Rehnquist's views argue for his removal

July 31, 2005|By Mark A. Graber

WILLIAM H. REHNQUIST remains on the federal bench in large part because his fellow citizens emphatically reject the chief justice's fundamental values. Most Americans believe that decent societies do not fire cancer patients who can perform their jobs with a little assistance. Justice Rehnquist disagrees.

His previous opinions insist that state governments remain constitutionally free to cashier the ill and disabled whenever their termination might promote government efficiency. If these were our nation's basic principles, surely an overwhelming consensus would demand the resignation or impeachment of a federal justice who, because of cancer, does not attend court regularly, no longer writes his fair share of opinions and pens weak opinions when he does write.

Americans believe that government efficiency must sometimes be tempered with humanity. Republicans and Democrats in Congress articulated this national consensus when they passed the Americans with Disabilities Act of 1990.

A crucial provision of that measure requires state and private employers to make "reasonable accommodations" for disabled workers who are otherwise capable of performing their professional duties. Severe sacrifices were ruled out. No employer need accommodate a disabled worker when that would cause "undue hardship." Minor inconvenience, however, was not deemed a sufficient justification for failing to hire or maintain disabled workers otherwise able to perform their jobs.

Patricia Garrett soon learned that Justice Rehnquist regards government efficiency as the higher constitutional value.

Ms. Garrett sued under the ADA after she was demoted solely because her supervisor thought a cancer survivor could not handle being director of nursing at the University of Alabama's medical center in Birmingham. The chief justice rejected her claim.

Justice Rehnquist maintained that the federal government could not constitutionally pass laws requiring state governments to respect broadly shared notions of decency. The 14th Amendment authorizes Congress "to enforce, by appropriate legislation," the constitutional guarantee of "equal protection of the laws," but Justice Rehnquist insisted that Congress had not demonstrated the pattern of irrational discrimination against the ill and disabled necessary to justify such legislation.

In that 5-4 decision in 2001, Justice Rehnquist asserted that states should never be forced to make any concession to the special needs of the ill when doing so might interfere in any way with the routine functions of state bureaucracies. "It would be entirely rational (and therefore constitutional)," he wrote, "for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities."

Unlike Justices Sandra Day O'Connor and Anthony M. Kennedy, who, in concurring opinions, described the ADA as a "milestone on the path to a more decent, tolerant, progressive society," the chief justice gave no hint that he approved the federal legislation on behalf of the disabled. He saw nothing amiss with firing a cancer patient who, with minimal assistance, could perform all of her professional duties.

If firing rather than accommodating cancer patients is entirely rational when staffing state hospitals, surely the same principle should govern staffing the federal judiciary.

After all, a fundamental principle of American government is that our officials are governed by the same rules that govern us. Moreover, the efficiency costs imposed by a director of nursing whose cancer is in remission must be minuscule when compared with the costs of having an elderly chief justice whose cancer is probably terminal.

The Constitution declares that "the judges ... shall hold their offices during good behavior," but no one thinks a person who fails to show up for work regularly is exhibiting good behavior. Those historically inclined might note that during the Jefferson administration, a Congress that contained many framers impeached a federal judge, John Pickering, who was physically unable to perform his duties adequately.

The sentiment underlying the ADA is one Justice Rehnquist has repeatedly insisted has no place in our constitutional law. Most Americans believe that government must act humanely as well as rationally. While we value efficient state processes, we insist that decency must at times trump routine bureaucratic needs.

Justice Rehnquist has always had different constitutional priorities. In 1974, he insisted that state-chartered utility companies were not constitutionally obligated to provide notice and hearings before they terminated electrical service to poor people.

His death penalty decisions constantly call for streamlining the capital appeals process, even when a more efficient process risks executing innocent people or people whose constitutional rights may have been violated at trial.

No good reason exists for treating federal judges any differently than Justice Rehnquist has treated other unfortunate Americans. If American constitutional law is to place its higher priority on efficient government, the constitutional imperative to secure the smooth functioning of the federal judiciary compels Congress to impeach the chief justice and have him replaced with a jurist more up to the rigors of the job. Just ask Patricia Garrett's supervisor.

Mark A. Graber is a professor of government at the University of Maryland, College Park and a professor of law at the UM School of Law.

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