's relative youth, he could serve as a Constitutional rudder well into the next century. Such a steady rudder is desperately needed to navigate the tempests blown up to the national level by judicial intemperance in lower federal courts.

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