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Analysis

To Some, 'Chief Justice Scalia' Has a Certain Ring

By Charles Lane
Washington Post Staff Writer
Sunday, January 30, 2005; Page A07

Justice Antonin Scalia struck a pessimistic note when he spoke at the right-of-center Ethics and Public Policy Center here last Sept. 20. Lamenting his inability to stop the Supreme Court's slide away from the principles of judicial restraint he espouses, Scalia said he felt like "Frodo in 'The Lord of the Rings,' soldiering on."

Scalia's mood was much brighter on Jan. 13, when he appeared at the American University's Washington College of Law for an unusual televised "conversation" on international law with his liberal colleague Stephen G. Breyer -- a frequent target of Scalia's barbs in written opinions. The two traded quips and generally disagreed without being disagreeable. "Stephen and I do not fight," Scalia joshed. "We do not fight at all."

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Some Scalia-watchers think they know what accounts for his sunnier public face of late: On Nov. 2, President Bush was reelected and Republicans captured 55 seats in the Senate. They believe that Scalia -- seeing an opportunity to move up to chief justice if the current chief, William H. Rehnquist, who is 80 and seriously ill, leaves -- is fine-tuning his image.

Scalia has launched a "charm initiative," said Ralph G. Neas, president of the liberal organization People for the American Way, which would strongly oppose a Scalia promotion.

Friends and associates of Scalia see it differently. He is just being himself, they said, and not encouraging Scalia-for-chief talk even though he would take the job if it were offered.

"You can't beat the symbolism of being chief justice of the United States," said American Civil Liberties Union president Nadine Strossen, who has been on good terms with Scalia for years despite differences on many issues. "Especially if you have such strong ideological beliefs, it would be a great platform."

What no one doubts is that the Bush administration would at least consider Scalia for chief justice. He would be nominated for the court's top slot while a conservative jurist from the lower courts would be selected to replace him as an associate justice, the scenario goes.

"It's entirely possible," said C. Boyden Gray, White House counsel in the George H.W. Bush administration who now heads the Committee for Justice, which supports Bush administration federal court nominees.

That is how the Reagan administration handled the retirement of Chief Justice Warren E. Burger in 1986, naming then-Associate Justice Rehnquist to succeed Burger and picking Scalia to replace Rehnquist. While Democrats in the Senate pounded Rehnquist over his record on the court, Scalia skated to a 98 to 0 confirmation vote, in part because liberal advocacy groups had only enough time, money and energy to attack one nominee at a time.

Some Republicans think the same play would work in 2005. "Scalia's a very, very big blocker," one knowledgeable source said.

For the White House, promoting Scalia, an opponent of the 1973 Roe v. Wade decision that established a constitutional right to abortion, would be a large political plus with the Republican Party's conservative base.

The downsides of a Scalia appointment are his age, 68, which might mean his tenure would be relatively brief, and the prospect that the Democrats, prodded by abortion rights constituencies, could mount a filibuster, making it impossible to confirm either Scalia or a new associate justice.

Given those uncertainties, Scalia "is probably ambivalent. He wouldn't mind the vindication and the recognition, but he is probably much more concerned with getting other justices on the court he can work with," said William P. Barr, who served as attorney general in the George H.W. Bush administration.

Still, Scalia's presumed willingness to take the job contrasts with the reported attitude of Justice Clarence Thomas, another conservative sometimes mentioned as a potential Bush pick for chief justice, Republican sources said.


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