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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Sunday, September 04, 2005 ::

    A Nixonian law-and-order kind of guy, he was Nixon's only success, in four Court vacancies, in appointing a consistent conservative. Once there, he often took on the role of the isolated dissenting prophet of the conservative vision, a role he later passed on to Our Hero, who arguably has now (in part) passed it on to Justice Thomas.

    I thought he was sometimes quite wrong. It was a shame, for instance, that in Maryland v. Craig, in his law-and-order zeal, he failed to see the luminous correctness of Justice Scalia's original-intent dissent. But, for having originally and consistently stood as a bulwark against Roe, Rehnquist has earned the praised of what one hopes will be wiser generations of the future.

    Thoughtful liberal academics are noting the late Chief's abilities. UVa's A.E. Dick Howard says:
    The next chief justice, whether chosen from within or outside the court, has a very high mark to follow. Ideology aside, it's going to be difficult to run the court any better than he did. We will look back on the Rehnquist court as one of the smoothest in the court's history.
    One hopes (but scarcely believes) that liberals are embarrassed by the antics of Alan Dershowitz, who barely waited for the body to get cold before uncorking all the slanders that were aired, to no avail, when Rehnquist was elevated to Chief. OpinionJournal writes here about Dershowitz's "jaw-dropping performance."

    Whom should Bush nominate -- and should he switch Roberts's nomination to Chief and then pick someone else for the O'Connor seat? Roberts strikes me as a "Chiefy" type.


    The New York Times mentions Brown here.

    Emily Bazelon writes at Slate that Gonzalez is now a possibility because conservatives have been thrown their bone with the Roberts nomination. WRONG-O.

    I'm not among those arguing Roberts isn't conservative enough, but he certainly has not left much of a conservative paper-trail, and alternatives who did were available. The biggest fear of conservatives, re S.Ct. nominations, is that the Left will succeed in setting up Roberts as the right-most edge of possiblity. Bazelon's column illustrates this perfectly.

    We'll hear a lot in the near future: "You got Roberts, what more could you want?!" The answer: Jones. Luttig. Garza. Alito. Owen. Brown. Roberts is good, but he doesn't set conservatives dancing in the streets. His cautious career demonstrates that he never really wanted to. Thought his bread was better buttered without all that, no doubt. Fair enough. But it would be a mistake for the Bush Administration (a) to think of conservatives as an interest group demanding goodies, and (b), if it commits mistake (a), to think Roberts is goodie enough.

    For Bazelon, Edith Clement is "relatively palatable" (that should be the kiss of death right there), but other women eligible for the High Court -- she specifically names Jones, Owen, and Brown -- are "dragon ladies." Whoa! MRAIRRRRRR! Velvet, Emily, velvet! Good kitty. Now. Why are these ladies so unpalatable to you?
    Owen and Jones don't simply oppose abortion; they've expressed deep disgust for the procedure itself and the feminist principles it symbolizes.
    I'll leave it to Mrs. Roberts and her colleagues at Feminists for Life to debate whether an ideology that despises fertility is really feminist. I'll only note here that even proponents of its continuing legality have "expressed deep disgust for the procedure itself," and that feeling that disgust (whatever conclusions you may draw from it) should be a threshold requirement for "judicial temperament."

    :: David M. Wagner 9:01 PM [+] ::

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