Lone voice still leads Rehnquist

August 22, 2005|By Harvey Rishikof

WASHINGTON - Supreme Court Chief Justice William H. Rehnquist is ending his judicial career very much like the way he began.

When Mr. Rehnquist first joined the court, he marked his early years with a series of solo dissents that earned him the nickname of the "Lone Ranger." His clerks even presented him with a Lone Ranger doll that he placed on his mantle in his chambers. From the beginning, he exhibited a strong independent streak and a commitment to follow his own judicial philosophy.

To place his current stance on retirement in context, it may be helpful to appreciate the core values that have marked his tenure in office.

Reflecting the Barry Goldwater Republican values he had honed in his practice in Arizona, Mr. Rehnquist reinforced the concept of individual freedom and self-reliance. This approach has continued throughout his judicial career, an inner drive that is not terribly bothered or concerned with outside opinion or favor.

This characteristic "inner voice for what is right" has shaped his judicial vision for good or ill over the last 30-plus years. In fact, it is well known to insiders that his position of doing what he thought was right and fair helped win him the support of Associate Justice William Brennan to become chief when he was elevated from his associate slot. Yet even as a chief who is known for wanting consensus on tough cases, when pressed on issues that are central to his view, he has continued to file lone dissents.

The second theme that has distinguished the chief is his commitment to judicial independence for the federal judiciary. He has been a clear and unwavering voice on this issue and has helped support efforts to export judicial autonomy internationally.

The Rehnquist court has stood for the proposition that the third branch is a co-equal branch of federal government, and he has penned repeated opinions to protect the prerogatives of the Supreme Court and federal jurisdiction. To be sure, he has stated clearly that he does not support increased "federalization" of civil or criminal actions that would clog the federal courts with issues better left to the states. But he has been a staunch supporter of increased pay for federal judges and staff so that the best and the brightest would continue to be attracted to federal judicial service.

Finally, as chief he has been absolute in his commitment to ensure that the office of chief justice, or the court, would never become embroiled in scandal or claims of misuse of public office. During his tenure the Supreme Court has stood out as one of the few national institutions whose members have conducted themselves with integrity and without a whiff of impropriety.

One may not have agreed with the decisions by the court, but no one has ever credibly suggested the court has been "bought" or the court was in the "back pocket" of any administration.

The case that most called into question the independence of the court and the Rehnquist legacy was Bush v. Gore in 2000. The case generated scores of protest and, until the 2004 election, the phrase "president select" was often seen in different pundit editorials.

This case may help explain the current decision by the chief to serve until he no longer is physically able to do the job. It would be very easy for Mr. Rehnquist, himself a twice-named Republican justice, to step down and let President Bush have the opportunity to nominate arguably the most important seat on the court. In fact, many conservatives, for political considerations, and even liberals critical of his jurisprudence, have called for his resignation.

In fathoming the forces that drive Mr. Rehnquist - his inner self-directed voice, his commitment to institutional judicial independence and his desire to protect the reputation of the office of the chief justice - his current stance becomes understandable. His refusal to step down is a clear statement he never voted to ensure that his successor would be chosen by a Republican president. He in the end will continue to frustrate those who have counted on him to carry out the "X" agenda.

The only agenda is the one that satisfies his own inner vision of the rule of law. The Lone Ranger is still in the saddle and will remain so until he alone decides it is time to dismount. By doing so, the legacy of independence both personal and institutional, remains intact.

Harvey Rishikof, an administrative assistant to Chief Justice William H. Rehnquist from 1994 to 1996, is chair, Department of National Security Strategy and professor of national security law at the National War College.

Columnist Cynthia Tucker is on vacation.

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