Posted by Orin Kerr:
Why Thomas Won't Be The Next Chief Justice:
Edward Lazarus offers his take at [1]findlaw.com. The core of the
argument:
Bush will . . . pass over Thomas. Why? Because, I believe, he and
his advisors will ultimately decide that, ironically, appointing
Thomas to be the next Chief Justice would probably disserve their
goal of advancing a more conservative agenda at the Court.
. . .
The most influential Chief Justices - the John Marshalls and Earl
Warrens - have mixed a wise use of [the Chief Justice's] powers
with a keen sense of diplomacy to move the Court in their preferred
direction. But a key ingredient has always been the Chief's
willingness to compromise his own views at times. This willingness
is crucial, for it allows the Chief to create majorities that would
not otherwise exist, and to prevent other justices from taking the
court too far in the wrong direction.
. . . .
Such strategic compromise would hardly seem to be Thomas's strong
suit. To the contrary, the evidence suggests that, unlike the most
effective Chief Justices, Thomas may refuse to ever vote against
his own sincerely-held views. To him, it seems, his vote must
express his view completely and totally; it is not also sometimes a
form of leverage to achieve the best long-term outcome.
As Chief, Thomas would frequently face the unpalatable choice of
either compromising his own views, or letting the real lawmaking at
the Court fall to other justices. Either way, his influence would
be muted. A Chief Justice who frequently writes alone - as Thomas
seems bent on doing - and whose view of the law is idiosyncratic -
as Thomas's plainly is - may be Chief in name only.
In short, from the conservative perspective, it would be far more
effective to keep Thomas as an associate justice.
References
1. http://writ.news.findlaw.com/lazarus/20050106.html
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