Wednesday, January 05, 2005

Chief Justice Clarence Thomas?

My reading through various blogs about the possibility of the elevation of Justice Clarence Thomas to be Chief Justice talk a great deal about discussion of Thomas' ideology (here and here), his age, his adherence or lack thereof about to natural law interpretation, and comparisons to Justice Scalia (who has also been mentioned as a possible successor to ailing Chief Justice William Rehnquist. (Big Hat tip to SCOTUS Blog)

In particular, Professor Hasen talks about the likely media furor over Justice Thomas' confirmation hearings were he to be nominate. In a debate with Jack Balkin, Prof. Hasen thinks that the media circus will be much bigger than Justice Thomas' first confirmation hearing. I tend to agree with Professor Hasen, but not for the same reasons.

The media circus will intially focus on Thomas and Anita Hill, but then quickly veer to race. Thomas would be the first minority ever considered for Chief Justice, a matter than certainly has not escaped attention. While I am sure that many minority leaders considered Thomas a "traitor" to his race, I think that the racial issue, wrongly I might add, may dominate the media initially. Certainly, Professor Balkin has a good point in that Justice Thomas may be too inconsistent and perhaps a touch unjust in his opinions, but that shouldn't disqualify him from consideration.

The public may also put too much emphasis on the title of Chief Justice. The Chief is generally thought of as "first among equals" meaning that his opinions carry no extra weight in the Court, rather, Thomas or any Chief Justice is saddled with more administrative responsiblities. The Chief Justice by all accounts from Court watchers can influence, but perhaps no more than any other Justice.

I wouldn't mind seeing Scalia or Thomas as the Chief Justice, I don't think either is a big mystery. The mystery would be how the Democrats handle the confirmation process. But more on that later.

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