So why in the world do I think it would be a good thing for President Bush to name Justice Scalia or Thomas as ailing Chief Justice Rehnquist’s successor?
For two reasons. First, because Bush will have to burn an enormous quantity of political capital to get either of them confirmed. And second, because neither of them would likely be a very effective Chief Justice.
The first point is pretty much a no-brainer. Both Scalia and Thomas are extremely well-known, both hold views that are generally on the far right wing of the legal community, and a nomination of either would therefore result in a confirmation battle so bloody that it would make the Bork fiasco look like a tea party. Bush would really have to go to the mat to get either of these guys confirmed. Not that he would necessarily see that as an obstacle: Bush has already said that he intends to spend the political capital that he supposedly gained in the November election. But that capital is not unlimited, so let’s hope he chooses to spend it foolishly on things that won’t really further his agenda.
And why wouldn’t the elevation of Scalia or Thomas to Chief Justice further the Bush agenda? This brings us to the second point: because neither of them would be a very effective Chief Justice. Scalia’s opinions (especially his dissents) are an object lesson in how to alienate your colleagues. He is so convinced of the rightness of his often-extreme views that he thinks anyone who disagrees with him is stupid – and he frequently says so (see this opinion, in which he famously opined that Justice O’Connor’s views were "irrational" and "cannot be taken seriously"). Predictably, the result is that Scalia is marginalized within the Court, a perpetual right-wing dissenter who at this point has so irritated the other Justices that he couldn’t generate consensus around his views even if he wanted to.
Thomas is a somewhat more complicated story. He lacks Scalia’s overly aggressive and arrogant style, so he has not marginalized himself within the Court in the way that Scalia has. And early dismissive assessments of him as a "Scalia clone" have faded as he stakes out his own positions. But those positions are in important respects even more extreme than Scalia’s (three modest examples: he is the only Justice who agreed with the government’s position in the recent terrorism cases; he is the only Justice to have advocated for wholesale abandonment of the Court’s post-New Deal commerce clause jurisprudence, a position that would drastically cut back on Congress’s power to legislate; and he has indicated a willingness to wipe out most of administrative law as we know it). And it’s hard to imagine someone with views as extreme as Thomas’s having much influence over his colleagues, however well-liked he may be. So if a Chief Justice Thomas wanted to have any real influence over his colleagues, he would probably either have to moderate his views substantially, or resign himself to remaining an outlier. (One caveat: Rehnquist’s views were often well outside the mainstream at the time that Rehnquist joined the Court in 1972, and he frequently dissented alone. But even Rehnquist never called for the wholesale rejection of stare decisis, the doctrine of adherence to previously-decided cases, as Thomas apparently has.) Also, Justice Thomas did not enjoy the process of Senate confirmation last time (recall his "high-tech lynching for uppity blacks" comment), and one wonders whether he really wants to put Anita Hill and all the rest of it back on the nation’s front pages.
This post is already too long. But my point is simply this: the Chief Justice has only one vote, just like all the other Justices. The factors that make someone an effective Chief Justice are intangible and difficult to predict in advance, but Scalia and Thomas seem unlikely to fit the bill. And, of course, Rehnquist is already on record as wanting to overturn Roe v. Wade, so filling his seat with another anti-Roe partisan (like Scalia or Thomas) wouldn’t much alter the balance on the Court on that or other hot-button issues. So if Bush picks Scalia or Thomas, by all means pull out all the stops to derail the nomination. But if the nomination is finally confirmed, smile quietly to yourself in the knowledge that Bush has spent a lot of capital on something that may help him less than he thinks.