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Chief Justice Rehnquist: Soft Shoes Below the Bench

<i> Michael Q. Eagan is a partner in the San Francisco law firm of Howard, Rice, Nemerovski, Canady, Robertson & Falk. He served as a law clerk for Rehnquist in 1976-77</i>

“Chief Justice of the United States” conjures up the image of a regal master presiding over sessions of the Supreme Court and mingling easily with heads of state. William H. Rehnquist has not been training for this aspect of the job. Having clerked for him, I know his penchant for wearing Hush Puppies under his long black robes. Even on those rare occasions when he lunches at posh Washington restaurants, his choice is a cheeseburger and light beer.

Those high on pomp and ceremony may be disappointed. Nonetheless, Rehnquist will be a powerful figure on the U.S. Supreme Court as chief justice and will discharge his duties in an extremely effective manner. Though his travel will be a mere 150 yards down the corridor to the chief justice’s chambers, his move could result in substantial changes for the court and the country.

Reams have now been written about the justice. The universal conclusion is that he is very bright, very conservative and very directed. His opinions have been analyzed and re-analyzed, critiqued and re-critiqued. For many reasons--not the least of which being that I do not profess to be a constitutional scholar--I will not replay that tune. However, as a former law clerk, one who has kept in touch over the years, let me share some perceptions on why President Reagan’s nomination is a superb one.

Rehnquist is open, even affable, as I found out at our first meeting. I’d flown to Washington in the summer of 1975 to be interviewed as a possible law clerk, and was ushered into his chambers. He rose, shook my hand and I thought he almost bowed in an Oriental manner. He then sat across from me and immediately plunked his feet on the table. (Having just spent $3.00 on a shoe-shine, I was distraught seeing the Hush Puppies.) Then he began nonchalantly sipping a clear liquid that looked all the world to be Scotch. (Lifetime tenure, I thought.) But it was apple juice, and I joined him in a glass over some vanilla wafers.

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We chatted a while and then he asked, in an almost defensive manner, whether I thought I could work for him, given his conservative views. I replied that back home, down South, I was a “liberal from Stanford,” while at Stanford I was a “Southern reactionary,” and concluded that I thought I could run any play he called. As the conversation progressed, he kept returning to the human side of the equation, clearly probing whether I would fit into what he later termed a “poker table, locker room atmosphere.” He laughed readily, particularly at his own jokes, which weren’t bad. Even after I confessed that I had taken constitutional law on a pass-fail basis--cynics have seen this as a big plus for me--he offered me the job.

Thereupon followed one extremely intense year of working for the “Boss,” as he is called, more out of respect than deference, by his clerks. One thing was always clear: William Rehnquist knew exactly where he had been and where he wanted to go. His approach to important constitutional matters always seemed to be unswerving, as if he were guided by some inner gyroscope. Some would call him an ideologue, label him doctrinaire, but the characterization might just as well be “true to his own beliefs.”

His oath to uphold the U.S. Constitution is just that, a sacred pact. Time after time, during his first few years on the court, he wrote dissents in which no other justice joined. I am certain he did not enjoy being the “one dumb justice” out of nine unable to interpret the Constitution, and I don’t even think he was sure that his dissents would ultimately bear fruit. He was, however, interpreting the Constitution as he believed it, and he would not back down. To those who have suggested in the past few days that, as chief justice, he may “mellow” or change to become a “centrist” on the court, I commend this prior experience.

But why does he approach his task in the manner he does? Much has been written about his graduating first in his class at Stanford Law School, his post-graduate studies at Harvard and Stanford, his days as a lawyer in Phoenix and his heady experience in the U.S. Justice Department. But I suspect the bedrock of his approach is his Midwestern heritage and upbringing.

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It is no surprise to me, therefore, that a brilliant, dedicated man raised with such values--honesty, hard work, self-relience--when interpreting a venerable and rather vague Constitution, would arrive at the strongly held conclusions that the justice does.

Because his opinions typically decline to expand the scope of the Constitution, or, for that matter, the powers of the federal judiciary, those opinions operate, in certain cases, to protect the rights of most of the people, to the predictable--albeit perhaps short-term--expense of some of the people. It is ironic that many who read his opinions view him as harsh and uncaring, while those who know him realize the opposite is true.

His affability will probably be valuable in his role as chief justice. The justices’ workload is intense, and the Washington winters long. As chief justice, it will be his responsibility to make sure that the place, in its many aspects, functions.

Because the justices have lifetime tenure, and are appointed, not elected, the Supreme Court has been referred to as the least political branch. The chambers of the nine justices have been likened to nine separate law firms. But in order to author a majority opinion, a justice needs four other affirmative votes (in the ordinary case). The process of persuading others to join an opinion invariably leads to “intra-court” politics. Some are better at this persuasion, this form of politics, than others. Rehnquist is one of the best, if not the best.

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For example, he has recognized that early circulation of a hard-hitting draft opinion may be more effective in securing and solidifying the votes of other justices than might be a more gilded, but late-arriving opinion, suitable for dissection by law review students everywhere. I remember a case in which he began as the sole vote for a particular result. He circulated a draft opinion, got a few relatively favorable comments from other justices and circulated a redraft. The process continued, each redraft faithful to the constitutional principle espoused yet bending to embrace changes suggested by other justices. His majority opinion was published with only two dissents.

His abilities to forge coalitions can only be enhanced in the central role of chief justice. When in the majority on a particular case, the chief justice designates who writes the majority opinion. Even if five or more justices have agreed on the ultimate legal result in a specific case, the narrowness, or breadth, of the language used to reach this result may prove significant for future cases, making the assignment function critical.

He has a dry sense of humor. Once I was analyzing a case involving the due process clause of the 14th Amendment. There were two prior cases closely on point: a 1946 decision narrowly construing the constitutional principle, and a 1960 Warren Court decision giving the same principle an expansive interpretation. There were significant analytical problems with the holding of the later opinion, problems that the Boss had explored in previous writing. Even so, I decided to check. I asked which case he would prefer to follow. Without missing a beat he replied, “The 1946 case.” “Why?” I asked. “Because it is 14 years closer to the enactment of the 14th Amendment,” he replied, chuckling to himself.

None of this is to suggest Rehnquist is perfect, or even close to it, or that we should all agree with each of his opinions. The question is: What kind of chief justice will William H. Rehnquist be? Well, if you liked him as associate justice, you are going to love him as the chief.

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