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Bench Memos

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Chief Justice Breyer?



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At the same CED forum today at which the Zogby poll results were released, AEI’s Norm Ornstein stated that President Bush can choose between “temperate” nominees to the Supreme Court and “in-your-face” nominees. As “temperate” nominees, in the event the chief justice resigns, Ornstein cited elevating Stephen Breyer to chief justice and nominating John Roberts as associate justice. His example of “in-your-face” nominees was Scalia as chief justice and Janice Rogers Brown as associate justice.

I have a great deal of respect for Justice Breyer’s intellect (as well as for Norm Ornstein’s). But the idea that it would be “temperate”–as opposed to abject surrender–for the President to appoint as chief justice someone who is (among other things) the author of the ghastly partial-birth abortion ruling in Stenberg v. Carhart, a former staffer to Ted Kennedy, and an appointee of Presidents Clinton and Carter is, I think, an indication of how unhinged even otherwise very reasonable Democrats have become on judicial nominations.

One can, of course, argue that it makes little difference whether Breyer is an associate justice or chief justice, as he has only a single vote either way and the powers of the chief are not considerable. But the symbolic significance of elevating Breyer–and thereby crediting and rewarding his unconstrained understanding of the Supreme Court’s role–would be devastating.

President Bush has won two elections in which he campaigned on the promise that he would appoint judges like Scalia and Thomas. If he is to elevate an existing justice to chief justice, Scalia and Thomas are his two alternatives.



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