Personally, I'd be happier with another Scalia than another Rehnquist. Scalia gives me the impression, more often than not, of a Justice who follows his principles where they lead even if they occasionally lead to results he is not personally happy with. Rehnquist strikes me as the more of the "work backward from the desired result" school of jurisprudence.

Doug wrote:

Personally, I'd be happier with another Scalia than another Rehnquist. Scalia gives me the impression, more often than not, of a Justice who follows his principles where they lead even if they occasionally lead to results he is not personally happy with. Rehnquist strikes me as the more of the "work backward from the desired result" school of jurisprudence.

I don't agree with this characterization of either of them. Thomas is really the most consistent and principled of the justices; Scalia is considerably less so. I don't think one can accuse Rehnquist of working backward from the desired result, but I think he's less consistent than either Scalia or Thomas because he is not particularly ideological. Rehnquist is more of a pragmatist than either Thomas or Scalia. He values precedent more than either of them (far more than Thomas) and generally is not one to make bold, principled statements of ideology. Rehnquist is more of a tinkerer than a bomb thrower. He's more conservative in temperament than in ideology, in the sense that he likes narrow, tempered, technical rulings that don't bring about major changes in the status quo. Thomas and Scalia are both more ideologically-driven than Rehnquist and less conservative in temperament; they'll more happily upset the apple cart if doing so is more consistent with their judicial philosophy (again, Thomas much more so than Scalia in that regard, but Scalia certainly far more than Rehnquist).

Who cares whether their jurisprudence is 'principled' or 'pragmatic'? I care whether they'll play the game in order to achieve the results I want. (As long as they're not, like, crooks or anything.) Everything else is just aesthetics.

Well, there is at least a legal fiction (more in questions of law than in equity, I suppose) that the law is what it is and that judges are merely articulating it and applying it to the facts before them. If that's the case, the judge should be indifferent to what the result is. Law + fact = result, whether you like the result or not.

Certainly I'm oversimplifying and it's arguable that the legal fiction I describe isn't even how the system should work (let alone how it does work), but that's where I'm coming from with my earlier criticism.

Paul wrote:

Who cares whether their jurisprudence is 'principled' or 'pragmatic'? I care whether they'll play the game in order to achieve the results I want. (As long as they're not, like, crooks or anything.) Everything else is just aesthetics.

Well, I care. I much prefer a principled justice like Thomas despite the fact that I often think he is wrong in his conclusions. And I'm going to support Roberts' nomination despite the fact that I'm sure he will reach results I disagree with. Of course, they have yet to find a Justice who didn't sometimes reach results I disagree with.

Paul-

But I don't think anyone is going to reach the result I would want reached in every case. There are two legal scholars I would want on the court more than any others, Randy Barnett and Richard Epstein, but I imagine even with them there would be cases on which we would disagree. So it's not simply a matter of wanting someone who would reach results I would like. Virtually every decision the court makes affects, at least potentially, the scope of liberties that I enjoy and every justice that has ever been on the bench or is likely ever to be on the bench will reach decisions that I believe unfairly or unjustly limits the scope of my liberties in some way. But I cannot oppose every justice, I must find some way to prioritize and balance out what is most important to me.

I know that Roberts is anti-abortion, but while I am nominally pro-choice I don't assign a high value to keeping Roe intact. I agree that, regardless of the outcome, it was a badly reasoned decision. I know that Roberts is an accomodationist on church/state matters, but I don't see any evidence that he is a theocrat and I can live with accomodationism and even admit that there is a solid historical basis for it. I might prefer someone else on the bench, but I see nothing in Roberts' record that is likely to make me stand up and try and stop his nomination. Not true of Bork, for instance, whose nomination I strongly opposed.

This is one of the few times I disagree with Coulter, but criticism from the right takes some of the wind out of the sails from the left. You can't really argue seriously that Roberts is some sort of stealth neo-nazi if Ann Coulter thinks he's some sort of stealth liberal, after all.