Rehnquist's history shows partisan side

For Chief Justice William Rehnquist, presiding over Mr. Clinton's impeachment trial caps a half-century legal career and a lifetime of political partisanship.

January 12, 1999|By David M. O'Brien

AMONG the ironies surrounding the Senate's impeachment trial of President Clinton is that this political trial of the century is presided over by one of the most partisan of Supreme Court chief justices, William H. Rehnquist. Because justices are supposed to be removed from politics, the fact that Mr. Rehnquist has hovered on the sidelines of this controversy all along is often overlooked.

Yet, Mr. Rehnquist had a hand in numerous decisions now culminating in the Senate's trial. In 1988, he wrote the Supreme Court's opinion upholding the constitutionality of independent counsels. Subsequently, he named the three-judge panel that appointed independent counsel Kenneth W. Starr and expanded his investigation from Whitewater to former White House intern Monica Lewinsky. He handed down the court's decision on Clinton vs. Jones in 1997, rendering the president vulnerable while in office to civil lawsuits for alleged offenses committed before entering the White House.

It is easy to forget, as well, the twists and turns of Mr. Rehnquist's beleaguered career that now place him in the vortex of the political controversy engulfing the White House. Richard Nixon, the only president to resign in the face of impeachment, initially named Mr. Rehnquist to the court. Subsequently, he was elevated to the chief justiceship by Ronald Reagan.

Both of his confirmation hearings turned into bitter Senate battles, not unlike that now over impeachment. Along with being a longtime GOP loyalist and amateur historian, Mr. Rehnquist wrote a book, "Grand Inquests," about the 1868 impeachment and trial of President Andrew Johnson, the only other president to be impeached.

Mr. Rehnquist's own ambitious partisanship began with his childhood in a Republican household in Shorewood, Wis. After serving in the Army during World War II, his keen interest in law, politics and history led him to earn two master's of arts degrees in political science, from Harvard University and Stanford University, before graduating first in his class from Stanford Law School in 1952.

Landmark case

Mr. Rehnquist then worked for 18 months as a law clerk to Justice Robert H. Jackson. At that time, the Supreme Court was considering what would become its landmark 1954 school-desegregation ruling, Brown vs. Board of Education. In a memo to Jackson, Mr. Rehnquist tried to persuade his justice to uphold the doctrine of "separate but equal."

He also lamented that "liberal" law clerks "excoriated" him for his "unpopular and unhumanitarian position," but he refused to yield. Jackson was unpersuaded and supported the court's unanimous decision in Brown, yet the memo remains, revealing and emblematic of Mr. Rehnquist's uncompromising partisanship.

Moreover, after moving into private practice in Phoenix, in the ugly aftermath of widespread opposition to Brown, Mr. Rehnquist sharply criticized the court, complaining, in a 1957 U.S. News & World Report article, that law clerks exercise too much influence over the justices.

In 1968, Mr. Rehnquist joined Nixon's administration, as an assistant attorney general overseeing the appointment of federal judges. Within three years, Nixon had nominated him to the Supreme Court.

At his Senate confirmation hearings in 1971, Mr. Rehnquist's strident conservatism ensnared him in controversy. His memo on Brown resurfaced. Yet, he denied it reflected his views, insisting instead that it registered Jackson's position. The historical evidence, however, points incontrovertibly to the contrary. Even Jackson's secretary denounced Mr. Rehnquist for defaming a great justice. Nonetheless, the Senate confirmed him, 68 to 26.

On Jan. 7, 1972, at age 47, Mr. Rehnquist was sworn in as associate justice. On the bench, he quickly staked out far-right positions on states rights and civil liberties.

He was outspoken off the bench as well. Next to Chief Justice Warren E. Burger, he gave more speeches than any other justice. He vigorously defended his judicial conservatism and the power of presidents to pack the court with their ideological kin. His former law clerks went on to work in the Reagan administration, and he became a kind of idol for those waging the "Reagan revolution."

When Burger announced he would retire in 1986, Mr. Rehnquist's elevation by Mr. Reagan was politically symbolic and strategic. His jurisprudence was closely identified with that of the administration.

The Senate Judiciary Committee's hearings on Mr. Rehnquist's nomination as chief justice were as hotly partisan as those 15 years earlier. Once again, he disavowed his Brown memo. The lingering cloud of implausible denials, though, further darkened amid new allegations that, in the 1960s, Mr. Rehnquist participated in GOP efforts to intimidate black voters at polling places in Phoenix. Still, the Senate confirmed him, although by a narrower margin, 65 to 33.

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