Wagner, David, Insight on the News
The chief justice of the United States has not presided over a trial of the chief executive since 1868. William Rehnquist brings expeditious dignity to the role.
When the president of the United States is tried, the chief justice shall preside" With this laconic phrase, the U.S. Constitution (Article I, Section 3, paragraph 6) gives William H. Rehnquist, a conservative Republican and member of the U.S. Supreme Court since 1971, a key role in a Senate trial of President Clinton. (This clause also is the only place where the Constitution says there is even such a thing as a "chief justice" in the United States. Article III, which deals with the federal judiciary, only specifies a Supreme Court.)
Immediately after the House of Representatives voted to impeach Clinton on two counts on Dec. 19, a chorus of voices proclaimed that the chief justice never would have the opportunity to fulfill his constitutional role to preside over a Senate trial of the chief executive. Predictions were that Senate leaders, recognizing the virtual impossibility of assembling a two-thirds majority of senators to convict, likely would attempt to sidestep a trial by proposing a quick compromise on a resolution of censure. Why go through a trial, the argument ran, if the nation already knows the facts and most senators already have made up their minds?
Yet as the date approached for the reconvening of Congress on Jan. 6, more sober counsel argued that the Senate's constitutional duty required that a trial begin and the evidence be presented by the House managers who would serve as prosecutors. Both Senate Majority Leader Trent Lott of Mississippi and Minority Leader Thomas A. Daschle of South Dakota stated that a trial at least must be initiated, thus opening the president to the unpredictable dynamic of the trial process, the complications of the Senate rules and the possible impact of evidence officially received by the House but not presented in the House debate.
Indeed, House Majority Whip Tom DeLay of Texas urged Senators not to make up their minds until they had reviewed for themselves this evidence, which purportedly relates to Jane Doe No. 5 in the Paula Jones lawsuit. Last March, Lisa Myers of NBC News identified Jane Doe No. 5 as Juanita Broaddrick, a Clinton campaign worker who told associates 20 years ago that she was allegedly assaulted and raped by Clinton who was then Arkansas attorney general. Broaddrick later recanted her story, but Jones' lawyers charged that she was bribed and intimidated by Clinton associates to do so.
So the odds are high, as Insight goes to press, that the chief justice will be sitting in an unaccustomed chair in the U.S. Senate chamber directing the sergeant at arms to proclaim the words required by Senate rule and custom: "Hear ye! Hear ye! All persons are commanded to keep silence, on pain of imprisonment, while the House of Representatives is exhibiting to the Senate of the United States articles of impeachment against William Jefferson Clinton."
Even after any trial begins, the scheduling of an impeachment trial still remains under the control of the Senate. Under normal circumstances, the Senate does very little work on the Senate floor during January and February: Legislation must be prepared in committee, the president's State of the Union address and the budget are not presented until the end of January and Congress takes annual leave for the 10day Washington's Birthday recess. The Senate has the option to proceed with a trial during this period without any threat to a normal legislative schedule.
Moreover, Rehnquist on the bench always has displayed a businesslike, no-nonsense demeanor, insisting that proceedings move with dispatch. While presiding over the Senate, the rules give him full leave to issue writs, make rulings from the chair and keep order on the premises. His whole history suggests a conservative approach.
During the 1970s, Rehnquist was the only Nixon appointee on the Supreme Court who proved a devotee of the conservative "strict constructionist" judging on which Nixon had campaigned. Nixon's other high-court choices, Harry Blackmun and Lewis Powell, drifted to the center and even the left, but Rehnquist was willing to stake out positions that boldly challenged prevailing constitutional orthodoxies, even when it meant being a lone dissenter. In 1986, President Reagan promoted Rehnquist to chief justice.
The intellectual self-confidence that saw Rehnquist through those dissents is understandable. After World War II service in the Army Air Corps, the Wisconsin native -- an heir to the sturdy, achievement-oriented Norwegian-American culture of the upper Midwest -- earned bachelor's and master's degrees from Stanford and a second master's at Harvard, then returned to Stanford for law school, graduating at the top of his class.
He served a clerkship with Supreme Court Justice Robert Jackson. Jackson had been placed on the court by President Franklin Roosevelt, but this did not make young Rehnquist a poor fit for his staff: In those days (the early 1950s), liberals still were opponents of judicial activism because an activist Supreme Court 20 years earlier had done so much to block New Deal legislation. Jackson's politics and his clerk's belief in judicial restraint were a good match.
After the clerkship, Rehnquist established a home base in Phoenix, practicing law and dabbling in state Republican politics. When Richard Nixon was elected president, he tapped Rehnquist for the post of assistant attorney general for legal counsel, a job that has more than once proved a springboard to the Supreme Court, as it requires both legal brilliance and political sensitivity. In 1971, Nixon named him to the high court.
In 1986, Chief Justice Warren Burger retired, and Reagan made a surprising move: Instead of reaching outside of the Supreme Court for a suitably conservative chief justice, he offered the top position to Rehnquist; then, to fill the associate-justice vacancy thus created, Reagan picked the still-obscure Antonin Scalia, who since has become famous for intellectual fireworks on the conservative side of constitutional law.
The organized left made a serious effort to block Rehnquist's confirmation as chief justice; the fight was a nasty one by the standards of those pre-Anita Hill, pre-Terry Lenzner days. However, with the Senate still in Republican hands in those days, the stop-Rehnquist effort failed. Meanwhile, the left had so exhausted its fire over Rehnquist that it had none remaining for Scalia, who waltzed through a brief, love-lest confirmation process.
As chief justice, Rehnquist's emphasis has shifted from being the prophetic conservative voice to forging majorities for more-or-less conservative outcomes. The prophetic role has been more than adequately filled by Scalia. While the arrival on the court of Anthony Kennedy and Clarence Thomas has given conservative judicial philosophy a few triumphs, there are a great many other cases where Rehnquist has taken on the role of writing majority opinions that hew to the middle of the road, leaving Scalia and Thomas to concur separately or even to dissent. Some observers insist this is a form of "damage control" that a chief justice can achieve by virtue of his right to assign the writing of the court's majority opinion as long as he is in the majority. (When the chief is in dissent, the right to assign the writing of the court's opinion passes to the longest-serving justice in the majority.)
Rehnquist has stuck to his view that the Due Process and Equal Protection clauses of the 14th Amendment do not authorize courts to create new "constitutional rights" to suit the agendas of activist organizations or trendy law professors. Thus, he wrote a dissent from the court's 1992 reaffirmation of Roe vs. Wade and also joined Scalia's even angrier dissent in that case. He also wrote the court's opinions in the 1997 assisted-suicide cases, holding that the 14th Amendment does not make assisted suicide a constitutional right.
Besides his service on the Supreme Court, Rehnquist also has emerged as an author of high-brow popular books on legal history. His first was called simply The Supreme Court; his second, Grand Inquests, is being widely read on Capitol Hill because it is a history of two major impeachment trials, including that of President Andrew Johnson who, until joined last month by Clinton, had been the only U.S. president to be impeached.
In Grand Inquests, Rehnquist relishes one moment where Chief Justice Salmon P. Chase, presiding over Johnson's impeachment trial, ordered the galleries cleared because of an outburst of huzzahs for the prosecution (that is, for the House managers).
More to the point, Rehnquist criticizes Chase for being overly ambitious in politics. Chase had wanted to be president; some of his enemies charged that even as chief justice, he still did. Thus, Rehnquist plainly is opposed to chief justices being partisan, overtly or covertly, when presiding over an impeachment trial. Unlike Chase's earlier ambitions, Rehnquist never has wanted to be president; indeed, the only office he appears to covet now is that of retired chief justice.
If there is anything about Rehnquist's record on the court that has rankled even some of his erstwhile well-wishers, it is that he sometimes is too deferential to government power. He has upheld the independent-counsel statute, allowed states to convict people of child abuse without an opportunity to face their child-accusers in court (despite Scalia's furious dissent), and has never met a search and seizure he didn't like. Furthermore, some on the political right say he has grown squishy on at least some social issues: Though he once dissented from an attempt by the court to impose the Equal Rights Amendment by judicial decree, he recently concurred with Justice Ruth Bader Ginsburg in forcing the Virginia Military Institute to drop its all-male tradition.
The accepted rumor among Washington's conservative legal establishment is that Rehnquist is holding onto his tenure as chief justice despite advancing age and some health problems. The rumors say that he will continue to hang on through 2000, so a Republican president can pick the next chief justice. But if the Republicans fail to win the presidency again in 2000, say these observers, he will not wait until after 2004: He believes he already has done more than his share.
David Wagner is professor of constitutional law at Regent University, Chesapeake, Va.…
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: Rehnquist's Call. Contributors: Wagner, David - Author. Magazine title: Insight on the News. Volume: 15. Issue: 3 Publication date: January 25, 1999. Page number: 10. © 1999 News World Communications, Inc. COPYRIGHT 1999 Gale Group.
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