According to Thomas's friends, he has let it be known he does not relish a repeat of the 1991 confirmation hearing at which opponents aired charges that he had sexually harassed a female staffer.
"It would be another ordeal. What does he need that for?" said one close friend, who asked not to be identified. "If the president asked him, he'll say yes, but he'd much rather not be asked."
Scalia's chances for confirmation may have received a boost when Senate Minority Leader Harry M. Reid (D-Nev.) said in interviews after the election that he might not oppose him for chief justice "if he can overcome the ethics problems that have arisen since he was selected as a justice of the Supreme Court." That was a reference to criticism Scalia faced a year ago for going duck hunting with Vice President Cheney while the court was considering a case involving Cheney.
Reid ruled out Thomas, whom he termed an "embarrassment" to the court. Earlier this month he retreated slightly, telling ABC's "This Week" that he should merely have said that he voted against Thomas's nomination the first time and would do so again.
The Cheney controversy was the low point of a difficult period for Scalia that began in June 2003, when the court abolished state laws against private consensual homosexual conduct, over a Scalia dissent in which he accused his colleagues of bowing to the fashionable views of a legal and academic "culture."
The butt of jokes on late-night TV because of the duck-hunting trip, Scalia fired back at the media in an unusual 21-page memo explaining that he would not recuse himself from the Cheney case.
But Scalia's appearance with Breyer, who voted in the majority in the 2003 case on homosexual conduct, showed that, however sharp his printed words may seem, he and a liberal can still get along.
That he permitted C-SPAN to cover the event live also may mean a thaw in the relationship between Scalia and the media, which turned frosty in April 2004 after a federal marshal guarding him accosted two reporters and ordered them to erase their audiotapes, citing a Scalia policy. The justice, who did not order the seizure, apologized.
Scalia had reached out to the media even before Nov. 2. Reporter Tony Mauro of American Lawyer Media, whose articles on the Supreme Court are widely read in the legal community, confirmed that he received a friendly letter Oct. 29 from Scalia, thanking him for publishing an essay by his son, Matthew Scalia, an Army captain who served in Iraq.
It was quite unlike a letter to the editor Scalia wrote in 2000 referring to Mauro as "Mauronic" for writing a story Scalia considered unfair.
How much Scalia's elevation, if it were to happen, would change the court is an open question. Neas says Scalia would use the office "to radically transform the court."
Other than the power to assign opinion-writing duties when in the majority, and to preside at conference and oral arguments, the chief justice has few formal means of controlling his colleagues. Scalia might even tone down his dissents in the interest of court unity, as did Rehnquist, who was known as the "Lone Ranger" for his frequent dissents as an associate justice.
"It doesn't make a bit of difference who is the chief justice, except symbolically," Strossen of the ACLU said.
