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Change in the Supreme Court

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THERE is a clear risk of overanalysis at a moment of historic change, such as now with the stepping down of Chief Justice Warren E. Burger from the United States Supreme Court and the nominations of Associate Justice William H. Rehnquist to succeed Mr. Burger and of Antonin Scalia as a new associate justice. New responsibilities can have their impact on individuals like Mr. Rehnquist and Mr. Scalia and alter the path of their previous judicial records. There is no way to determine whether the new cases that will be brought before the high court over the next few years, not to mention the next decade or more that they may serve, will touch on the areas in which their reputations have been made; more than likely they will not. The weight of legal precedent will bear on their decisions. So will the importuning, however they perceive it, of the public will as the debate on national issues evolves. So will their own conscience. The regimen of their past professional training. The arguments of legal scholars. The discipline of internal high-court debate.

It can broadly be said that the two nominees advanced for Senate confirmation, one already sitting on the Supreme Court and the other a federal appeals court judge, reflect the Reagan administration's conservative preferences. The two are regarded as intelligent, persistent, and persuasive. They will come under close scrutiny during Senate confirmation hearings for their views on such politically sensitive topics as abortion, libel law, the status of federal agencies, and church-state relations, where warning flags have already been raised. Their professional credentials, however, would appear to give them the benefit of the doubt for Senate approval.


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