Choosing One's Battles

At first I disbelieved the reports (here and here) that Clarence Thomas was slated to be elevated to chief justice just as soon as a very ill William Rehnquist either retires or passes away. After all, the original source was Drudge, and he's not exactly what you'd call reliable.

Let's suppose for a moment that the Bush administration is indeed seriously considering elevating Thomas---the idea doesn't seem so absurd on further reflection. Is this really the fight that Democrats should stake all their remaining political assets on? I concede readily that a Thomas Supreme Court would be worse than a travesty, but as far as I know, the chief justice's powers are largely ceremonial beyond assigning associate justices to write opinions over which he has no special control [ed update: the chief justice also presides over presidential impeachment hearings--um, ed.].

In other words, if Rehnquist retires or dies, Thomas becomes chief justice, and Bush tries to appoint another aggressively conservative justice to fill Rehnquist's vacancy, the basic ideological composition of the court will not change. The same configuration will still obtain on the fundamental issues over which the court has influence. Sure, it would have been nice if Kerry had won and thus had the choice of Rehnquist's successor under his discretion, but Kerry lost, so our primary concern is rearguard action. With that in mind, as well as the fact that the Democrats have very little leverage that they can apply, might it not be better to save their muscle and their filibustering power to prevent, say, the decisive shift that would occur if John Paul Stevens (age 83) were to be replaced by another Scalia protege?

In short, replacing Rehnquist with someone who thinks like Rehnquist means several more decades of votes identical to the ones Rehnquist would have cast; whereas replacing Stevens with someone like Rehnquist (or Scalia!) would be a disaster for virtually every civil libertarian concern. Maybe the Democrats can mount a defense on both fronts, but I doubt it, and if they're forced to choose, I think the right choice is obvious.