# Why is Scalia not the lock down go-to guy by Bush for Chief Justice? **URL:** \ **Category:** Great Debates\ **Created:** [September 5, 2005, 12:54pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190 "2005-09-05T12:54:10Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [September 5, 2005, 12:54pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/1 "2005-09-05T12:54:10Z")
Less a debate than a sincere political realities question, but I think it would probably be better answered here than elsewhere. Mods move if you must. Why is reliable conservative Scalia not the automatic go-to guy for Bush? Why are other names being floated, including Roberts. Why doesn’t Scalia have a full nelson on this position with "r[elaible conservative" practically tattooed on his chest](http://www.salon.com/comics/boll/2002/10/17/boll/index.html)? I know he’s abrasive, but he’s one of the smartest people on the court. Is he really that much of a divisive force, that even Bush is cautious about recommending him? ---
**Author:** ![Frostillicus](https://avatars.discourse-cdn.com/v4/letter/f/e9bcb4/32.png) [@Frostillicus](https://boards.straightdope.com/u/Frostillicus)\ **Post date:** [September 5, 2005, 1:00pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/2 "2005-09-05T13:00:33Z")
I just saw on Yahoo news that Bush just picked John Roberts to be the next CJ. As to why he bypassed Scalia, who knows? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [September 5, 2005, 1:07pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/3 "2005-09-05T13:07:51Z")
If he nominated Scalia as Chief Justice, then he’d first need to get the Senate to confirm Scalia (which might be tough in itself), then he’d need to confirm somebody else to take Scalia’s place as Associate. That would just be a lot of political capital to spend. ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [September 5, 2005, 1:09pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/4 "2005-09-05T13:09:01Z")
Well… apparently Roberts has been nominated as CG, so he’s definitely not the go- to guy ---
**Author:** ![astro](https://avatars.discourse-cdn.com/v4/letter/a/9dc877/32.png) [@astro](https://boards.straightdope.com/u/astro)\ **Post date:** [September 5, 2005, 1:12pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/5 "2005-09-05T13:12:12Z")
> [@Captain Amazing](#): > > If he nominated Scalia as Chief Justice, then he’d first need to get the Senate to confirm Scalia (which might be tough in itself), then he’d need to confirm somebody else to take Scalia’s place as Associate. That would just be a lot of political capital to spend. Given the events of the past week or so I can understand how he’d want to be parsimonious with his bag of “political capital”. ---
**Author:** ![Big\_Whistle](https://avatars.discourse-cdn.com/v4/letter/b/5f9b8f/32.png) [@Big\_Whistle](https://boards.straightdope.com/u/Big_Whistle)\ **Post date:** [September 5, 2005, 1:23pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/6 "2005-09-05T13:23:26Z")
Justice Scalia would never be accepted by the Senate as a Chief Justice. 1. He isn’t a concensus builder, which the CJ has to try to be. 2. He’s an abrasive ass at times, with a very strong ideology about how jurisprudence on the Supreme Courth should work that isn’t accepted by most of the Republican party, let alone the rest of the nation. 3. He likely doesn’t want the job. I take it no one has to explain why Justice Thomas, who might otherwise be a good pick for the job for a number of reasons, isn’t going to get a nomination for it. ---
**Author:** ![Menocchio](https://avatars.discourse-cdn.com/v4/letter/m/9de053/32.png) [@Menocchio](https://boards.straightdope.com/u/Menocchio)\ **Post date:** [September 5, 2005, 1:42pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/7 "2005-09-05T13:42:37Z")
Plus, unlike with Roberts, we damn well know what Scalia’s opinions are and what kind of CJ he would make. With a cypher like Roberts, the Right can hope that he’ll fall loyally and fully on their side, while the Left has room to hope that he’ll turn out a moderate, or even a stealth liberal like Souter. ---
**Author:** ![waterj2](https://avatars.discourse-cdn.com/v4/letter/w/858c86/32.png) [@waterj2](https://boards.straightdope.com/u/waterj2)\ **Post date:** [September 5, 2005, 3:56pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/8 "2005-09-05T15:56:14Z")
Also, with three confirmations going on in the same session of Congress, the Democrats would take a lot less flack for filibustering the worst one. I don’t think Scalia wants to be hammered by Congress for going on a duck hunting trip with Cheney while Cheney’s case was on the Supreme Court’s docket. Also, rewarding one of the justices who gave Bush the Presidency in the first place would look a bit unseemly. ---
**Author:** ![Arwin](https://avatars.discourse-cdn.com/v4/letter/a/51bf81/32.png) [@Arwin](https://boards.straightdope.com/u/Arwin)\ **Post date:** [September 5, 2005, 4:05pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/9 "2005-09-05T16:05:47Z")
Just a vague remembrance lingering in my memory, but isn’t Roberts also a very good friend? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [September 5, 2005, 4:49pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/10 "2005-09-05T16:49:37Z")
Someone noted in another thread that it’s rare for an Associate Justice to be promoted; usually an outsider is brought in to be Chief Justice. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [September 5, 2005, 4:50pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/11 "2005-09-05T16:50:43Z")
There’s a practical reason why Scalia wasn’t picked: Because it creates yet another set of confirmation hearings. If Scalia is chosen, then you need hearngs for Roberts, hearings for Scalia as CJ, and then hearings to replace Scalia as associate justice. Big pain. That’s probably why 11 out of 16 former chief justices were appointed from outside the court, rather than a sitting justice being elevated to chief. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [September 5, 2005, 4:52pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/12 "2005-09-05T16:52:40Z")
To wander into GQ for a bit, what additional duties and privileges does the Chief Justice actually have, though, beyond the nifty gold robe stripes? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 5, 2005, 4:53pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/13 "2005-09-05T16:53:02Z")
> [@Arwin](#): > > Just a vague remembrance lingering in my memory, but isn’t Roberts also a very good friend? Of whom? Not of Bush’s. You may be thinking of Gonzales (the current A.G.). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 5, 2005, 4:54pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/14 "2005-09-05T16:54:17Z")
> [@Bryan Ekers](#): > > To wander into GQ for a bit, what additional duties and privileges does the Chief Justice actually have, though, beyond the nifty gold robe stripes? Wikipedia is your friend: > [@](#): > > In addition to the duties of the Associate Justices, the Chief Justice has the following duties: > > ``` > * If the Chief Justice is in the majority on a Supreme Court case, he or she may decide to write the Opinion of the Court, or may assign it to an associate justice of his or her choice. > * The Constitution stipulates that the Chief Justice shall preside when the Senate tries an impeachment of the President of the United States. > o Two Chief Justices, Salmon P. Chase and William Rehnquist, have had the duty of presiding over the trial in the Senate that follows an impeachment of the President – Chase in 1868 over the proceedings of President Andrew Johnson and Rehnquist in 1999 over the proceedings against President Bill Clinton. > * Presides over the impeachment trial of the Vice President if the Vice President is serving as Acting President (not a Constitutional responsibility but a rule of the Senate; no Vice President has been impeached, though Spiro Agnew resigned under threat of impeachment, and none has been Acting President for more than a few hours). > * Administers the oath of office at the inauguration of the President of the United States. This is a traditional, not a constitutional, responsibility of the Chief Justice. All federal and state judges, as well as notaries public, are empowered by law to administer oaths and affirmations. > * Serves as the Chancellor of the Smithsonian Institution. > * Serves as the head of the Judicial Conference of the United States, the chief administrative body of the U.S. federal courts. The Judicial Conference is empowered by the Rules Enabling Act to promulgate rules to ensure the smooth operation of the federal courts. Major portions of the Federal Rules of Civil Procedure and Evidence have been adopted by most state legislatures and are considered canonical by American law schools. > > ``` ---
**Author:** ![jshore](https://avatars.discourse-cdn.com/v4/letter/j/b5e925/32.png) [@jshore](https://boards.straightdope.com/u/jshore)\ **Post date:** [September 5, 2005, 5:40pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/15 "2005-09-05T17:40:06Z")
I hardly think that someone who has made a career out of writing dissents in which he basically tells the majority of justices that they are idiots and nincompoops would be the best choice for the role of chief justice. Of course, every justice has the occasional sharply worded dissent. But, Scalia seems to have made it such a regular practice that I can’t help but imagine that even moderately conservative justices like O’Connor and Kennedy find him a little hard to take. ---
**Author:** ![rjung](https://avatars.discourse-cdn.com/v4/letter/r/45deac/32.png) [@rjung](https://boards.straightdope.com/u/rjung)\ **Post date:** [September 5, 2005, 7:51pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/16 "2005-09-05T19:51:33Z")
> [@Bryan Ekers](#): > > To wander into GQ for a bit, what additional duties and privileges does the Chief Justice actually have, though, beyond the nifty gold robe stripes? Note that the gold robe stripes were something Rehnquist had sewn on his robes because he thought they were nifty – he first saw them in a Gilbert & Sullivan musical – and not a title of office or anything. Yes, kids, the previous chief justice of the United States was holding hearings with the judicial equivalent of a _Star Trek_ costume… As for nominating Roberts as CJ – that just proves Bush is absol-fuckin’-insane… ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [September 5, 2005, 7:57pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/17 "2005-09-05T19:57:13Z")
> [@rjung](#): > > Note that the gold robe stripes were something Rehnquist had sewn on his robes because he thought they were nifty – he first saw them in a Gilbert & Sullivan musical – and not a title of office or anything. Yes, kids, the previous chief justice of the United States was holding hearings with the judicial equivalent of a _Star Trek_ costume… > > As for nominating Roberts as CJ – that just proves Bush is absol-fuckin’-insane… No, it proves that Rehnquist had a sense of humor and didn’t take himself too seriously. I know humor is a difficult concept for you rjung, but try to keep up. ---
**Author:** ![Measure\_for\_Measure](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/measure_for_measure/32/557_2.png) [@Measure\_for\_Measure](https://boards.straightdope.com/u/Measure_for_Measure)\ **Post date:** [September 5, 2005, 8:07pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/18 "2005-09-05T20:07:00Z")
I confess that I originally thought that Scalia would be a shoo-in, given his reliability. That said, Roberts is a smart choice. A conciliator makes a better case-manager than an abrasive gadfly. Roberts will do a better job of advancing the conservative agenda. ---
**Author:** ![astorian](https://avatars.discourse-cdn.com/v4/letter/a/ad7895/32.png) [@astorian](https://boards.straightdope.com/u/astorian)\ **Post date:** [September 5, 2005, 8:08pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/19 "2005-09-05T20:08:16Z")
More seriously, even if Biush WANTED to nominate Scalia, and even if Scalia could be confirmed easily (two very questionable assumptions), Scalia would be a bad fit even from a conservative standpoint. Look, I think William Brennan was a major force for ill in this country, but I have to give the devil his due: he was a SUPERB diplomat, a man of immense charm and persoinal magnetism. He was a dealmaker and a consensus builder, which is absolutely essential if you want to win in a divided Court. Scalia is a brilliant man, but he has none of Brennan’s charm or diplomatic skills. Consider this: Which would be better for liberals? A Supreme Court of 8 William Rehnquists and 1 William Brennan, or a Supreme Court of 5 William Rehnquists and 4 Thurgood Marshalls? The answer is… the liberals would be better off with 8 Rehnquists and 1 Brennan. Because Brennan was so smart, charming, so tactful, and had such personal charisma, I suspect he’d piece together a 5-man majority for his side every so often. Thurgood Marshall, on the other hand, was a dullard and a lazy boor who could NEVER have swayed a single vote to his side in a single case if his life depended on it. Now, turn the tables- imagine a Supreme Court of 5 Anthony Kennedys and 4 Antonin Scalias. I swear, that Court would go liberal more often than not, because Scalia would so utterly antagonize and alienate the Kennedys (even when Scalia was right… no, ESPECIALLY when Scalia was right) that the Kennedys would start drifting leftward, and would completely tune out everything Scalia said. Thing is, in a legislature or on a court, you can’t afford to have permanent friends or permanent enemies. And even if you think (heck, even if you KNOW) a fellow legislator or jurist is a dishonest moron, you’re out of your mind to let him or her know that, let alone to put it in writing. Scalia VOTES the way I’d like him to 95% of the time, but that’s not enough to make him a great justice. A great justice has to be more than an automatic vote in my column. He has to be someone who can sway the opposition and get their votes from time to time. Scalia has shown no ability or desire to do that. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [September 5, 2005, 8:24pm UTC](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190/20 "2005-09-05T20:24:08Z")
> [@rjung](#): > > Note that the gold robe stripes were something Rehnquist had sewn on his robes because he thought they were nifty – he first saw them in a Gilbert & Sullivan musical – and not a title of office or anything. Yes, kids, the previous chief justice of the United States was holding hearings with the judicial equivalent of a _Star Trek_ costume… > > As for nominating Roberts as CJ – that just proves Bush is absol-fuckin’-insane… Actually, that’s the only thing I liked about him. That’s pretty damned cool, I think. [Next page](https://boards.straightdope.com/t/why-is-scalia-not-the-lock-down-go-to-guy-by-bush-for-chief-justice/320190.md?page=2)