Now, according to the Sunday WaPo, Scalia is the buzz. If Bush decided to choose a current member of the court to elevate, Scalia is the obvious choice. And frankly, I don't think we should waste our resources opposing him. We couldn't win, and moving him up doesn't change the balance of the court? But there was nothing in the WaPo piece that I thought was very persuasive. No question that he would love the job. Who wouldn't. But reports that he is being charming now in a campaign for the job, are just silly. Scalia is famously charming. I've meet him twice at bar functions while in DC (He and I are members of the Illinois Bar) and he is a charming SOB.
What I said in November bears repeating:
I think it's a no-brainer that should a new chief justice be chosen from within the court that would be Scalia. He is the easiest to defend. Thomas also gets mentioned but why fight that fight? Besides, conservative or not, we all know Justice Thomas is not the first choice of the Xtian Soldiers for other reasons.If Estrada doesn't get put up for Chief, he'll get the next spot, and there is plenty of reason to believe there will be another slot. Justice Stevens is 84 and Sandy 74.
But, there is no reason to just assume that a new Chief would be chosen from among the court as everyone in the media seems to do. Although Rehnquist was so chosen, there is no tradition requiring such. In the history of the Supreme Court there have been 16 Chief Justices, and only 4 of them were elevated from Associate Justice (prior to Rehnquist, the last elevation was Justice Stone in 1946).
Bush is free to nominate anyone as Chief, and could just as likely pick Miguel Estrada, who is very young (early 40's) and could be Chief for 40 years! How's that for a legacy! In contrast, Scalia is 68, and no matter how you slice it, has a shorter shelf life.
We need to keep our powder dry on Scalia, and save our resources to fight over a nominee that might actually tip the court. A great stragey for Bush would be to draq us into a fight over Scalia, that we would be doomed to lose, and then put up a facist on the next spot taking advantage of our weakened position (having gone to the matresses and lost on Scalia).