Transition: Hail To The Chief

Rehnquist's wry aside, which broke the tension, was typical of the man affectionately known to his fellow justices as "the Chief." Rehnquist was quick and funny, and he made his job look easy. He had time left over to run betting pools on sporting and political contests, preside over poker games with other Washington luminaries, play bridge and charades, paint, swim, sing hymns, quote poetry and the classics from memory, and write four books on Supreme Court history. He was respected and admired by his colleagues on both sides of the ideological spectrum. The late Thurgood Marshall, who opposed Rehnquist on almost any case, called him a "great chief justice." The Supreme Court is sometimes described as "nine scorpions in a bottle," but under Rehnquist's nearly two decades as chief, the justices generally got along.

At the same time, however, he was never able to create "the Rehnquist Court," certainly not the way Earl Warren had shaped a court in his name by putting together majorities to expand constitutional rights in the 1950s and '60s. The court has moved to the right since Warren's days, but not very far right, and it has consistently upheld some liberal precedents on social issues like civil rights and abortion. Rehnquist's death last week at 80, together with Justice Sandra Day O'Connor's retirement in July and the nomination of her successor, U.S. Court of Appeals Judge John Roberts, gives President Bush a chance to shape a new court that will embrace a more conservative jurisprudence.

Rehnquist's court was deeply split, and his defeats--on affirmative action, abortion, religion, gay rights, property rights and campaign finance--outnumbered his victories, especially over the past five years. The real center of the court belonged to Justice O'Connor, a moderate who often tipped the balance to the liberal side.

The explanation is not that Rehnquist lacked leadership skills. It's just that his conservative philosophy put him well to the right of six of his eight colleagues--all but Antonin Scalia and Clarence Thomas. In a polarized, fractious age, it is hard to imagine any chief justice persuading any other justice to change his or her mind on anything big. The justices are, as Rehnquist once joked, "as independent as hogs on ice."

In his 33 years on the court, Rehnquist presided with humor and dignity over some epic moments, including the impeachment trial of President Bill Clinton in the U.S. Senate in 1999. But his court's most memorable decision to most Americans was probably the 5-4 ruling in Bush v. Gore in 2000. Rehnquist suggested that the five justices had voted to uphold Bush's election to avoid a "national crisis." But the court divided pretty much along partisan political lines and used reasoning that many legal scholars scoffed at as weak. The decision arguably left a blot on Rehnquist's record.

As a boy in the 1930s, Rehnquist was exposed to politics by his anti-New Deal Republican father in a well-to-do Milwaukee suburb. As an Army Air Corps weather forecaster during the second world war, Rehnquist spent time drinking in Frederick Hayek's free-market, anti-socialist tract "The Road to Serfdom." As a law clerk for Supreme Court Justice Robert Jackson in the early 1950s, he wrote a memo that the Supreme Court should affirm the "separate but equal" Southern school systems and that it was "about time the Court faced the fact that the white people in the South don't like colored people." Rehnquist later distanced himself from this memo, saying that Justice Jackson had asked him to make the best case for segregation (even though Jackson voted against it).

A Goldwater Republican, the tough-on-crime Rehnquist was brought into the Nixon administration's Justice Department as head of the Office of Legal Counsel. With his loud shirts and ties, Hush Puppies and long sideburns, he did not make the best of impressions on first meeting Richard Nixon, who later remarked that Rehnquist was "dressed like a clown" and called him "Renchburg."

But when Nixon wanted a brainy conservative for his fourth Supreme Court appointment, Rehnquist got the nod. For years thereafter, he held down the court's right flank with gusto and wit, often chastising colleagues for failing to respect majority rule and scaring liberals enough to inspire all-out opposition to his nomination as chief justice under Ronald Reagan in 1986. Until he found right-wing allies in the appointments of Scalia (1986) and Thomas (1991), Rehnquist was cheerfully known by his clerks as "the Lone Ranger."

While steadfastly conservative, he never had an ideologue's passion for abstract principles. His opinions were straightforward, with no frills. He will not be remembered as a Holmes or Brandeis. Unlike the even more conservative Scalia, he rarely showed anger or hurled scalding rhetoric at his colleagues. He had, he explained to Charlie Rose in a televised interview last year, "a very high boiling point."

Rehnquist did not "turn back the clock on civil rights," as opponents predicted. And he occasionally surprised friends and adversaries alike by writing or joining decisions applauded by liberals. He expanded the media's First Amendment protection from lawsuits, reversing a jury award to TV evangelist Jerry Falwell for his "emotional distress" over an extremely crude parody in Hustler magazine. Rehnquist also went to bat against gender discrimination, requiring the Virginia Military Institute to admit women. Perhaps his most surprising decision was a resounding reaffirmation five years ago of the Warren Court's ruling in Miranda v. Arizona. It had long been believed that the pro-law-and-order Rehnquist wanted to overturn the court's 1966 decision requiring police to read a suspect his rights. But Rehnquist always believed that the courts should show deference to majority rule, and after three decades a large majority of Americans approved of Miranda.

Rehnquist was a fierce defender of judicial independence. And he did have success pushing the cause of states' rights against the power of the federal government. Former clerk Charles Cooper calls his federalist agenda a "modest revolution."

What many hard-line conservatives want, of course, is a real revolution that will roll back affirmative action, permit more prayer in schools and, most important to activists, reverse the court's 1973 decision in Roe v. Wade giving women a right to abortion. Bush will be under considerable pressure to choose a persuasive and passionate conservative to fill Rehnquist's seat. Many true believers were disappointed that Roberts does not appear to be a doctrinaire conservative.

With Rehnquist's death, the guessing game will begin in earnest this week in Washington. If Roberts is easily confirmed in the next few weeks with, say, more than 70 votes, the White House may feel it can take a chance on a more fiery or more predictably right-wing pick. A favorite of the true believers is Judge Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit. But Luttig would be another white male, and with O'Connor's departure, the pressure will be on to find a conservative woman or minority member. Judge Edith Jones of the Fifth Circuit might fit the bill. Bush is said to like former deputy attorney general Larry Thompson, an African-American who is now an executive with PepsiCo.

Bush is loyal to his friends--and eager to pull more Hispanic voters under the Republican tent. Attorney General Alberto Gonzales, an old friend from Texas, would be very popular among Hispanics. But his nomination would alarm conservative activists who think he is weak on abortion. Bush and his political adviser Karl Rove are also said to like federal district court Judge Ricardo Hinojosa.

There are several plays that the White House could use to try to satisfy all sides. One move would be to make Scalia chief justice--pleasing the right--while putting a Hispanic on the court to win over more Republican voters. The jockeying will start right away, though it is unlikely that Rehnquist's successor will be named until Roberts has been confirmed.

Whoever takes Rehnquist's place will have a hard time replacing his plainspoken, good-humored common sense. In 1989, Rehnquist dissented from a decision recognizing a First Amendment right to burn the American flag as a form of symbolic protest. He digressed from citing precedents to quote patriotic poems. " 'Shoot, if you must, this old gray head/ But spare your country's flag'," he wrote. His message was refreshing. Spare me the legalisms, he seemed to be saying; this is our flag, for God's sake. Rehnquist will not be remembered as a giant of the law, but he served his court--and his country--for more than three decades with intelligence, a courtly patience and a clear sense of right and wrong.

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